Lawmakers mull giving Maryland AG power to prosecute officers in police-related deaths

Published on: November 30, 2022 5:49 PM EST|Updated on: December 01, 2022 8:02 AM EST

On Tuesday afternoon, Baltimore Police Commissioner Harrison released the body-worn footage from this past Sunday’s fatal shooting of Tyree Moorehead. He and Deputy Commissioner Brian Nadeau walked through the footage with members of the press and answered a few questions Tuesday afternoon.
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A year after state lawmakers gave the Maryland attorney general greater investigatory authority in police-involved deaths, local prosecutors have so far declined to charge any officers, prompting state lawmakers to consider giving that power to the state’s top prosecutor.

The Maryland Office of the Attorney General Independent Investigations Division on Tuesday released its first annual report on 23 police-involved deaths in the state, spanning from its inception on Oct. 1, 2021, to Sept. 30. The report illustrated that local prosecutors have so far declined to press charges against police officers in all of those cases. Since the report, the division has begun investigating three additional cases.

Those who died at the hands of police were disproportionately Black men, who make up 13.8% of Maryland’s population but accounted for 56% of the deaths — 13 of the 23 decedents included in the report. Two of the decedents were female, one Black woman and one Hispanic woman.

State Sen. William C. Smith Jr., a Montgomery County Democrat, said he’s already drafted legislation that would hand over prosecutorial power to the attorney general’s office for police-related deaths. Smith anticipates discussing the issue with incoming Attorney General Anthony Brown to ensure he is on board with that proposal before introducing it in the upcoming legislative session.

Although he said it was always his intent to give the division prosecutorial power, Smith highlighted a June decision by the Harford County State’s Attorney’s Office to explain his reasoning. In that case, prosecutors declined to file charges in an April fatal police shooting before the attorney general’s office had completed its review. It followed the Harford County Sheriff’s Office saying months earlier that it would “not follow” the division’s investigative protocols, according to the report.

“The gall to do that was fascinating,” Smith said. “That tells you that we really should, to close the circle, we really should have prosecutorial authority under the purview of the AG’s office.”

Smith lauded outgoing Attorney General Brian Frosh’s handling of the Independent Investigations Division’s inaugural year. For instance, he said, the annual report was not mandated by the 2021 police reform legislation that created the unit. But Frosh’s report has provided crucial facts and context for lawmakers to consider updating the procedures, Smith said.

Of the 23 incidents reviewed by the investigations unit, 13 of them were fatal shootings. In seven of those shootings, the person shot by police brandished a firearm, according to the report. The rest included seven police pursuits that ended in fatal vehicle crashes, and three deaths that occurred in police custody.

The Baltimore Police Department had four incidents included in the report, and Baltimore County Police had three.

The investigations division has so far turned over case reports to local prosecutors in 13 of the 23 cases it included in its year-end review. The average time from the date of a death to the report being handed over was five-and-a-half months, which the division attributed to lower staffing numbers that would be ramped up over time.

Heather Warnken, director of the University of Baltimore’s Center for Criminal Justice Reform, said the attorney general’s office’s capacity to conduct meaningful independent investigations of police-related deaths is crucially important, but the intent of the lawmakers to have the body to hold officers accountable hasn’t yet been realized under the current model.

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“If the goal is to get a more meaningful system of accountability and independent decision making, we’re not there yet,” Warnken said.

Warnken credited Smith for his proposal to give the office prosecutorial powers. Under its current structure, Warnken said, the division is hamstrung by the fact that it can’t make charging recommendations to prosecutors, let alone prosecute the cases itself.

“At least [with charging recommendations] it would be clear what an independent body would do based on their investigative authority with the information they found,” Warnken said. “Then the onus would be on the local prosecutor to have to justify their decision.”

State Sen. Jill Carter — a Baltimore Democrat who has long advocated for police reforms — similarly praised Frosh’s first year overseeing the division and his decision to create the report. As far as Smith’s proposal, Carter said she is open to the concept of giving prosecutorial power to the attorney general, but would like to work out the details.

In the past, prosecutors from both political parties have opposed the idea, arguing their offices should have the discretion to charge the cases, Carter said.

Those tensions and the complexity of the politics involved made it a thornier decision for the senator.

“I don’t have any real skepticism other than that this idea of finally holding officers accountable for their bad acts is a relatively new culture shift,” Carter said. “So I would proceed with caution, because all of this depends on some extent who the players are.”

Del. Luke Clippinger, a Democrat who represents part of Baltimore City, said that he had not yet had a chance to read the attorney general’s report, but that he is open to discussing the concept of giving the office prosecutorial powers.

The police reform legislation of 2021 created several new processes that are still being hammered out, said Clippinger, who also works as an assistant state’s attorney but was speaking about his own personal beliefs as a lawmaker. This could be one area that warrants correction, he added.

“I’m certainly open to considering that going forward,” Clippinger said. “I want these new agencies, these new processes, to get their legs under them, and then we can go and evaluate: ‘Okay, what’s working and what’s not?’ This is far from the last word on police reform.”