You did it, Mr. Bernstein. Now own it.

18 Sep
September 18, 2012

That elected officials will lie, dissemble and reverse course to avoid a proper public accounting is no remarkable thing.  Politicians, bless their hearts, are very much akin to those fabled pigeons in B.F. Skinner’s boxes.  If they peck diligently at the little metal bar, they expect to receive — every two or four or six years — another food pellet, or failing that, a painful electrical charge.

It’s no wonder that such constricted and vulnerable creatures gravitate toward reptilian moments.  Other than to let the lower brain hold sway, how can an elected officials be sure to acquire the certain and scheduled pleasure and avoid the certain and scheduled pain?

Often, the lies are nuanced and careful, lodged as they are in relative safety of vague generalities and uncertain facts.  An equivocation works best when there isn’t a long, contradictory reality trailing behind.  But every now and then, someone lets go of something so bald, so shameless that it’s just plain amusing, if not a little inspiring.

“Read my lips,” declared William Donald Schaefer to a cluster of reporters at the statehouse one day.  “I never said it.”

And Maryland’s governor stared at his interlocutors firmly, convinced in that enormous melon head of his that he could simply glare his imperious way past whatever previous utterance he now wished to disavow.

“Read my lips,” replied The Sun’s Doug Birch.  “I have it on tape.”

Mr. Schaefer paused for a long – not too long – moment before putting his rudder on a fresh tack:  “Okay, I said it, but…”

That’s a pro at work, ladies and gentleman.  When the facts are against you and the facts are irrefutable, you punt.  And then, if you are really good, you act as if you meant to punt all long.

*         *         *

On the other end of political continuum we have Baltimore State’s Attorney Gregg L. Bernstein, who has transformed the dynamic between his office and the Baltimore Homicide Unit so that half as many homicide defendants were charged under his watch than under the previous two years – as steep a decline in the deterrent against murder as modern Baltimore has witnessed.

He did this quietly.  But he did it.  Specifically, he sent a Deputy State’s Attorney to meet with the Homicide Unit commander to seek unilateral authority over when a suspect is charged.  In arguing for such to then-Major Terrance McLarney, that deputy, George Hazel, made a definitive argument to change a policy that had been in effect under the previous administrations of Pat Jessamy, Stuart Simms, Kurt Schmoke and Bill Swisher.  Mr. Hazel argued, correctly, that many other jurisdictions leave the ultimate decision about when to charge a suspect to prosecutors.  Major McLarney replied, correctly, that as many others do not vest such authority solely in the prosecutor’s office.  Mr. Hazel told the police commander that nonetheless, Mr. Bernstein wanted this change here in Baltimore.  Major McLarney demurred and said that while he was commanding the unit, detectives would not relinquish their role in charging suspects, albeit they would do so in continued consultation with prosecutors.

A week or so after that meeting, the major filed charges in a couple cases in which he felt prosecutors were being too timid and in which earlier prosecutorial requests for additional investigative work had been fulfilled.  That prompted a heated phone conversation between Major McLarney on one end of the line and Mr. Hazel and veteran prosecutor Donald Giblin on the other.  Some short days thereafter, in June of last year, the major was ordered upstairs and confronted by then-Commissioner Fred Bealefeld, who attempted to fire him outright.  Upon being informed later that he could not actually do so without cause under the city’s civil service rules, Mr. Bealefeld was instead obliged to satisfy himself by transferring the major from his homicide command and busting him back to lieutenant.

The acting command of Homicide then fell to another veteran investigator and supervisor, Lenny Willis.  Lieutenant Willis – as well as many other supervisors in the homicide unit – was wholly aware of Mr. Bernstein’s newfound desire to have unilateral authority over the charging of suspects, of Major McLarney’s stated opposition, and certainly, of what fate had befallen his predecessor. Nonetheless, Lieutenant Willis also believed that Mr. Bernstein’s office had become too timid, charging only the easiest of prosecutions and avoiding any case that wasn’t open-shut.  He, too, attempted to obtain several warrants unilaterally and he, too, was suddenly called on the carpet by his superiors.  This second dust-up was cogently reported by Justin Fenton of The Sun at the time it occurred.

In response – and here is a paper-trail smoking gun, if anyone still requires a smoking gun – Lieutenant Willis penned and forwarded an electronic memo to all of the supervisors in the homicide unit. That memo, dated October 7, 2011 and sent at 9:27 a.m., was sent to all other lieutenants and sergeants in the unit.  It reads, in full:

“Congratulations. This week we have obtained 6 arrest warrants for five 2011/2010 homicides.  Only one warrant was “approved” by the SAO.  And therefore, effective immediately, Homicide cannot authorize any arrest warrants independent of SAO agreement, without direct approval of the Deputy of Operations.  Thank you,”

And then he signed it.

The italicized emphasis is my own, given that it indicates the precise moment when Mr. Bernstein – despite his denials — did in fact obtain, in writing, a dramatic change in charging process.  One other thing that bears mentioning are the quotes around the word “approved.”  Those are not my emphasis; they belong to Lieutenant Willis.  As someone who covered the Baltimore department for twelve years, I can attest that cold sarcasm is at a minimum in the vast majority of respectfully-submitted departmental memos. Yet here the use of quotes — following as it does his congratulations to detectives for obtaining those warrants in the first place — is evidence not only the low regard that Lieutenant Willis had for prosecutor’s actions, but just how unique the new, required “approval” by prosecutors was at that moment.  If prosecutors had been approving charges for at least a decade prior, as Mr. Bernstein and his office now attempts to assert, why not simply reference the decision? Why use the quotes to remark on the novelty of such approvals?

The creation, in this memo, of a seeming appeals process to the Deputy Commissioner for Operations is also a tell-tale, if you follow the obvious logic.  Why is a new appeals process required if this is merely a continuation of a decades-old policy?  Surely, over the course of ten or more years, there had been other disputes between detectives and prosecutors?  Only now, in this very memo that makes SAO approval a requirement, effective immediately, does a new appeals logic also arrive?  Really?

As to any actual safeguard in such an appeals policy, there is none for detectives or for the department, of course.  Make no mistake:  There is no practical way to appeal the decision of whether or not to charge in an individual homicide case to the Deputy Commissioner for Operations, the number two man in the Baltimore department.  Why not?  Well, in the words of one veteran detective:  “It would be the equivalent of a squad leader on the ground in Afghanistan disagreeing with an operational order and appealing that order to Joe Biden.”

The number two man in the department is going to be in no way familiar with any casework in the homicide unit.  Confronted with an argument between a prosecutor and a detective over the particulars of a given investigation, the Deputy Ops is not going to intervene and risk his own political capital. Tellingly, despite widespread disappointment with a series of charging decisions in various cases, no homicide detective or supervisor has – in the eleven months since the lieutenant’s memo – appealed a solitary case to the deputy commissioner.

Lieutenant Willis did not cease contending with the new dynamic with that memo either.   He continued to battle the new policy until he was summarily transferred to the Cold Case Squad in homicide.  At that point, he retired from the department.

When the change in policy and its effect on homicide prosecutions was first detailed on this website some months ago, Mr. Bernstein responded with a telling, and frankly disturbing, stance.

In remarks to the Baltimore City Paper‘s Ed Ericson after a meeting of the city’s Criminal Justice Coordinating Council, a quorum of judges, attorneys and police commanders who meet to hone the city’s criminal justice system, the State’s Attorney declared bluntly that the statistics cited here were wrong, and further, that “they were the wrong way to look at the issue.”  Further, when Mr. Ericson sought to follow up regardless, Mr. Bernstein’s spokesman provided data that reflected no decline at all in the rate by which murder defendants are being charged.   This data was corrupted – dramatically so – by the simple fact that the dispositions of murder cases are, more often than not, recorded in a later year than the crime.  By crediting casework before the steep decline in homicide indictments, the State’s Attorney’s Office had made it seem as if there was no substantive change in the charging rate, when in fact, the decline will be recorded as the current year progresses and, indeed, into next year, as well.

Upon being confronted by Mr. Ericson with this statistical flummery, the prosecutor’s subordinates then – in the same fashion as the aforementioned governor — took a long breath, backed up, and provided a year-by-year, case-by-case accounting of homicide dispositions, and guess what?  The statistics cited here were, at the moment they were published online, quite accurate.

Simply put, Mr. Bernstein lied after the coordinating council meeting.  And further, in his initial parry-and-thrust with Mr. Ericson and the City Paper, his office attempted to marry the dishonesty to actual, albeit wholly inaccurate statistics.  Now, with the original critique of the new charging policy still standing, Mr. Bernstein’s second response is to simply say that the stats don’t matter, that his office is going to do a better job of investigating murders, and is going to go back into those cases where more and better casework will produce results.

But even more flagrant is a final dishonesty here:  Having backed himself into this corner, Mr. Bernstein and others in his office have decided to double down.  Incredibly, they are now denying that there is even a new charging policy.  They are doing so when the paper trail can be followed plainly, and is indeed littered not only with sardonic memos, but the bleeding carcasses of a couple veteran homicide commanders.  My recounting of the efforts that Mr. Bernstein and his office undertook to change the policy – the meetings between his deputy and a police official, the angry phone call, the summary dismissal and transfer of one veteran homicide commander, the end of a second commander’s career in abject frustration – these do not actually require Lieutenants McLarney and Willis as sources.  One has lost two ranks in his attempt to battle the change and says he sees no reason to talk further; the other is long gone.

No, all of the above facts are easily obtainable by spending a single afternoon in a cop-friendly bar, standing around with current members of the Baltimore city homicide unit.  They were bystanders to the turmoil in their unit.  They know what happened to two of their better commanders and why.  They know the tale — all of them.  Cite Mr. Bernstein’s claim that there is no change in policy and you are met with dry stares and head shakes.  From one:  “You go to in-service training at the academy and they actually have a representative from the state’s attorney’s office there to explain the new policy.”

Most of these men supported Mr. Bernstein in his quest to unseat incumbent state’s attorney Pat Jessamy.  They found Ms. Jessamy too timid as a prosecutor and blamed her for a perceived reluctance to bring the tough cases into court.  Mr. Bernstein made such perceptions the cornerstone of his insurgent campaign.  He was convincing.  He had the votes of much of the city homicide unit.

And now?

“This guy makes Pat Jessamy look like a gunslinger.”

To get a quote like that, you don’t need to buy more than your share at the bar.  One round in four or five, at worst.

*         *         *

When I first wrote on this issue several months ago, I expected Mr. Bernstein to defend himself on plausible terms.  I did not expect him to dissemble.  I did not expect him to attempt to sell manufactured and mangled stats wholesale to other reporters.  I did not expect him to baldly deny seeking a policy that he achieved only after pronounced infighting with a pair of veteran police commanders, who lost not only the battle but their standing as well.  I gave him more credit.

I expected that he would defend his performance by arguing that he was every bit the hungry, aggressive prosecutor that he had sold to Baltimore voters. I expected him to say that he wanted to prosecute more cases but that the quality of the casework being brought to him by Baltimore detectives was too often poor and insufficient.  I expected that he would point out that if you charge a murder that you can’t win in court then it is no victory, and that by continuing to work the cases longer and in more detail, he would in the end achieve better results.

On reflection, though, the first two arguments are problematic.  They were the arguments that Ms. Jessamy made when contending with Mr. Bernstein’s election-year criticisms.  Awkward, indeed. The third argument is one that he has invoked.  Mr. Bernstein uses it and declares that to simply cite the statistical decline in homicide arrests is ignorant and superficial.   Instead, Mr. Bernstein argues that if you look at the individual cases, you will discover that his office is taking more time and greater care to hone better casework before charging defendants, working borderline cases into finer, more viable prosecutions.

But if  he truly believes that, I am now going to suggest that the situation is worse than I initially thought.

For one thing, to believe in such a scenario shows poor understanding of the dynamics of murder investigation in a city such as Baltimore.  While no one is advocating that prosecutors and police charge defendants in which there is not sufficient probable cause to make an arrest – and sufficient evidence for a grand jury indictment and due consideration by a petit jury – waiting for the nth degree of evidence to assure a conviction in too many cases at once will not actually strengthen the majority of prosecutions.  It will achieve the opposite effect.

Why?  Two practical reasons.

First, death investigation in Baltimore is not death investigation in a suburban county.  City detectives are in a fixed rotation, catching homicides, shootings and questionable deaths every time they go to a night shift.  Fresh cases overwhelm older ones, and inevitably, some case files will languish beneath the weight of more recent violence.  The caseload is unending and the manhours finite, and time is not always a prosecutor’s friend in actual practice.  At a certain point, delaying too many viable cases in the hope of obtaining additional evidence in many of them is going to yield diminishing returns.

But second, and more specifically, Mr. Bernstein’s new policy has created a dynamic that actually ties the hands of skilled homicide detectives.   First, by denying detectives the ability to charge defendants immediately during interrogations, he has denied them the opportunity to leverage additional statements from defendants – a practical interrogative tactic that is basic to the way cases are built.

As a matter of routine, a defendant who is talking to police, attempting to extricate himself, may attempt an exculpatory statement and be caught in a lie, or he may float an alibi that proves unsustainable, or he may slip and and implicate himself in some aspect of the crime.  Previous state’s attorneys trusted veteran detectives to see such a moment as the opportunity that it is:  Walk into the interrogation room, throw cuffs on the suspect and highlight the lie and its discovery.  Up the ante.  Tell that defendant that he has implicated himself, that unless he can explain why he lied, or offer more information, or maybe the name of a more complicit codefendant, he’s going to Central Booking as soon as the jail van pulls up downstairs.  At that moment, detectives have opened a window and the leverage, if it keeps a defendant talking and telling more lies, makes the case ever stronger.  Mr. Bernstein’s new policy ends this time-tested dynamic.  Now, instead of crawling through the open window and making a case, they go not to the handcuffs, but to the phone, whereupon they call a duty prosecutor who has been told not to charge any case that isn’t yet sufficient for a jury conviction.  The window stays closed.

Worse still is a second strategic truth that any veteran Baltimore knows:  With more than half of the city’s homicides related to the drug trade and the corner culture that surrounds that trade, a second key window for strengthening a murder prosecution comes only after a defendant is charged.  Why is this so?

Because amid the violence of the drug trade, with the city unable to assure the security of state’s witnesses, there are many city residents who will not talk openly and honestly, or offer testimony against a repeat violent offender if that offender remains on the street.  A second window opens for a skilled detective after sufficient probable cause has been developed to remove a violent suspect from his neighborhood, after the threat to witnesses has been neutralized or at least reduced.  Once a suspect is in pre-trial detention, a detective seeking additional witnesses to a murder can return to the neighborhood with instant credibility, and those city residents asked to risk open testimony against such an offender can know that the man will not be up on the corner at the end of the day, free and clear and capable of retribution.  Mr. Bernstein’s new methodology slams that window shut as well.

“We’re working without about thirty percent of our arsenal right now,” offers one unit veteran.

Are there corresponding reasons not to charge a borderline case?  Of course.  Some cases are truly marginal and they stand little chance of surviving on existing evidence, and in the past, as I noted previously, the Baltimore homicide unit was guilty of charging some certain losers to no purpose other than the improvement of the unit clearance rate.

The solution is obvious and requires a recalibration of our local clearance and conviction rates so that the incentive to charge weak cases is minimized, just as Mr. Bernstein’s political incentives to prosecute only winners is reduced.  This is easily accomplished.  A simple, practical solution was detailed in the previous post here on this issue.

But currently, the system has been impaired by the new state’s attorney’s overreach and the fact that he has halved the deterrent against murder in Baltimore is certain and true.  He may, at some future moment, elect to cut his losses and charge more cases.  And he may claim that these are better cases for the delay.  If such is the case, then truth will certainly out when we take the measure of how many murders, overall, resulted in arrest and conviction — and when we compare that number to what was obtained by Mr. Bernstein’s predecessor.   Time will tell, but given that under the new policy police investigators have less weaponry and opportunity to gather evidence through some  key stages of a murder investigation, there is real reason to doubt.

As to Mr. Bernstein’s reputation for truth-telling, for accountability, for standing as a public official who readily takes responsibility for his actions and the outcomes of those actions?  If we chart his response to the original criticism in this matter, and we look in retrospect on the legitimacy and substance of his sloganeering in the last election, the verdict, sadly, becomes more certain with his every maneuver and revision.

 

 

9 replies
  1. Nick says:

    In response to Dan’s comment, the responsibility for determining cause and manner of death cases in Baltimore is with the Office of the Chief Medical Examiner. They are very well respected (in fact, some of their doctors were interviewed as part of the Frontline documentary you spoke of). So while the issue of unqualified coroners is a serious issue in many parts of the country, that is not really a concern in Maryland.

    Reply
  2. Cham Green says:

    In the first two weeks of September Detroit recorded 32 homicides, up 6% over 2011. In the first two weeks of September Baltimore recorded 10 homicides up 6% over last year. Here is the big difference: Detroit has closed 12 of the 32 homicides and Baltimore has closed NONE of its first 10 September homicides. I might add that Detroit has a per capita police department of 33 officers per thousand residents, where Baltimore has 47, and those Detroit officers just took a 10% decrease in pay to help balance the budget. The bottom line is that the Baltimore cops and the state’s attorney aren’t doing their jobs, they don’t make any effort, all they do is collect their paychecks and dream about their lucrative pensions. Baltimore is more unsafe under Bernstein, the homicide rate is going up and the number of homicides arrests are plummeting.

    Reply
  3. KPRyan says:

    But… but…

    I can’t really be expected to join the DA’s office as an assistant DA and then prosecute some cases I might lose! As any 24 year-old prosecutor knows (and his superiors know even better) it is all about batting average! EVERY youngster working for the People of Maryland (and every other state in this union) knows one must get convictions at every turn in order to successfully transition into private practice or sit on the bench.

    When those idiots with badges flip us cases that aren’t bulletproof and fireproof, we actually have to do some blue-collar work if we wish to achieve our Herculean batting averages. That’s bullshit! Open and shut. Open and shut. Open and shut. Got it?

    Asshole cops….

    Reply
  4. Michael A. Wood Jr. says:

    Being accoustomed to the “journalism” of the Baltimore Sun, I applaude your work here, Mr. Simon. Things like this are nothing new in Baltimore and other major cities. Policing has become entirely political. Only civil service ranks in the the BPD are officer, sergeant, and lieutenant. The lieutenant is the shift commander. Everyone else above that Deputy Major (XO) Major (CO), Lt.Col, Col, Deputy Commissioner, Commissioner, are all polictical appointment. In theory, and pretty much in practice, understand that no one, NO ONE, above the supervisor on the street has your interest in mind, everyone else is in the political game of advancing and preserving their own political career. When the few do something that resembles honorable police work, they are generally shown the door, busted down to supervisor on the street (since obviously that is how they are behaving) or hidden away in some reclusive position.

    On top of it, a significant portion of the street supervisors are merely jockeying for their own political appointment to one of the poltically appointed ranks. Really, only the sergeant and officer can be trusted to be generally acting in the best interest of the citizens of Baltimore. The whole system is a mess and was changed to be this way on purpose. There used to be civil service captains who led districts but that was changed to political ranks.

    The promotions are based on a variety of whatever reasons that the Commissioner chooses. There is a simple way to show that they are not based on merit. No one wants to hear, but sorry I bring truth, approximately 50% of the officers/detectives in the BPD (the people they chose to hire) are white and about 50% are black. Then comes civil service promotion. Between 70%-80% of the sergeants and lieutenants are white (where they cannot control the promotions) and 20%-30% are black. Then when we get back to where it can be controlled in the politically appointed command staff ranks, we are magically back to 50-50. Isn’t that amazing?

    Reply
  5. Dan says:

    I just happened to read this post after watching Frontline’s episode on death investigations (I think it was titled “Post Mortem”) – which profiled the (rather appalling) level of funding and competence of coroners and forensic pathologists in a number of different cities, although I do not think Baltimore was one of them.

    If Mr. Simon is correct that competent homicide investigation serves as a “deterrent against murder”(a belief I share) it might be interesting to examine the politics, practices, and “stat-juking” associated with the very people we depend upon to tell us that a death is homicidal, natural, accidental, or “undetermined”.

    Reply
  6. Dana King says:

    Of all the things i learned from The Wire–and i learned a lot, and was inspired to read and learn even more–what surprised and stuck with me the most is the amount of obstruction and bullshit cops deal with internally, from the people whose jobs should be to facilitate the work of those on the street. Amazing and demoralizing.

    Reply
  7. Kevin Stevens says:

    Now that is journalism. Facts followed by conclusions.

    Reply

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