DRUG CASE FALLS APART

Complaints About Officers Allowed

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."