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March 27, 2006 - Baltimore Sun (MD)

Drug Case Falls Apart

Complaints About Officers Allowed

By Julie Bykowicz

Return to Drug War News: Don't Miss Archive

The trial of three East Baltimore men with long criminal records accused of being drug dealers unraveled before it began when a Circuit Court judge decided that jurors could hear that dozens of complaints had been filed against two police officers involved in the case.

Saying the ruling "gutted" her case by raising undue suspicion on the police, the prosecutor dropped charges last week against Gary Payne, 43; Harold Richardson, 36; and Kenneth Richard, 37. Each had faced six drug distribution and possession charges that could have put them in prison for up to 10 years without parole.

Baltimore Circuit Judge John N. Prevas, after two days of hearings last week, ruled that defense attorneys could tell jurors that investigating officers Daniel Hersl and Frank Nellis - each with at least seven years' experience - had 46 internal affairs complaints filed between them. Only one complaint for each had been sustained by the department, but the judge said the sheer number of accusations merited judicial notice.

"Misconduct, sometimes when it's frequent enough, it indicates a lack of desire to tell the truth," Prevas said at one of the hearings, after reviewing Hersl's internal affairs file.

Karen Hornig, a city solicitor who is chief legal counsel for the Police Department, said that even though Prevas' ruling was probably "unsettling" to the prosecutor, she was surprised the case was dropped.

"Unsubstantiated complaints should not shut down the prosecution of bad guys," Hornig said. "These officers could have explained to the jury the reality of being narcotics officers and that they receive a lot of spurious complaints from drug dealers."

Hornig said that "these officers very much wanted to move ahead with the case."

Prevas' ruling comes as the Baltimore police deal with several cases of misconduct. A city grand jury report released this month says that residents have come to distrust the Police Department because officers have made thousands of arrests that don't result in criminal charges.

Two detectives on trial in federal court are accused of robbing drug addicts and pressuring dealers to split their profits with them. Three Southwestern District officers are scheduled for trial in May on rape charges, and their squad also is accused in police documents of planting drugs on people and stealing from suspects they have arrested.

Richardson's defense attorney, Bradley L. MacFee, said he was so disturbed by the volume of complaints against Hersl and Nellis that he sent a letter to police Commissioner Leonard D. Hamm, asking him to audit his officers' personnel files.

"Recently publicized misconduct within the Department has eroded public confidence and undermined your mission," MacFee wrote, adding that an audit of personnel files would "fortify the public trust."

Matt Jablow, the Police Department's chief spokesman, said that agency lawyers had read the letter but that he was unsure whether Hamm had. He said in a statement that excessive-force complaints decreased 7 percent and discourtesy complaints decreased 14 percent last year, compared with 2004.

The sustained complaint against Hersl involved a situation in which, while off duty at Looney's Pub, he had an argument with a woman, poured a beer on her head and threw a bottle that struck her face. Nellis' sustained complaint was for an incident in which he and two other plainclothes officers punched a man in the face, after which one of the officers hit him in the head with a departmental radio.

Prevas ruled that defense attorneys could cross-examine the officers about those complaints - in addition to mentioning how many others complaints had been filed - during the trial for Payne, Richardson and Richard.

Assistant State's Attorney Mia Beth Segall said she had no other choice but drop the case because the ruling would have put the officers in the uncomfortable position of essentially being on trial themselves.

The city solicitor's office could have appealed Prevas' ruling but chose not to. Hornig said the office views the ruling as "an anomaly" that didn't warrant appeal. One danger of appealing was that if appellate judges agreed with Prevas, precedent would have been set allowing defense attorneys to tell jurors about other police officers' unproven internal affairs complaints.

Lynn McLain, a University of Baltimore law professor and a witness and evidence expert, said judges have wide discretion in deciding what can be presented to jurors.

"It's not at all an exact science," she said. "Many judges bend over backward to let in evidence helpful to the defense to avoid the chance of being reversed on appeal."

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