You are on page 1of 11

AndreJ M.

Daniel Davis, City Solicitor


Sparaco
Department of Law -- City Hall 101

Law Department Process to Aid in the Handling


of Information Contained in BPD IA Files
Information
Marilyn Mosby, State’s Attorney for Baltimore March 9, 2018
City; Michael Schatzow, Deputy State’s Attorney

The purpose of this Memorandum is to set forth the terms of the agreement

between the Baltimore City Law Department and the Baltimore City Office of the

State’s Attorney in respect to the identification and production of information

contained in records maintained by the Internal Affairs Department (“IA”) of the

Baltimore City Police.

INTRODUCTION

The challenges identified, and the need for reformed procedures, presented

in this Memorandum arise from the tension inherent in the conflicting legal

standards applicable to criminal discovery under law and, in particular, the system

of criminal justice followed in Baltimore City. Increasingly in recent years,

subpoenas have been issued to the Baltimore Police Department (“BPD”) seeking

the production of IA records by defendants being prosecuted by the Office of the

State’s Attorney (“OSA”). This phenomenon has arisen, in part, because of past

uneven processes and a lack of cohesion in the discovery practices (involving the
Page 2 of 11

BPD, the OSA, and the defense bar) prevalent in the Baltimore City criminal

justice system. For example, so-called “use of force” information has not been

routinely provided to the OSA by individual officers or the BPD, but such

information has been included in IA files, to which the OSA did not have

immediate access. This and similar practices have led to increased

disputatiousness between the State and the Defense, and has led to a drain on the

resources of agencies called on to fight battles over access to information.

IA records specific to an officer are confidential personnel records. See MD

Code Ann., Gen. Prov. §4-311(a); Maryland Dept. of State Police v. Dashiell, 443

Md. 435 (2015); Montgomery County v. Shropshire 420 Md. 362 (2011); Kirwan

v. The Diamondback, 352 Md. 74 (1998). As custodians of such records, officials

of the BPD have an unambiguous duty to prevent unauthorized disclosure of IA

records. In general, absent a court order authorizing disclosure, the City Law

Department instructs BPD officials to refuse production of such records. See MD

Code Ann., Gen. Prov. §4-311(a) (“a custodian shall deny inspection of a

personnel record of an individual, including an application, a performance rating,

or scholastic achievement information”); see also MD Code Ann., Gen. Prov. §§ 4-

301(a)(1); 4-304; Shropshire 420 Md. at 383; Dashiell, 443 Md. at 459 (“Because

the records requested by Ms. Dashiell relate to discipline of Sergeant Maiello, they

are “personnel records” and exempt from disclosure under Section [4-311(a) of the

General Provisions] Article.”). Unauthorized disclosure of such records constitutes


Page 3 of 11

a criminal offense. See Md. Code Ann., Gen. Prov. §4-402(b)(“A person who

violates any provision of this section is guilty of a misdemeanor and on conviction

is subject to a fine not exceeding $1,000.”).

Historically in the criminal justice system of Baltimore City, the confidential

character of IA records has been abrogated through a cumbersome three-step

procedure which involved the awkward involvement of the City Law Department,

the Office of the State’s Attorney, members of the Defense Bar (including, most

saliently, members of the Maryland Public Defender’s Office) and, ultimately, the

judges of the Circuit Court for Baltimore City. In sum, the widely recognized

steps in this historical practice were: (1) a criminal defendant would make a more-

than-conclusory factual and legal proffer as to the basis for the necessity to inspect

an IA record; (2) the circuit court would conduct an in camera review of the IA file

to determine the propriety of, i.e., the scope of, any required disclosure to the

defense; and (3) the court would determine the specific parameters of, and later the

admissibility of, any information disclosed. Typically, the Law Department would

seek a protective order from the court (or encourage the OSA to do so) at some

stage in this cumbersome procedural regime. See Fields v. State, 432 Md. 650,

666-67 (2013); Robinson v. State, 354 Md. 287, 309 (1999).1

1
Zaal v. State, 326 Md. 54 (1992), is a seminal case and one source of a
measure of confusion among practitioners regarding criminal discovery. For all the
primacy accorded to the case, Zaal actually had nothing whatsoever to do with the
Page 4 of 11

The adversarial issues arise when the defense files a “Motion for Subpoena

for Tangible Evidence” for IA records and serves the motion on the BPD. Within

almost every single motion are arguments directed at the OSA, made on grounds

pertaining to the prosecution’s criminal discovery obligations. In other words, the

historical practice has involved defense reliance on the prosecution’s discovery

obligations as the reason the court should issue a subpoena for “tangible evidence,”

i.e., IA records maintained by the BPD.

challenges presented by the unique circumstances implicit in potential defense


discovery of information contained in Baltimore City Police IA files. Rather, Zaal
simply held that when confidential, statutorily-protected information contained in
files in the possession of a state agency might be relevant and useful for cross
examination (or might lead to such information), once that determination is made,
then the trial court must conduct a balancing test to determine whether defense
counsel who subpoenas such files (1) should be permitted to examine the files and,
if so, (2) whether that examination should take place in the presence of the court or
outside the presence of the court.

Likewise, Fields is nothing more than a rather plain (and one could say
graphic) misapplication of Zaal by a motions judge who failed to examine IA records
at all, an error compounded by a further error by the trial judge in failing to permit
proper cross-examination on the basis of the non-disclosure of information
proximately caused by the prior error of the motions judge. Attention is sometimes
called to Judge Barbera’s reiteration in Fields of the broadly-worded statement in
Zaal that review of an IA file should be denied only if nothing in the file “in anyone’s
imagination [could] properly be used in defense or lead to the discovery of usable
evidence.” 432 Md. at 669 (quoting Zaal, 326 Md. at 88.). But that admonition was
made (in Zaal) about the duty of a trial court undertaking its preliminary review of
third party records and files for the purpose of deciding whether to proceed to the
next step in a regime mandated in such circumstances under Zaal. In neither Zaal
nor Fields is that statement directed at or to prosecutors nor could it be under the
reasoning and holding of those cases.
Page 5 of 11

In the view of the State’s Attorney and the City Solicitor, the above process

is misplaced, unnecessarily burdensome, and frankly inimical to the just, fair, and

efficient administration of the criminal discovery process and to the rational

administration of criminal justice, more generally. It is undisputed that the defense

in a criminal case has a constitutionally guaranteed entitlement to receive from the

prosecution information that is exculpatory of the defendant’s involvement in the

charged offenses and information which may serve to impeach the testimony of a

government witness.2 Under Robinson, IA records maintained by the BPD are in

the constructive possession of the OSA. 354 Md. at 209. The BPD is an integral

component of the prosecution of the vast majority of offenders in Baltimore City.

Thus, it follows that the prosecutors in the OSA have an affirmative obligation

2
As the Second Circuit summarized in Coppa:

The government’s obligations under Brady v. Maryland, 373


U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), are seemingly well-
established. The prosecution has a constitutional duty to disclose
evidence favorable to an accused when such evidence is material to
guilt or punishment. See Brady, 373 U.S. at 87, 83 S.Ct. 1194. This duty
covers not only exculpatory material, but also information that could be
used to impeach a key government witness. See Giglio v. United States,
405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Brady does
not, however, require the prosecution to disclose all exculpatory and
impeachment material; it need disclose only material “that, if
suppressed, would deprive the defendant of a fair trial.” United States
v. Bagley, 473 U.S. 667, 675, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).

United States v. Coppa, 267 F.3d 132, 135 (2nd Cir. 2001); accord Carr v. State,
284 Md. 455 (1979); Leonard v. State, 290 Md. 295 (1981), aff’g 46 Md.App. 631,
637-39 (1980).
Page 6 of 11

under Brady and Giglio (and the related rules of criminal discovery) to identify and

disclose exculpatory and impeaching information to the defense that is contained in

IAD records; manifestly, those prosecutors are entitled to unfettered access to the

information contained in those records. “Prosecutors with a clear understanding of

Brady/Giglio requirements and of their professional responsibilities will readily be

able to observe the applicable standards.” United States v. Coppa, 267 F.3d 132,

143 (2nd Cir. 2001). The BPD has always provided IA records to the OSA and will

continue to do so in accordance with the procedures in this memorandum.

It is important to observe that much of the troublesome nature of the past

practices has arisen from excessive attention paid to “files” and “documents” as

opposed to the information contained in those files and documents. This

Memorandum contemplates that in the great majority of cases, what will be

produced to defense counsel in the ordinary course is exculpatory and impeaching

information, e.g., the names and addresses of persons, the statements and

assertions of such persons, and findings resulting from a disciplinary process. It is

expected that only in the rare case will an actual document contained in an IA file

be turned over in discovery, i.e., only when the fact of the document’s existence is

sufficiently material that its admission into evidence is all but assured.

PROCEDURES

Effective immediately, the City Law Department will take the steps outlined

below to ensure that members of the OSA will be fully capable to perform their
Page 7 of 11

constitutional, statutory, and rules-based duties as criminal prosecutors to make

affirmative disclosures of information contained in BPD IA records.

Voluntary Disclosure to Trial Prosecutors of the Existence and Content of


Officers’ IA Files

Effective immediately, the State’s Attorney for Baltimore City and the City

Solicitor shall jointly implement a major policy enhancement in criminal justice

reform in Baltimore City. As a matter of criminal justice policy required by the

federal and state constitutions and in light of the need for positive reforms in the

pursuit of fairness and integrity in the City’s operation of the local criminal justice

system, in respect to all felonies and all serious misdemeanors, all Baltimore City

police officers must promptly disclose, with or without a specific request by the

trial prosecutor handling a case in which the officer is an intended state witness,

whether, to the best knowledge and belief of the officer, an IA file charging the

officer with misconduct presently exists. The disclosure shall be made at the

earliest practicable time and shall be made regardless of whether prior

charges against the officer were sustained, and whether the matter is closed or

open. The State’s Attorney and the City Solicitor are firm in the belief that the

requirement that officers voluntarily disclose the existence of their own IA files to

trial prosecutors is the proper method to achieve the shared goals of: (1)

streamlining the process for the identification and disclosure of misconduct

information in IA files that is either exculpatory or impeaching; (2) ensuring that


Page 8 of 11

the privacy interests of police officers are afforded the protection to which the

officers are entitled under state law (both LEOBR and MPIA); and (3) creating the

reality of, as well as the perception of, a well-functioning criminal justice system in

Baltimore City.

Honoring Routine Requests from the OSA

The City Solicitor shall assign a member of the Law Department as the

“Baltimore City Law Department Criminal Discovery Liaison.” Upon the

submission by a prosecutor in the OSA of a request to the Criminal Discovery

Liaison to inspect any IA record, the Criminal Discovery Liaison shall, within 48

hours of the receipt of the request, electronically send to the OSA the requested

records maintained by the BPD. Any such request from the OSA shall contain the

name and sequence number of the BPD member who is the subject of the request.

This procedure shall be followed regardless of whether the request is generated as

a result of a specific inquiry by a defense lawyer or on the prosecutor’s own

initiative. The prosecutor to whom the IA file is provided will promptly review the

file to identify any information contained within the file that, in the judgment of

the prosecutor, is properly to be disclosed under controlling law, and in light of the

nature, character and context of the particular charges underlying the case.

Requests in the Form of Subpoenas

If, despite the above-described procedures, the BPD or the City Law

Department is served with a subpoena for IA files, the Criminal Discovery Liaison
Page 9 of 11

will promptly notify the defense attorney who is seeking the file and the

responsible prosecutor in the OSA that within 48 hours (or as soon thereafter as

may be practicable), the IA file will be electronically provided to the prosecutor

handling the particular case. If the defense attorney objects and seeks the

intervention of the court, then it is expected that an attorney from the Baltimore

City Law Department will appear in court to respond to the court’s intervention.

Should the court order production of any IA records to defense counsel rather than

accept the Law Department’s commitment to produce the file to the OSA, then the

Criminal Discovery Liaison shall proceed to produce such information to the

defense as the court may order.3

3
By relieving the circuit judges of excessive responsibilities to superintend
our discovery between the litigants, who after all are supposed to manage it
themselves as the Maryland Rules contemplate, see, e.g., Rule 4-263(c)(1)(“The
State's Attorney and defense shall exercise due diligence to identify all of the
material and information that must be disclosed under this Rule.”), any extended
discussion of protective orders is unnecessary. The City Law Department
confirms that the OSA may (as co-custodian of the records, see Robinson, 354
Md. at 309) disclose information or documents in an IA file to criminal defense
counsel without a protective order. OSA lawyers will have full access to the
entire IA file, and even in those cases in which a prosecutor permits an
examination of material in the file by defense counsel, defense counsel will
acknowledge in writing that the disclosure is for the limited purpose of
counsel’s use (in the subject prosecution only) in (1) written motions and
memoranda, (2) an evidentiary hearing, or (3) at trial if and as the
information/document is allowed by the court, and that any further or wider
disclosure of the information or document will subject that lawyer and those
acting in concert with that lawyer to the civil and criminal penalties for
unauthorized disclosure generally applicable under state laws that protect
confidential personnel records from unauthorized disclosure.
Page 10 of 11

Completeness of Records and Files

The City Law Department hereby certifies that to the best of its knowledge,

information and belief, every IA record produced to the OSA will be, in every

material respect, complete and will be in the condition in which it is kept in the

ordinary course of business by the BPD. Notwithstanding the assurance contained

in this paragraph, should any concern arise at any time regarding the completeness

of the IA record produced, upon notification by the OSA to the Criminal Discovery

Liaison, the City Law Department will immediately undertake a further

investigation to ensure that no information possessed by the BPD has been omitted

from the records produced. If, thereafter, additional IA records are located, the

Criminal Discovery Liaison shall promptly provide such information to the OSA.

BPD’s obligation to supply responsive IA records to the OSA is continuing

in nature and extends through the term of the litigation for which the request was

made. Should BPD discover IA records that are responsive to an earlier request,

prior to the termination of the litigation, BPD will immediately alert the OSA in

writing as to the existence of such material and subsequently provide the material

to SAO as soon as possible.

CONCLUSION

The streamlined procedures set out in this Memorandum will enhance the

efficiency of the criminal justice machinery critical to a safe and secure Baltimore

City. The City Law Department stands ready to modify and amend the procedures
Page 11 of 11

explained above whenever those procedures might be improved. More broadly, the

Baltimore City Law Department acknowledges that it is a partner of the Office of

the Baltimore City State’s Attorney in our common interest in promoting

Baltimore as a safe, healthy and welcoming community in every neighborhood of

the city.

You might also like