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IN THE CIRCUIT COURT FOR BALTIMORE CITY, MARYLAND
JOSHUA TRIPP ELLSWORTH,
Petitioner CIVIL ACTION
v. No.: 24-C-11-005397/AA t...1
POLICE COMMISSIONER FREDERICK H. BEALEFELD, III,
Respondent --o
* * * * *Th 19
PETITIONER'S MEMORANDUM OF LAW IN SUPPORT OF PETITION FOR JUDICIAL REVIEW
Introduction & History of the Case
Joshua Tripp Ellsworth, the Petitioner, began his employment with the Baltimore Police
Department on or about July 17, 2003. Following a probationary period, Ellsworth was a non-
probationary employee of the Baltimore Police Department. At all times pertinent to this appeal,
Ellsworth was a detective assigned to the Criminal Investigation Bureau, Homicide Section. At
all times pertinent to this appeal, the appointed Police Commissioner for the Baltimore Police
Department was Frederick H. Bealefeld, III.
Baltimore City Police Officers are subject to the protection of the Maryland Law
Enforcement Officers' Bill of Rights. Md. Ann. Code Public Safety § 3-101 et seq. (hereinafter
LEOBOR).
On August 7, 2009, Major Terrance McLamey assigned Detective Joshua Ellsworth to
investigate a kidnapping that had just occurred. Much of what followed thereafter represents a
failure of policy within the Baltimore Police Department. Essentially — as will be shown —
Ellsworth became a pawn between competing supervisors (and egos) within the Baltimore Police
1
Department. At all times, Detective Ellsworth perceived his legal duty, official mission, and
professional responsibility to be that of apprehending the kidnapper and saving the life of the
kidnap victim. For reasons that ought to embarrass the Police Commissioner, others in the
Baltimore Police Department became embroiled in petty administrative disputes which
culminated in the detention (and likely arrest) of Detective Ellsworth.
Whatever else is true, on August 7, 2009, while investigating a kidnapping, Ellsworth's
police powers were suspended sua sponte by Baltimore Police Sergeant Jonathan Brickus.
Within a few minutes, Lt. Dameon Carter and/or Police Major Terrance McLarney restored
Ellsworth's police powers. Sergeant Brickus declined to return Ellsworth's gun, and so for a
short time Ellsworth continued his investigation and attempted apprehension of a kidnapper
without a firearm.
At the conclusion of the shift, Ellsworth was asked to refrain from complaining about the
false arrest made of him by Sergeant Brickus, and requested to be a team player. Ellsworth
acquiesced. On his part, Sergeant Brickus filed a complaint against Detective Ellsworth with the
Internal Investigation Division of the Baltimore Police Department.
On August 17, 2009, Ellsworth was served with a "Notification to Accused of
Complaint." The complaint — IID Disciplinary Control Number 09-1458 — alleged that on
August 7, 2009, Ellsworth failed to obey an order given to him by a superior, Sergeant Jonathan
Brickus.
On September 23, 2009, Ellsworth submitted to an interrogation pursuant to the
LEOBOR. Attorney Clarke F. Ahlers (counsel on this brief) represented Ellsworth during the
interrogation.
On June 2, 2010, Nathan A. Warfield, Director of the Internal Investigation Division,
2
notified Ellsworth that the IID investigation concluded that the complaint was sustained)
Ellsworth was served with seven violations of four (administrative) Rules and Regulations for
the government of the Police Department of Baltimore City. The rules involve: (1) conduct
unbecoming an officer; (2) willful disobedience of lawful command or order; (3) unethical
conduct; and (4) insubordination / disrespect to superior officer.
As a practical matter, only two of the administrative charges are germane to the issues to
be decided by this Honorable Court:
CHARGE 1
Violation of General Order C-2, Rule 1, Section Conduct
Any breach of the peace, neglect of duty, misconduct or any conduct on the part of any member of the department, either within or without the City of Baltimore, which tends to undermine the good order, efficiency or discipline of the department, or which reflects discredit upon the department or any member thereof, or which is prejudicial to the efficiency and discipline of the department, even though these offenses may not be specifically enumerated or laid down, shall be considered conduct unbecoming a member of the Baltimore Police Department, and subject to disciplinary action by the Police Commissioner.
Specification 3:
For that, on or about August 7, 2009, Detective Joshua Ellsworth reflected discredit upon himself and the Department, when, while on the scene of a possible domestic abduction, Detective Ellsworth entered into a verbal confrontation with Sergeant Jonathan Brickus, a permanent ranking supervisor, while in plain view of numerous law enforcement members and the general public, thereby, conducting himself in a manner unbecoming a member of the Baltimore Police Department.
CHARGE 4:
Violation of General Order C-2, Rule 1, Section 13
1 It is important to the complete understanding of this case that the name Nathan Warfield not be overlooked. As will be shown, Major Warfield was relieved of his command because of his association with a witness against Ellsworth in this case.
3
No member of the department at any time shall be insubordinate or disrespectful to a superior.
Specification:
For that, on or about August 7, 2009, Detective Joshua Ellsworth, a detective within the Homicide Section behaved in an insubordinate and/or disrespectful manner when he entered into a verbal confrontation with Sergeant Jonathan Brickus a permanent ranking member of the Northwestern District, while at the scene of a possible domestic abduction at the dwelling of 2727 W. Garrison Avenue, in plain view of numerous law enforcement members and the general public.
Following the presentation of charges, Ellsworth declined the Charging Committee's
recommended punishment of termination and elected a Trial Board pursuant to the LEOBOR.
The Respondent, Police Commissioner Frederick H. Bealefeld, III, appointed the Trial Board.
The three members of the Trial Board were Deputy Major Marc Partee, Lieutenant Jon Foster,
and Police Officer Meng-Ching Liu, all of the Baltimore Police Department. Ellsworth did not
challenge the appointment of any of the board members. Clarke F. Ahlers represented Ellsworth.
Mr. Paulos Iyob represented the Baltimore Police Department.
On June 9, 2010, defense counsel moved for discovery. Discovery was mailed to defense
counsel on or about August 23, 2010.
On or about March 29, 2011, Detective Ellsworth was suspended because of the
administrative charges. (Ironically, he was lead investigator on a number of murder cases from
the time of the original incident to his suspension on March 29, 2011.) On March 30, 2011,
Ellsworth's powers were restored. The Petitioner can offer nothing about why this exceptionally
delayed suspension occurred, except to say that dysfunction is typical within the arcane
bureaucracy of the Baltimore Police Department.
A three-day Trial Board commenced on May 17, 2011 at the Baltimore City Police
Department Headquarters Building. Petitioner's counsel is advised that a copy of the transcript
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has been filed with the Circuit Court for Baltimore City. 2
On Thursday, May 19, 2011, the Board orally gave its decision, finding in pertinent part
that the accused member was guilty of Charge 1, Specification 3 (conduct unbecoming) and
Charge 4 (disrespect—but not insubordination).
The Trial Board recommended a punishment for both charges of a "Severe Letter of
Reprimand, Seven Days Loss of Leave, (and a) Transfer from Homicide Section if the
Commanding Officer of the Homicide Section wishes to do so." 3
The Police Commissioner imposed the punishment by Final Order of the Police
Commissioner issued as Personnel Order 538-11 dated July 19, 2011. It was mailed to
Petitioner's counsel in an envelope dated July 28, 2011.
Ellsworth noted an appeal of this decision to the Circuit Court for Baltimore City on
August 18, 2011.
Scope of Review
In an appeal from the final decision of an administrative agency, the Judiciary's role is
"limited to determining if there is substantial evidence in the record as a whole to support the
agency's findings and conclusions, and to determine if the administrative decision is premised
upon an erroneous conclusion of law." United Parcel Service, Inv. v. People's Counsel, 336 Md.
569, 577 (1994).
2 The transcript is captioned Trial Board Hearing of Detective Joshua Ellsworth, III) No. 09-1459. (Petitioner's counsel has no idea why the paperwork served upon Detective Ellsworth is captioned No.: 09-1458 and the hearing board is captioned 09-1459, but notes that the information clearly refers to the same dispute. In any event, the transcript pagination begins anew each day. Accordingly, the transcript is cited herein as "Tr. Date, p. ."
3 There are minor discrepancies in the various forms concerning the punishment. The Commanding Officer of the Homicide Section, Major Terrance McLamey, was a defense witness and had no interest in transferring Ellsworth from the Homicide Section. McLarney's integrity was rewarded with demotion and transfer by Police Commissioner Frederick H. Bealefeld, III. McLarney — a decorated police veteran previously shot in the line of duty and the longtime commander of the Homicide Section -- is now a Lieutenant in Patrol working midnight shift.
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When a reviewing court applies the substantial evidence test, it decides, "whether a
reasoning mind reasonably could have reached the factual conclusion the agency reached." Bd.
Of Physician Quality Assurance v. Banks, 354 Md. 59, 68 (1999) (internal quotations omitted).
The agency's decision must be reviewed in the light most favorable to it; because it is the
agency's province to resolve conflicting evidence and draw inferences from that evidence, its
decision carries a presumption of correctness and validity. Id.
The reviewing court is also charged to reverse or modify the decision of the agency or
remand the matter for further proceedings, or reverse or modify the decision if any substantial
right of the petitioner has been prejudiced because a fmding, conclusion, or decision i) is
unconstitutional; ii) exceeds the statutory authority or jurisdiction of the final decision maker; iii)
results from an unlawful procedure; iv) is affected by any other error of law; v) is unsupported
by competent, material, and substantial evidence in light of the entire record as submitted; or vi)
is arbitrary or capricious. Maryland State Dep't of Educ. v. Shoop, 119 Md. App. 181 (1998).
See also Maryland Code § 10-222 of the State Government Article.
Questions Presented for Review
I. Did the Baltimore Police Department deny the Petitioner exculpatory evidence in violation of the Law Enforcement Officers' Bill of Rights, codified at Md. Ann. Code Public Safety § 3-104(n)(1).
II. Was the Petitioner denied due process of law when the Petitioner was effectively barred from effective cross-examination of critical fact witnesses by the Department's denial of exculpatory evidence?
III. Was the Trial Board's guilty verdict in Count 1, Specification III — conduct unbecoming an officer — an error of law, unsupported by competent, material, and substantial evidence, and otherwise arbitrary and capricious?
IV. Was the Trial Board's guilty verdict in Count 4 — disrespect to superior officer --supported by competent, material, and substantial evidence, and otherwise not arbitrary and capricious?
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Statement of Facts and Argument
The overarching facts and arguments that support Ellsworth's appeal are these. A
kidnapping was reported to the Baltimore Police Department. Ellsworth, a homicide detective,
was assigned to investigate the crime.
The case began at the scene of the kidnapping. It moved to W. Garrison Avenue when a
suspect was developed. (The conduct at issue occurred at or near W. Garrison Avenue; some
witnesses refer to this as the "second scene.")
As a matter of policy and procedure, Ellsworth had command of the crime scene and
follow-up investigation scenes. Ellsworth was acting on the order of Major McLarney, who
testified that Ellsworth had the assignment, duty, and authority to do exactly what he did.
Sergeant Brickus — the Patrol supervisor -- took umbrage at the idea that a Detective had
authority at a crime scene or follow-up location. Brickus — not having the investigative expertise
of Ellsworth — failed to appreciate that time was of the essence. When Ellsworth acted consistent
with his judgment, training, experience and authority, Brickus reacted immaturely.
Sergeant Brickus arrested Ellsworth for allegedly refusing to obey the lawful order of a
police officer. The "arrest" was interrupted by others, whose judgment was not as impaired as
that of Brickus. Thereafter, Brickus filed a petty grievance against Ellsworth with the Internal
Investigation Division. The complaint was investigated at the direction of Major Nathan
Warfield, Commander of the Internal Investigation Division.
Like everything associated with the Baltimore Police Department, the simple becomes
complex and the patent becomes obtuse. An investigation was launched into the conduct of
Ellsworth relying in large part upon the allegedly neutral observation of (former) Police
Detective Daniel Redd.
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At the same time, Police Detective Daniel Redd was of interest to federal law
enforcement agencies. The FBI contacted Ellsworth prior to his internal affairs interrogation, and
the DEA contacted Ellsworth after his interrogation. As will be seen, investigators and the
Baltimore City Police Commissioner eventually drew a connection between Detective Daniel
Redd and Major Nathan Waffleld.
Given the express interest of federal law enforcement authorities into the witness against
Ellsworth, Petitioner's counsel was particularly interested in exculpatory evidence related to
Daniel Redd. Counsel filed a request under the Maryland Law Enforcement Officers' Bill of
Rights for that exculpatory evidence. First, the Baltimore Police Department provided no
exculpatory evidence about Redd. Then, during the Trial Board, the Department denied that it
knew of any exculpatory or impeachment evidence related to Detective Daniel Redd. This is
simply untrue.
Redd testified against Ellsworth on May 17, 2011. On July 19, 2011 — 63 days after
Detective Redd testified against Ellsworth — the FBI arrested Detective Redd and charged him
with being a major heroin distributor in Baltimore. On August 16, 2011, the Police
Commissioner appeared on the "Marc Steiner (radio) Show" and answered questions from
callers. As reported in the Baltimore Sun, the Police Commissioner stressed that the investigation
against Redd began with Baltimore City Police Detectives and that he — the Police Commissioner
— brought in the FBI. As the Redd corruption story unfolded, the Police Commissioner relieved
Major Warfield of his command of IID when Baltimore Sun reporters published a story that the
two were friends, with Redd posting a picture of Redd and Warfield on his Facebook page.
Obviously, Major Warfield — the charging officer and Commander of IID — failed to disclose that
one of the witnesses against Ellsworth was a corrupt police officer and close personal friend.
8
Presumably, even the Police Commissioner's handpicked Trial Board could not overlook
the bad act of a police officer distributing heroin in uniform from a police station as
impeachment evidence. For this reason, such information was intentionally withheld from
Ellsworth and his counsel.
The Hearing Board accepted Detective Redd's testimony. The Trial Board summarized
Redd's testimony as though he were a legitimate police detective and not a drug dealer with a
badge and made findings of fact congruent with his testimony. Moreover the Hearing Board
rejected the testimony of Major McLarney.
The case was a fix and a sham. The heroin-distribution wing of the Baltimore Police
Department overpowered the legitimate criminal investigation wing of the police department,
convicting Ellsworth and ultimately demoting Major McLarney. The so-called "competent,
material and substantial evidence" set forth in this case came — in substantial part — from a
known heroin distributor (Redd).
The prosecution in this case was aggressive and — in the opinion of Petitioner's lawyer —
unnecessarily obstructionist. More than that though, it was absolutely unethical. The prosecutor
withheld material evidence that impeached the investigation itself, and the allegedly neutral
witness: Detective Daniel Redd.
I. The Baltimore Police Department denied the Petitioner exculpatory evidence in violation of the Law Enforcement Officers' Bill of Rights, codified at Md. Ann. Code Public Safety § 3-104(n)(1).
On July 9, 2010, defense counsel filed a specific request for exculpatory evidence with
the Office of Legal Affairs. (Appended as Exhibit 1). The request defines exculpatory evidence
and makes clear that the duty to provide it is continuing in nature. As is its practice, the Office of
Legal Affairs does not answer discovery; the office simply mails defense counsel a copy of the
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"investigation book." The discovery included no exculpatory evidence concerning Detective
Redd.
If the Baltimore Police Department knew that Detective Redd was engaged in a series of
felony crimes — distributing heroin and conspiracy to violate narcotics law of the United States
and the State of Maryland — the Department was required to disclose this information before
using Redd as a witness against Ellsworth. Brady v. Maryland, 373 U.S. 83 (1963); Giglio v.
United States, 405 U.S. 150 (1972); State v. Giddens, 335 Md. 205 (1994).
No reasonable person could believe that the knowledge of Redd's felonious misconduct
was unknown to the Baltimore Police Department. 4 Redd was arrested shortly after the trial.
Redd's indictment includes bad acts that predate the trial. An affidavit was filed in support of a
search and seizure warrant. The affidavit alleges that on March 31, 2011, Redd, while in full
police uniform, provided heroin to a co-conspirator named Zakaria on the parking lot of the
Northwest District Police Station. Forty-seven days before calling Redd as a witness against
Ellsworth, the Police Department was participating in an investigation which witnessed Redd
distribute heroin on a police department parking lot. Incredible, but true.
Of course, no one told Ellsworth or his lawyers.
A second critical witness was Police Sergeant Jonathan Brickus. Sergeant Brickus was
also charged with misconduct in this case. Tr. 5/18/11, p. 88. Sgt. Brickus worked out a deal with
the prosecutor. Id. Defense counsel sought to learn what "deal" had been struck with the witness.
Tr. 5/18/11, p. 91. The prosecutor's objection was sustained. Id.
A third example of denial of exculpatory evidence is the favorable evidence that would
have been available from Sergeant Jackson. Sgt. Brickus testified during his direct examination
Petitioner's Counsel shall file a motion with the Circuit Court to expand the record to prove Redd's indictment, as well as evidence that the Baltimore City Police Department was well aware of bad acts by Redd that constituted exculpatory evidence that was required to be disclosed by operation of law.
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that following his behavior towards Ellsworth, "Sergeant Jackson ... came to me and spent
probably five minutes telling me how wrong I was, we don't need this in the public eye, you're
wrong, you're wrong, you're wrong." Tr. 5/18/11, p. 36. Defense counsel moved for production
of this exculpatory evidence. Id. The prosecutor misled the Trial Board into a belief that since the
Petitioner had been given Sergeant Jackson's statement, the Petitioner was not entitled to the
evidence from Brickus that another Sergeant on the scene spent five minutes criticizing Brickus
for his misconduct. Tr. 5/18/11, p. 37.
The Trial Board, made up of non-lawyers, sustained Petitioner's counsel's request for
exculpatory evidence as though it was an objection, and struck the exculpatory evidence from the
record. Tr. 5/18/11, p. 38. After some petty procedural wrangling, the Trial Board reasoned that
the prosecutor didn't have this exculpatory evidence to give to the defense. Tr. 5/18/11, 43.
Petitioner's counsel asked the prosecutor to state for the record that the first time the prosecutor
learned of the exculpatory evidence was during the testimony of the witness. Tr. 5/18/11, p. 44.
The prosecutor declined to say when he learned of the exculpatory evidence. Id. The Trial Board
took a break and consulted with its lawyer. Tr. 5/18/11, p. 44. The Trial Board implicitly found
that the Petitioner was denied exculpatory evidence but "find no grounds that this was done ...
on purpose." Id. (This is an example of the "arbitrary and capricious" nature of this case; a Trial
Board found inadvertent denial of exculpatory evidence when a prosecutor refused to disclose
when he learned of the exculpatory evidence.)
II. The Petitioner was denied due process of law when the Petitioner was effectively barred from effective cross-examination of critical fact witnesses by the Department's denial of exculpatory evidence.
Detective Redd was called as a prosecution witness on the first day of the Trial Board. Tr.
5/17/11, p. 151. A critical fact was that Redd testified that Ellsworth said he was not handling the
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incident. Tr. 5/17/11, p. 156. (Obviously, the entire defense falls if Ellsworth was not a homicide
detective investigating a kidnapping.) Redd told the Trial Board that the scene belonged to
Sergeant Brickus in patrol because homicide was not handling the incident. Tr. 5/17/11, p. 157.
Redd described the conversation between Brickus and Ellsworth. Tr. 5/17/11, p. 161. Redd
opined that Ellsworth's conduct was inappropriate and intimated that Ellsworth failed to follow a
lawful order. Tr. 5/17/11, p. 170.
On cross-examination, Petitioner's counsel inquired about the reason that Redd was no
longer a detective. Tr. 5/17/11, p. 170. Thereafter, the prosecutor began a pattern of disrupting
the cross-examination with speaking objections, sometimes speaking for a period of time that is
longer than a transcription page. See for example, Tr. 5/17/11, p. 171. Petitioner's counsel
indicated that he wished to ask the witness about specific felonies and federal crimes that the
witness had committed. Tr. 5/17/11, p. 176. What counsel now knows with metaphysical
certainty is that the Police Department was aware of these crimes and did not share the
information with defense counsel.
Petitioner's counsel moved for production of the prior bad act evidence involving Redd.
Tr. 5/17/11, p. 177. Counsel asked the witness if he had distributed drugs since he was 18 years
of age. Tr. 5/17/11, p. 189. The witness answered "no."Id.
At this time, the prosecutor was duty bound to disclose that the witness was lying under
oath as the prosecutor knew — or should have known — that the witness was a drug dealer
previously observed distributing heroin on a Baltimore City Police Department parking lot just
47 days before his testimony. In a Freudian manner, the prosecutor tipped his hand. By his
objection and legal argument, the prosecutor proved that he knew of the misconduct of Redd as
yet uncharged. This is proven by the prosecutor's objections and legal argument insistent that
12
only Redd's convictions could be used for impeachment. Tr. 5/17/11, p. 189. This is legal
nonsense of course. Redd's prior bad acts may be the source of impeachment even according to
the rules for hearing boards in Baltimore City. Tr. 5/17/11, p. 181. And the prosecutor's
arguments to the contrary support the inference that the prosecutor knew full well about Redd's
criminal misconduct not yet resulting in charge or conviction.
Redd factors in another way in this case. The charges were brought against the accused
officer by a Major who was relieved of the command of HD because of his close, personal
relationship with a criminal. The impeachable conduct of the witness was not disclosed as
required by law and the entirety of the process is suspect because of the relationship between the
charging officer and the witness. As will be shown in the following sections, this overarching
problem permeated the hearing board process and infected the decision of the hearing board.
Regarding Sergeant Brickus, the cross-examination was stymied by a refusal to provide
information regarding the deal that Brickus cut with prosecutors. Tr. 5/18/11, pp. 88-91. The
cross-examination was less effective because counsel was unprepared to exploit the exculpatory
evidence that another Police Sergeant — witnessing the events — criticized the complainant for
five minutes because it was the complainant's conduct that the Sergeant found disreputable. Tr.
5/18/11, pp 38-44.
III. The Trial Board's guilty verdict in Count 1, Specification III — conduct unbecoming an officer — is an error of law, and was not supported by competent, material, and substantial evidence and was otherwise arbitrary and capricious.
The Trial Board erred in its application of the Rules and Regulations of the Baltimore
Police Department. Also, competent, material and substantial evidence in this case
overwhelmingly proved that Ellsworth was not guilty of the violations charged. Any finding that
contradicted the overwhelming evidence of innocence is by definition arbitrary and capricious.
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A brief overview may be helpful to the Court. At a factual level, this case represents a
petty conflict between personalities and egos. It begins with the problem of overlapping
authority, titles and ranks. The rank structure of the Baltimore Police Department is Police
Officer, Sergeant, Lieutenant, Major and Police Commissioner. The word "Detective" is a title,
not a rank. Tr. 5/18/11, p. 197. A simple "Detective" is the rank equivalent of police officer.
Some members are Detective Sergeants, Detective Lieutenants and so on, meaning that the
member has achieved the permanent rank of sergeant or lieutenant and is assigned to a
specialized unit as a Detective. (Such persons are said to have title and rank.)
Within the agency, various special units handle certain types of incidents, owing to the
special training and expertise of the unit. For example, in this case, the homicide section handles
all non-domestic adult kidnappings. Tr. 5/18/11, p. 197. When the homicide section is handling a
case, the assigned detective has complete authority, even to the point of ordering higher-ranking
members (not in the homicide section) away from a dead body and out of the area of a crime
scene. When the homicide section is handling a case, it is impossible for the detective to disobey
the order of any superior officer — other than a superior detective within the unit — for the reason
that the homicide detective is in charge.
What happened in the Ellsworth case is rare. Basically, a patrol sergeant — who obviously
outranks the rank of police officer, or (simple) detective — ordered a homicide detective with case
responsibility to stop investigating a kidnapping. Even assuming the motives of the Police
Sergeant were altruistic, the Sergeant lacked the authority to do what he did.
What transpired thereafter is almost theater of the absurd, with the Detective following
the order of a Detective Lieutenant and a Detective Major, which angered the Patrol Sergeant
who filed an administrative complaint. Incredibly, a criminal — Detective Redd — provided the
14
lynchpin for conviction by offering critical evidence that mitigates against Ellsworth's position.
Redd falsely testified that Ellsworth had not assumed case responsibility. If it is true that
Ellsworth was not in charge, then Ellsworth may be guilty. However, as the evidence clearly
establishes — if Ellsworth was in charge — then he cannot be guilty.
The first witness before the Trial Board was Lieutenant Dameon Carter. Carter gave
some general testimony establishing that there were two "scenes." The first was the scene of the
adult kidnapping. The second was the scene of a possible suspect residence.
Addressing the second scene, Lt. Carter testified that Ellsworth stated: "I have to do
something" and began to walk towards the suspect residence. Tr. 5/17/11, p. 29. 5 Sgt. Brickus
told Ellsworth: "Don't go down there." Ellsworth replied: "I have to do something." Brickus
stated: "If you go down there you're suspended." Id Ellsworth yelled back: "Do what you got to
do." Tr. 5/17/11, p. 30. The Lieutenant yelled for Ellsworth to come back and he complied. Id.
Lieutenant Carter described that Brickus then approached Ellsworth and "you could tell it
was a little heated." Tr. 5/17/11, p. 31. Brickus grabbed for Ellsworth's badge. Id. Brickus (not
Ellsworth) was yelling. "Give me your gun. Give me your badge." Id.
Lieutenant Carter ordered Ellsworth to relinquish his badge and gun to Brickus. Tr.
5/17/11, p. 31. Ellsworth complied. Tr. 5/17/11, pp. 31, 93-94. Though he ordered Ellsworth to
relinquish his badge and gun to Brickus, Lt. Carter stated that Ellsworth was not suspended. Id
Carter ordered Ellsworth to call his Major. Tr. 5/17/11, pp. 32-33. Carter's demeanor must have
added to a confused situation. For example, Carter swore he did not tell Ellsworth to stand down
from his responsibility to continue the investigation. Tr. 5/17/11, p. 95. Carter also swore he did
tell Ellsworth to stand down. Tr. 5/17/11, p. 98. (In other testimony it was established that
5 When the Court reads the testimony, it is not immediately clear from the witness that the witness is referring to the suspect's residence. It became clear during the course of the three-day trial board that the suspect residence was at 2727 W. Garrison Avenue. This is the location referred to in the testimony by the witness.
15
Ellsworth did call his Major and Ellsworth was ordered to continue the criminal investigation.)
Tr. 5/18/11, p. 209.
In short order, Lt. Carter described a second incident between Brickus and Ellsworth. Tr.
5/17/11, pp. 36-37. The problem was this: Brickus was adamant that Ellsworth was suspended.
Tr. 5/17/11, p. 37. Two superior officers — Lieutenant Carter and Major McLarney — were
equally adamant that Ellsworth was not suspended. Tr. 5/17/11, p. 31; Tr. 5/18/11, pp. 208-09.
One of the two — Major McLarney — ordered Ellsworth to continue the investigation. Tr. 5/18/11,
p. 209. In a sense, Ellsworth was literally damned if he did; damned if he didn't.
Ellsworth was charged with "[v]iolation of the Rules and Regulations for the government
of the Police Department for Baltimore City. See Charging Document, Page 1. Two supervisors
testified to those rules in a manner which absolutely establishes that Ellsworth is innocent of the
administrative charges against him.
First, Lieutenant Carter testified to the Administrative law that resolves this case.
Lieutenant Carter testified that the Homicide unit is responsible to investigate adult kidnappings.
Tr. 5/17/11, p. 64. Lieutenant Carter testified that Ellsworth was a homicide detective. Tr.
5/17/11, p. 65. The Lieutenant went on to say that if Ellsworth was in charge, then he was not
insubordinate. Tr. 5/17/11, p. 48. Ironically, the Lieutenant confirmed that Ellsworth was in
charge. Tr. 5/17/11, p. 39.
Note that Carter was a prosecution witness. Frankly, this testimony ends the case as a
matter of law.
Major Terrance McLamey then provided expert testimony that should have clarified the
case even for the Commissioner's hand-picked Trial Board. McLarney established his expertise.
McLarney testified that he has been a police officer for almost 35 years. Tr. 5/18/11, p. 154.
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McLarney testified that he served as a detective in Homicide Division for 22 years. Id.
McLarney testified that he served as the Commander of the Homicide Division for three years.
Id. McLarney testified that he has a bachelor's degree from the American University and a Juris
Doctor degree from the University of Baltimore. McLamey testified that he has had some part in
the investigation of over 1000 homicides and 100 kidnappings. Tr. 5/18/11, p. 156.
McLarney testified that he was the commander of the Homicide Division on August 7,
2009. Tr. 5/18/11, pp 122-23. McLarney testified that he assigned the case to Ellsworth. Id.
McLarney testified that he told Lt. Carter that Ellsworth is in charge of the case. Tr. 5/18/11, p.
124. These facts establish beyond any reasonable doubt that Ellsworth was the Detective
assigned to investigate the adult kidnapping in this case. (It is hard to imagine that McLamey's
testimony does not trump that of the criminal Redd.)
McLamey then testified about the law of the case — the rules and regulations for the
government of the Baltimore Police Department. McLarney testified that General Orders J-8 and
G-9 state that the Homicide Section is the lead unit in the Baltimore Police Department in charge
of investigating kidnappings. Tr. 5/18/11, p. 127.
McLamey testified that Ellsworth was in charge of every aspect of the first scene and any
investigation that grows out of the first scene. Tr. 5/18/11, p. 133. McLarney testified that it
would be unlawful for a patrol sergeant to physically (or otherwise) impede the investigation. Id.
McLamey testified that Ellsworth had complete authority to countermand anyone's orders at that
scene other than his own or a Homicide supervisor. Tr. 5/18/11, p. 139-40. McLarney testified
that it was not possible for Ellsworth to be insubordinate to anyone except a Homicide
supervisor. Tr. 5/18/11, p. 140. McLarney testified that if Ellsworth didn't investigate the
kidnapping, McLarney would have charged Ellsworth with disobeying his order. Tr. 5/18/11, p.
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140.
McLarney testified that in 19 years as a supervisor he had never heard of or run into a
situation where there is an attempt to stop or thwart a Homicide investigation by patrol units. Tr.
5/18/11, p. 142. McLamey testified that a patrol officer or patrol supervisor cannot interfere with
a homicide detective investigating a kidnapping. Tr. 5/18/11, p. 175. McLarney testified that the
homicide detective would decide whether to approach a person, house or any other investigative
step and that the detective could not be stopped or countermanded by a member of the Patrol
Division. Tr. 5/18/11, p. 176.
McLamey explained that the most important aspect of a kidnapping investigation is the
recovery of the victim to prevent harm to the victim. Tr. 5/18/11, p. 144. McLarney testified to
the nature of exigency associated with kidnappings, and that time was of the essence. Tr.
5/18/11, p. 147.
McLarney summarized certain matters for the Trial Board. McLarney testified that a
homicide detective investigating a kidnapping cannot disobey the order of anyone for the reason
that he is in charge. Tr. 5/18/11, p. 179. McLarney testified that it is the policy of the Baltimore
Police Department that the homicide detective assigned to investigate certain enumerated
offenses is the highest-ranking person on the scene of such incidents. Tr. 5/18/11, p. 192. "If he's
performing the task he was assigned, to be the primary investigator, he does not have to follow
an order from anybody [except the commander of Homicide or a higher ranking homicide
supervisor]". Tr. 5/18/11, p. 193.
The prosecutor — consistent with his efforts to credit the testimony of Detective Redd —
asked McLarney if Ellsworth had told Redd that he was not taking control of the investigation.
Tr. 5/18/11, p. 184. McLarney reiterated that a homicide detective is in charge of a kidnapping
18
investigation. Tr. 5/18/11, p. 185.
Construing the facts most favorably to Sergeant Brickus, Brickus had a good faith
concern about the safety of Ellsworth approaching the suspect's residence. This theme is a legal
red herring. First, the decision about what to do in a kidnapping case with inherent risks
regarding officer safety belongs to the assigned homicide investigator. Moreover, McLarney
made clear that in kidnapping cases — where the goal is to interrupt the kidnapping and possible
murder of the victim — the rules and regulations require that investigators act with dispatch, even
if such action puts them at risk. McLarney testified that "[T]here are times when you do unsafe
things because you have no choice." Tr. 5/18/11, p. 189.
The Trial Board made findings of fact relevant to its decision to convict the accused
police detective of conduct unbecoming an officer. The first material fact is that "No firm
decision was agreed upon who would be handling the situation (kidnapping) at this time." This
evidence came from the testimony of Detective Redd. Tr. 5/17/11, p. 155. Redd admitted that he
was friends with Brickus. Tr. 5/17/11, p. 191. It was in Redd's interest to confuse this issue to
protect Brickus from his own misconduct. More to the point, it is simply not true. Lieutenant
Carter confirmed that Ellsworth was in charge. Tr. 5/17/11, p. 39. Major McLarney confirmed
that Ellsworth was in charge.
The Trial Board's next material facts are that "Sgt. Brickus advised Det. Ellsworth not to
approach the [suspect's] house and Det. Ellsworth continued with his actions approaching the
house. Det. Ellsworth was advised by Sgt. Brickus he was suspended and his gun was
subsequently removed from him. Det. Ellsworth was advised to walk down the street. Det.
Ellsworth and Sgt. Brickus had a heated argument at the scene."
Even assuming the second set of facts to be true, they cannot constitute conduct
19
unbecoming an officer on the part of Ellsworth; the facts constitute conduct unbecoming an
officer on the part of Brickus. This isn't a matter of opinion; the Trial Board misapplied the
Rules and Regulations for the government of the Police Department of the City of Baltimore.
The overwhelming evidence is that Ellsworth did not conduct himself in an unbecoming manner;
the overwhelming evidence is that Ellsworth was following a legitimate order of a higher ranking
officer and Brickus was attempting to thwart his good work. Finally, any suggestion that being
the victim of unlawful interference with investigative responsibility equals conduct unbecoming
is arbitrary and capricious application of the administrative rules and regulations.
IV. The Trial Board's guilty verdict in Count 4 — disrespect to superior officer — was not supported by competent, material, and substantial evidence and was otherwise arbitrary and capricious.
Preliminarily, Petitioner's counsel adopts the statement of facts and argument set forth in
support of the third argument and incorporates the same arguments here, except that counsel
does not argue error of law in this sub-section. Counsel concedes that — at least theoretically — it
is possible for a homicide detective to be disrespectful of a superior ranking member of the
agency while not acting in an insubordinate fashion. (For example, a homicide detective yelling
profane remarks, acting in a disorderly manner, or accusing a patrol supervisor of an infamous
crime could certainly constitute disrespect unrelated to the criminal investigation the homicide
detective was completing.)
All of the evidence in this case — from every witness — established that Brickus twice
confronted Ellsworth. Ellsworth was charged with entering into a verbal confrontation with
Brickus. The testimony established that Ellsworth never entered into a verbal confrontation with
Brickus; Ellsworth attempted to overcome Brickus's unlawful intervention into his required
police investigation.
20
The Hearing Board made two findings of fact relevant to Charge 4: "Ellsworth yelled to
Sgt. Brickus, 'If you are going to suspend me, suspend me.'" "Also, testimony revealed Det.
Ellsworth said to Sgt. Brickus "you just suspended me, you have to lock me up."
Brickus testified that Ellsworth stated that he was going to save the kidnap victim. Tr.
5/18/11, p. 19. When Brickus attempted to stop Ellsworth, Brickus testified that Ellsworth said:
"You're going to have to suspend me then, sir. I'm going to save that girl." Tr. 5/18/11. p. 21.
Regarding the second statement, Brickus testified that after this incident, Ellsworth was
standing by his vehicle as ordered. "While he was standing by his vehicle, he was talking, saying
— yelling across the street 'Remember, boss, you've got to put me in cuffs. You've got to arrest
me,' again motioning with his hands." Tr. 5/18/11, p. 46.
The Board found these comments to be disrespectful.
During cross-examination, Petitioner's counsel attempted to prove that Sergeant Brickus
had assaulted the Petitioner. Tr. 5/18/11, pp. 60-61. This is clearly relevant to whether Ellsworth
was disrespectful. Eventually, Brickus impeached his own testimony. First, Brickus testified that
he put hands on Ellsworth to physically move him from one place to another. Tr. 5/18/11, p. 65.
He then admitted that he grabbed Ellsworth and picked him up. Tr. 5/18/11, p. 66. Brickus
testified that Ellsworth was not under arrest at this time. Tr. 5/18/11, p. 66. Brickus admitted that
he "was attempting to put the cuffs on [Ellsworth] when Sgt. Jackson intervened. Tr. 5/18/11, p.
68. Sgt. Brickus admitted that at this point, Ellsworth was under arrest. Tr. 5/18/11, p. 68.
Counsel for Petitioner attempted to contrast the witnesses changing/evolving testimony:
he was not under arrest (p. 66); he was under arrest (p. 68). The prosecutor objected and whined
and intervened to save the witness. The witness was saved. His memory changed. His testimony
evolved. Sgt. Brickus testified that he did not arrest Ellsworth, and further that he had never
21
testified that he had arrested Ellsworth. Tr. 5/18/11, pp. 72-74. When Petitioner's counsel
attempted to prove perjury (by eliminating a failure of normal memory), the prosecutor's
objections were sustained. Tr. 5/18/11, p. 74.
In summary, Sergeant Brickus physically assaulted Ellsworth. Such assault may be
legally justified, such as a lawful arrest of Ellsworth. Brickus alternately said he did not arrest
Ellsworth, he did arrest Ellsworth, and he did not arrest Ellsworth. Brickus testified that another
Sergeant on the scene was critical of Brickus. Brickus cut a deal with prosecutors that the
Petitioner is not allowed to know about.
Ellsworth - who was either unlawfully assaulted or legally arrested and then immediately
released without prosecution - for attempting to obey direct orders to investigate a kidnapping,
was ultimately found guilty of making two disrespectful comments. Either Ellsworth was not a
law enforcement officer at the time of the comments because he was suspended and under arrest
or the comments are an attempt to do his job in the face of illegal and unethical conduct by a
Patrol Sergeant who has lost control of himself.
Ellsworth is not seeking punishment of Brickus by this appeal. It is beyond the authority
of this Court, and not the subject of the appeal. At the same time, it is insult to injury to find
Ellsworth guilty so that a Department can pretend that Ellsworth was somehow at fault for the
bizarre behavior of a patrol sergeant at the scene of a suspected kidnapping.
REQUEST FOR RELIEF.
The Petitioner, Joshua Ellsworth, respectfully requests this Honorable Court reverse the
conviction for Count 1 and Count 4.
Clarke F. Ahlers,19uire Clarke F. Ahlers, P.C.
22
Atholton Square 10450 Shaker Drive, Suite 111 Columbia, MD 21046 410-740-1444
Attorney for Petitioner
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this ( "-day of November, 2011, I caused a copy of the foregoing PETITIONER'S MEMORANDUM OF LAW IN SUPPORT OF PETITION FOR JUDICIAL REVIEW to be mailed by first-class mail, postage prepaid, to: Mr. Paulos Iyob, Associate Legal Counsel, Baltimore Police Department, do 242 W. 29 th Street, Baltimore, MD 21211
Clarke F. A rs, Esquire
23
CLARKE F. AHLERS, P.C.
ATTORNEY-AT-LAW
EXHIBIT 1
/
ATHOLTON SQUARE
10450 SHAKER DRIVE, SUITE III
COLUMBIA, MARYLAND 21046
9 June 2010
TELEPHONE: 410.740.1444
FACSIMILE: 410.740.0048
Mark H. Grimes, Esquire Office of Legal Affairs 242 W. 29 6 Street Baltimore, MD 21211
Re: Detective Joshua Ellsworth. IID Case Number 2009-1458
Dear Mr. Grimes:
My client received a notice from Director Nathan A. Warfield of the Internal Investigation Division that the investigation was sustained for Misconduct / General and Insubordination. Pursuant to your letter of September 2, 2009, I am directing correspondence in this matter to you.
I request discovery as follows. Please accept this as a formal request for discovery to the fullest extent allowed by law, and to the fullest extent required by the Maryland Law Enforcement Officers' Bill of Rights, Md. Ann. Code Public Safety § 3-101, et seq. As a threshold matter, please understand that my request in this matter for production of notice in each instances are for materials described by, or written responses to, my request set forth herein.
Please provide with recorded media, or written document, which purports to be a waiver of any right guaranteed by the Law Enforcement Officers' Bill of Rights. Md. Ann. Code Public Safety § 3-103(f).
Please provide me with the name, rank and assignment of all personnel involved in the investigation of the above-captioned matter(s). Md. Ann. Code Public Safety § 3-104(d).
Please provide me with a copy of the record of the interrogation of my client, including copies of all tape recordings or other recorded media, as well as transcripts prepared in anticipation of litigation. Md. Ann. Code Public Safety § 3-104(k)(3).
Please provide me with the name of any witness and all charges and specifications upon the completion of the investigation. Md. Ann. Code Public Safety § 3-104(n)(I).
Please provide me with a copy of the written policies and procedures which the Department claims were violated by my client. Md. Ann. Code Public Safety § 3-104(n)(I).
Please provide me with a copy of the investigatory file and exculpatory information. Md. Ann. Code Public Safety § 3-104(n)(ii).
Please provide me with a copy of all written correspondence between you or your agents and my client or her lawyer directing my client to appear for interrogation.
Please provide me with a copy of the procedures intended to be used to select the hearing board, including any reference to the contract between the bargaining agent for my client and the Howard County Police Department.
Please provide me with a copy of any polygraph test administered. Md. Arm. Code Public Safety § 3-104(m)(2)(iii).
Please provide me with notice of the time and place of any hearing, along with the issues to be resolved by hearing. Md. Ann Code Public Safety § 3-107(b).
Please provide me with the name, address and date of birth of all witnesses intended to be called by the Department at a hearing board. Md. Ann. Code Public Safety § 3-107(e)(4).
Please understand that these requests are intended to be continuing in nature, and require supplementation when additional information becomes known to the Department. I interpret the words "investigatory file" broadly to effect the intent of the General Assembly of Maryland. Therefore — at a minimum — the term includes a copy of the original complaint, all notices required by law, all the tapes or transcripts of interview and interrogations conducted by any investigator in this matter, and all evidence observed or obtained during the investigation. Obviously, it includes the names of confidential sources. While it is true that the identify of confidential sources is not automatically discoverable, it is necessary that you identify whether such sources exist, even if you intend to litigate to keep the identification a secret.
Please understand that I interpret the phrase "exculpatory evidence" to mean any evidence favorable to the accused because it tends to prove the accused to be not guilty or tends to mitigate punishment. Brady v. Maryland, 373 U.S. 83 (1963).
I agree to pay any reasonable charge for the cost of reproducing the material involved. I agree to execute a confidentiality agreement not inconsistent with the First Amendment to the United States Constitution, the Maryland Declaration of Rights, and the attorney-client privilege.
Thank you in advance for your attention to this matter.
Very truly yours,
Clarke F. Ahl quire.
Cc: Det. Joshua Ellsworth