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Justice Undone

City State’s Attorney Patricia Jessamy Asserts At Hearing That Police Arrest Tactics Are Unconstitutional

Jefferson Jackson Steele
RIGHTS AND WRONGS: At a Jan. 4 public hearing, Angry citizens protested the alleged use of illegal arrests by the Baltimore Police Department.

By Edward Ericson Jr. | Posted 1/11/2006

The legislative hearing was louder than most, with a crowd heckling some speakers and shouting “shame” at the legislators. Mayor Martin O’Malley said his piece and ducked out early, enraging hundreds of constituents. Police Commissioner Leonard Hamm forgot the Fifth Amendment.

But the most surprising thing about the legislative hearing held in Baltimore last Wednesday, Jan. 4, to examine police tactics in the city, was the testimony of State’s Attorney Patricia Jessamy, the city’s top criminal prosecutor, who said that city police increasingly arrest people for crimes without “probable cause.”

“I took an oath to see that justice be done,” Jessamy told the state legislators from Baltimore before a crowd of more than 200 at the War Memorial downtown. “In doing that we’re not going to tramp on the Constitution.”

“For me, that was the most revealing moment,” says Del. Salima Siler Marriott (D-40th), who convened the hearing and co-chairs Baltimore City’s delegation in Annapolis. “Because I had talked to her. She never [before] said anything where she suspected . . . that these arrests were unconstitutional, and she should have said what she said a long time ago. It’s good she said it, but she should have said it before.”

Jessamy’s answers to the legislators’ questions went beyond her prepared testimony, and seemed to confirm for the first time what citizens and activists have been saying for months: that Baltimore police officers routinely and consistently arrest innocent people without cause, sending thousands to jail before prosecutors release them without charge. These innocent citizens lose work and bear the stigma of an arrest record, which hampers their ability to get and keep jobs and housing.

Both O’Malley and Hamm stated categorically that city police do not make “illegal arrests,” and O’Malley suggested that the legislature take away Jessamy’s power to determine which arrests are proper, returning it to “court commissioners” who are more deferential to the police. Although several speakers said they supported the police’s tactics, many others testified throughout the evening to having been harassed, arrested, and beaten by Baltimore police without warning or cause. Carlos Ricks claimed to be an innocent victim on New Year’s Eve, saying he had told police that they were wasting their time in stopping his cousin, then was thrown to the ground and punched by those same cops. His left eye was still swollen and ringed by a fist-sized bruise.

Jessamy provided a statistical breakdown of the types of cases she received but did not charge in August 2005, during which nearly 9,000 people were brought to Central Booking. More than 1,000 of those cases were “abated by arrest,” meaning that the offense was stopped by the arrest itself, requiring no judicial action. But 1,882 of the cases fit under the heading “could not prove,” including 408 drug cases, 248 arrests for trespassing, and 845 loitering cases.

Jessamy referred to five individuals she said police had arrested for leaning on a car. The police “said they had warned them the day before” not to loiter there, Jessamy told the legislators. “This arrest should not have taken place.”

But the story behind those arrests is more complicated than Jessamy’s description to the legislators. Jessamy provided the five statements of probable cause, all heavily redacted so that neither the police officers’ nor the defendants’ names were visible. The police narrative describes working drug dealers. Boiled down, the police report reads as follows:

On Nov. 30, 2005, at 2:20 p.m. detectives in the Northwest District answered a complaint of drug dealing by several black males on the 5500 block of Lynview Avenue in the Leahigh neighborhood. The detectives found the five, aged 18 to 25, leaning on a car. The detectives had previously warned these young men about loitering on the block, so they arrested all five for loitering.

According to the written police statements of probable cause, after arresting them for loitering, the detectives patted the men down and found a set of car keys in a jacket pocket of one of the defendants. One key belonged to an Acura and the other to an Infiniti. After reading the defendants their rights, the arresting officer asked where the vehicles were, and the man with the keys said they weren’t on that block.

But the cops saw a white four-door Acura and a gold Infiniti on the block. The man who had the keys denied that the keys fit those cars, but the police called for a drug-sniffing dog to check the cars. The dog smelled drugs in both of them.

The detectives used the keys from the defendant to open both cars, and found a lot of baggies and about a pound of “suspected marijuana.” They also took $793 in cash from the men.

One of the defendants, according the police report, “had personal papers and a prescription box with his name on it in the 4dr Acura. A check of the 4dr Acura revealed that the vehicle was stolen.” So the men were taken to Central Booking and “charged accordingly,” according to the police report.

Asked why she illustrated the problem with this case rather than a case in which the police arrested wholly innocent people, Jessamy’s spokeswoman, Margaret Burns, says the case “happened to be on the very top of the stack that came over from Central Booking.”

The city State’s Attorney’s Office had asked for a series of cases, to comply with a public records request from a member of the local media. The case of the five men leaning on the car fit the criteria, Burns says, because there was no probable cause for the arrest and multiple suspects were arrested and set free. Burns says Jessamy wanted a case with multiple defendants to counter the Baltimore Police Department’s claim that her “numbers were wrong.” The police department counts the five arrests as a single “incident,” Burns says, not five separate cases.

“This one is particularly troubling to her because of the circumstances,” Burns says.

David Rocah, a staff lawyer for the American Civil Liberties Union of Maryland who also testified at the hearing, says it makes no difference that in this case the “citizens” were drug dealers.

“They arrested them with no probable cause whatsoever,” Rocah says. “As the state’s attorney accurately pointed out, leaning against a car is not a crime. You can’t pick people up for leaning against a car just because you think they might be drug dealers, even if you’re right.”

Rocah and many others testified that arrests like that do little to solve the city’s drug problem, because drug dealers are not terribly inconvenienced by a night in jail. But when police mistakenly arrest noncriminals the effect can be devastating.

“Locking up a bad guy for 24 hours on an illegal arrest doesn’t make the city safer,” Rocah says. “What makes the city safer is making a good arrest, prosecuting them through the system, and putting them in jail.”

Rocah also stresses that O’Malley’s suggestion to eliminate review of probable cause by the State’s Attorney’s Office in favor of review by the court commissioners would be a step backward, taking the authority away from Jessamy—who has proven sensitive to constitutional issues—and giving it to a likely “rubber stamp” for the police. He calls that “a crucial point that has been completely ignored in the reports of the hearing.”

Asked two days after the hearing about the facts underlying Jessamy’s five loiterers, Marriott indicated that she was not familiar with the case details. But she makes it clear that Jessamy’s testimony shifted her thinking about what is required to reform the justice system in Baltimore.

Marriott says she has been discussing the Baltimore police situation with Jessamy, Hamm, and others for months in support of getting the Abell Foundation to conduct an in-depth study of police and prosecutorial practices. She says she hopes that study will be done, but that Jessamy’s concern with constitutional issues is a new wrinkle in the ongoing debate.

“Bottom line is this,” Marriott says. “She provided to me a summary report to demonstrate her reason that she did not prosecute cases over a period of time. At no point [before the Jan. 4 hearing] was the question of constitutionality given as a reason for not prosecuting. It was always given as a matter of charging documents.”

In his testimony a few minutes before Jessamy spoke, Hamm acknowledged that the police department has a problem, but he insisted that it was a matter of insufficient training, not a policy of making more arrests at all costs. Hamm told the legislators that the department was undergoing intensive training in the Fourth and Fifth amendments of the Constitution, using attorneys from the Attorney General and State’s Attorney’s offices, and others.

“We’re going to reorder our priorities,” he said.

Del. Nathaniel Oaks, D-41st District, then asked Hamm to define the Fifth Amendment. Hamm hesitated a moment before he answered.

“Basically, it’s stop and frisk,” he said. “It’s search and seizure.” He went on like this for several seconds, while some in the crowd shouted that he was wrong. Several of the legislators looked uncomfortable. City solicitor Ralph Tyler, who was standing next to Hamm, appeared to prompt him just as Oaks spoke up.

“My learned colleague informs me that that’s the Fourth Amendment,” Oaks said.

Hamm responded using the words “self-incrimination,” which the Fifth Amendment is supposed to provide protection against.

After the hearing, several officials who witnessed Hamm’s flub did not want to be quoted talking about it.

“He knows the Fifth Amendment, don’t be ridiculous,” snapped Baltimore Police Department spokesman Matt Jablow, before calling back later to try to take that statement off the record.

Minutes after Hamm’s testimony, Jessamy told the state legislators that despite the program to train police in avoiding violations of the Fourth and Fifth amendments, the number of cases her office has had to decline to prosecute has increased. “We have given the declines to the police and built a training program around them,” Jessamy said. “Unfortunately, the number of declines are not decreasing because of this.”

Jessamy said that when she started the training in 2000 the rate of cases declined was about 15 percent. “Sometimes now it’s up to 33, 34 percent,” she said. “There is no law against citizens standing in the street leaning on a car.”

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