Professional Documents
Culture Documents
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
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
subpoenas have been issued to the Baltimore Police Department (“BPD”) seeking
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
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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
disputatiousness between the State and the Defense, and has led to a drain on the
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
records. In general, absent a court order authorizing disclosure, the City Law
Code Ann., Gen. Prov. §4-311(a) (“a custodian shall deny inspection of a
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
a criminal offense. See Md. Code Ann., Gen. Prov. §4-402(b)(“A person who
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,
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
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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
obligations as the reason the court should issue a subpoena for “tangible evidence,”
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.
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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
charged offenses and information which may serve to impeach the testimony of a
the constructive possession of the OSA. 354 Md. at 209. The BPD is an integral
Thus, it follows that the prosecutors in the OSA have an affirmative obligation
2
As the Second Circuit summarized in Coppa:
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).
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under Brady and Giglio (and the related rules of criminal discovery) to identify and
IAD records; manifestly, those prosecutors are entitled to unfettered access to the
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
practices has arisen from excessive attention paid to “files” and “documents” as
information, e.g., the names and addresses of persons, the statements and
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
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Effective immediately, the State’s Attorney for Baltimore City and the City
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
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)
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.
The City Solicitor shall assign a member of the Law Department as the
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.
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.
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
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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
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
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.
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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
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
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.
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
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
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explained above whenever those procedures might be improved. More broadly, the
the city.