JOSHUA TRIPP ELLSWORTH v. BALTIMORE POLICE DEPARTMENT
Court of Appeals, Battaglia, Filed April 24, 2014,
LEOBR- “Exculpatory” evidence required to be produced prior to trial board hearing does NOT include all “Brady” material, but only “information related to the officer and the charges specified”
A 4-3 decision authored by J. Battaglia goes through the history of the Law Enforcement Officer’s Bill of Rights (LEOBR) with regard to disclosure of exculpatory material to the officer charged, finding in the end that the LEOBR does not require disclosure of “exculpatory” material to the same extent as a criminal charge.
In this case, Det. Ellsworth (working as a homicide detective) was charged with insubordination and other charges related to a dispute with a patrol sergeant over who was in charge of an active crime-scene related to a possible abduction.
The Baltimore Police Department offered two eye-witnesses against Det. Ellsworth: Sgt. Brickus (the sergeant involved) and Daniel Redd (now infamous police-officer turned drug-dealer). Though aware of the ongoing investigation against Redd, the BPD did not turn over any evidence hinting at Redd’s character and used his testimony to “convict” Det. Ellsworth in a trial-board hearing.
During Redd’s testimony, and despite having information to the contrary, the BPD did nothing when Redd stated that he did not have an attorney regarding an “ongoing federal criminal investigation” and that he was not “the subject, in fact the target, of an ongoing federal criminal investigation.” The BPD also did nothing when Redd responded “No” to the question “since you were 18 years of age, have you ever distributed a controlled dangerous substance?”
In the words of J. Harrell’s dissent (joined by CJ Barbera and J. Adkins)
“I find it reprehensible that a police department may blind a trial board to the obvious credibility suspicions that would have arisen surely from the department producing a material witness (another police officer) that it has reason to suspect may be a drug dealer.”
Nonetheless, the Court noted that there was no conviction to disclose and found that Redd’s activities as a police officer working for a drug-distribution network was “unrelated to the [charge against the] officer.”
The majority stated
“What is significant is that our Rule does not require disclosure by the State of alleged investigations or “bad acts” of witnesses, not having resulted in a conviction and not related to a witness’s character for untruthfulness.”
Of course, distribution of CDS is an impeachable crime related to truthfulness (to say nothing of doing so as a police officer)… so I’m not sure where the Court was going there.
Moreover, the Court changes tact mid-way through their argument and shifts from a discussion of what is required to be disclosed as “exculpatory” to what may be used at trial to impeach a witness.
In the end, however, the term is given a very restrictive interpretation — limited to
information related to the officer and the charges specified rather than the disclosure of information regarding an alleged extraneous investigation of a witness, which did not relate to the
officer and his or her specific charges involved in the hearing.