Joshua Tripp Ellsworth v. Baltimore Police Department, No. 58, September Term 2013.

PUBLIC SAFETY – LAW ENFORCEMENT OFFICERS’ BILL OF RIGHTS –RIGHT
TO DISCLOSURE OF INFORMATION UNDER SECTION 3-104(n) OF THE PUBLIC
SAFETY ARTICLE

Section 3-104(n) of the Public Safety Article, Maryland Code (2003, 2011 Repl. Vol.)
provides that prior to a hearing under the Law Enforcement Officers’ Bill of Rights, an
officer under investigation shall be provided with “a copy of the investigatory file and
any exculpatory information,” but not “nonexculpatory information,” upon certain
conditions. The Court of Appeals of Maryland concluded the Legislature did not intend
to require state and federal agencies to provide information regarding pending
investigations unrelated to the officer and his or her specific charges, but rather, to
require disclose of information related to the officer and the charges specified.
Circuit Court for Baltimore City
Case No. 24-C-11-005397
Argued: February 10, 2014
                                   IN THE COURT OF APPEALS OF


                                               MARYLAND

                                                      No. 58

                                          September Term, 2013


                                      JOSHUA TRIPP ELLSWORTH

                                                       v.

                                           BALTIMORE POLICE
                                             DEPARTMENT


                                         Barbera, C.J.,
                                         Harrell,
                                         Battaglia,
                                         Greene,
                                         Adkins,
                                         McDonald,
                                         Raker, Irma S. (Retired, specially
                                         assigned),

                                                JJ.


                                         Opinion by Battaglia, J.
                                   Barbera, C.J., Harrell and Adkins, JJ.,
                                                  dissent.




                                            Filed: April 24, 2014
        In this case we are called upon to interpret the Law Enforcement Officers’ Bill of

Rights (“LEOBR”), 1 which is triggered when a “law enforcement officer” 2 is under

investigation or subject to interrogation for a reason that may result in “a

recommendation of demotion, dismissal, transfer, loss of pay, reassignment, or similar

action that is considered punitive”. Section 3-107(a). Under Section 3-104(n)(ii) of the

LEOBR, a law enforcement officer must be provided with “any exculpatory information”

upon completion of an investigation, at least ten days before a hearing, upon certain

conditions not relevant here. 3 It is the definition of “exculpatory” with which we



1
  The Law Enforcement Officers’ Bill of Rights is located at Section 3-101 et seq. of the
Public Safety Article, Maryland Code (2003, 2011 Repl. Vol.). Unless otherwise
indicated, all statutory references hereinafter are to the Public Safety Article, Maryland
Code (2003, 2011 Repl. Vol.).
2
  A “law enforcement officer,” for the purposes of the LEOBR, includes members of the
Police Department of Baltimore City. Section 3-101(e)(ii)(2).
3
    Section 3-104(n) provides:

               (n) Information provided on completion of investigation.—(1)
               On completion of an investigation and at least 10 days before
               a hearing, the law enforcement officer under investigation
               shall be:
                      (i) notified of the name of each witness and of each
                      charge and specification against the law enforcement
                      officer; and
                      (ii) provided with a copy of the investigatory file and
                      any exculpatory information, if the law enforcement
                      officer and the law enforcement officer’s
                      representative agree to:
                        1. execute a confidentiality agreement with the law
                        enforcement agency not to disclose any material
                        contained in the investigatory file and exculpatory
                                                                            (continued . . .)
are concerned. 4

       In the present case, Joshua Tripp Ellsworth, Petitioner, a homicide detective with

the Baltimore City Police Department (“Department”), Respondent, was involved in an

incident with Baltimore City Police Sergeant Jonathan Brickus of the Patrol Division.

The incident arose during an investigation into a possible abduction, when the victim of

the abduction was purportedly being held in a house located on the 2700 block of West

Garrison Boulevard. 5       After members of the homicide unit, including Detective

Ellsworth, arrived, no agreement was reached as to which unit would supervise the scene,
_____________________________
                         information for any purpose other than to defend the
                         law enforcement officer; and
                         2. pay a reasonable charge for the cost of
                         reproducing the material.
                   (2) The law enforcement agency may exclude from the
                   exculpatory information provided to a law enforcement
                   officer under this subsection:
                        (i) the identity of confidential sources;
                        (ii) nonexculpatory information; and
                        (iii) recommendations as to charges, disposition, or
                        punishment.
4
  Detective Ellsworth petitioned for certiorari, which we granted, 432 Md. 466, 69 A.3d
474 (2013), to consider:

              Does the statutory requirement for disclosure of “any
              exculpatory evidence” pursuant to the Law Enforcement
              Officers’ Bill of Rights (“LEOBR”), Md. Public Safety § 3-
              104(n)(1), require a Police Department to disclose
              impeachment evidence, specifically information that a
              prosecution witness employed as a police officer is actually a
              major narcotics trafficker?
5
   The 2700 block of West Garrison Boulevard is located in the northwest region of
Baltimore        City.        Garrison-Hill         Community              Association,
http://www.neighborhoodlink.com/Garrison-Hill/map (last visited April 17, 2014).

                                              2
but Sergeant Brickus advised Detective Ellsworth not to enter the home in which the

victim and abductor were allegedly ensconced. Detective Ellsworth, however, began

walking toward the house and failed to adhere to Sergeant Brickus’s orders to stop;

Sergeant Brickus told Detective Ellsworth that he was suspended and seized Detective

Ellsworth’s gun. A more heated argument ensued; Detective Ellsworth, without his gun,

advanced on the house and entered the porch. Sergeant Brickus, thereafter, removed

Detective Ellsworth from the porch and attempted to handcuff him and then filed a

complaint against Detective Ellsworth, which precipitated an investigation by the Internal

Investigation Division of the Baltimore Police Department. 6 The investigator found that

the allegations against Detective Ellsworth were supported by sufficient evidence, 7 and

he was charged with seven violations of four administrative rules:

                                      CHARGE 1

                                           ***

             Rule 1, 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

6
   The Baltimore Police Department rules and regulations regarding investigations and
interrogations of law enforcement officers and resulting disciplinary procedures are
contained in Baltimore Police Department General Order 48-77, enacted July 1, 1977.
7
   Upon completion of an investigation, an investigator classifies a complaint as either
“sustained,” “not sustained,” “exonerated,” or “unfounded,” with a sustained charge
being one that is “supported by sufficient evidence.” Mayor and City Council of
Baltimore v. Maryland Committee Against the Gun Ban, 329 Md. 78, 85, 617 A.2d 1040,
1043 (1993).

                                            3
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 1: For that, on or about August 7, 2009,
Detective Joshua Ellsworth undermined the good order,
efficiency and discipline of the Department by failing to obey
several lawful commands and/or orders given to him by
Sergeant Jonathan Brickus, a permanent ranking supervisor,
not to approach the dwelling located at 2727 W. Garrison
Avenue, thereby, conducting himself in a manner
unbecoming a member of the Baltimore Police Department.

Specification 2: For that, on or about August 7, 2009,
Detective Joshua Ellsworth undermined the good order,
efficiency and discipline of the Department by failing to obey
a lawful command and/or order from Sergeant Jonathan
Brickus, a permanent ranking supervisor, to not knock on the
door of the dwelling located at 2727 W. Garrison Avenue,
thereby, conducting himself in a manner unbecoming a
member of the Baltimore Police Department.

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 2

                             ***

Section 14: No member of the Department shall willfully
disobey any lawful command or order, either verbal or
written, of any superior or other member designated to
command.


                              4
Specification 1: For that, on or about August 7, 2009,
Detective Joshua Ellsworth failed to obey several lawful
commands and/or orders from Sergeant Jonathan Brickus, a
permanent ranking supervisor, not to approach the dwelling
located at 2727 W. Garrison Avenue, a home possibly
harboring an alleged abduction victim.

Specification 2: For that, on or about August 7, 2009,
Detective Joshua Ellsworth failed to obey a lawful command
and/or order from Sergeant Jonathan Brickus, a permanent
ranking supervisor, to not knock on the door of the dwelling
located at 2727 W. Garrison Avenue.

                        CHARGE 3

                            ***

Cooperation with Other Offices and Agencies

      Members will cooperate with all legally authorized
agencies and their representatives in the pursuit of justice.

        An officer or agency may be one among many
organizations that provide law enforcement services to a
jurisdiction. It is imperative that members assist colleagues
fully and completely with respect and consideration at all
times.

Specification: For that, on or about August 7, 2009,
Detective Joshua Ellsworth, a detective within the Homicide
Section 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.

                        CHARGE 4

                            ***

Section 13: No member of the department at any time shall
be insubordinate or disrespectful to a superior.

                             5
                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.

        Detective Ellsworth elected a trial board hearing rather than accept the sanction

recommended by the Department. 8 Prior to the hearing, counsel for Detective Ellsworth

requested in writing from the City Solicitor, 9 representing the Department, “discovery to



8
    Section 3-107, in relevant part, provides:

                (a)     Right to hearing.—(1) Except as provided in
                paragraph (2) of this subsection and § 3-111 of this subtitle, if
                the investigation or interrogation of a law enforcement officer
                results in a recommendation of demotion, dismissal, transfer,
                loss of pay, reassignment, or similar action that is considered
                punitive, the law enforcement officer is entitled to a hearing
                on the issues by a hearing board before the law enforcement
                agency takes that action.

“The function of the hearing board is to make findings of fact and conclusions of law in
aid of a recommendation to the Chief”. Boyle v. Maryland-National Capital Park and
Planning Comm’n, 385 Md. 142, 155, 867 A.2d 1050, 1058 (2005).
9
  The Office of Legal Affairs, a branch of the Baltimore City Department of Law, headed
by the City Solicitor, reviews internal investigations of law enforcement officers and
presents the Department’s case before the Hearing Board. Blondell v. Baltimore City
Police Department, 341 Md. 680, 672 A.2d 639 (1996); Baltimore Police Department;
General Order 48-77, Annex H (July 1, 1977). The City Solicitor is the legal
representative of the City of Baltimore and the Baltimore Police Department. City of
Baltimore, Law/Practice Groups, http://www.baltimorecity.gov/Government/Agencies
Departments/Law/PracticeGroups.aspx (last visited April 17, 2014). Section 24 of
                                                                         (continued . . .)
                                                 6
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.” In

relevant part, Detective Ellsworth’s written request stated:

                    Please provide me with a copy of the investigatory file
              and exculpatory information. Md. Ann. Code Public Safety §
              3-104(n) (ii).

                                          ***

                     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).




_____________________________
Article 7 of the Baltimore City Charter (2013) sets forth the responsibilities of the City
Solicitor, providing, in relevant part:

              (a) Legal advisor.
              The City Solicitor shall be the legal adviser and representative
              of the City and its several departments, officers, commissions,
              boards and authorities, and shall have general supervision and
              direction of the legal business of the City. Except as provided
              in subsection (c), no such agency or officer or any authority
              created in connection with municipal affairs shall have
              authority to employ or retain counsel other than the City
              Solicitor.
              (b) Legal proceedings; opinions and advice; deeds, contracts,
              etc.
              The City Solicitor shall have sole charge and direction of the
              preparation and trial of all suits, actions and proceedings of
              every kind to which the City, or any municipal officer or
              agency, shall be a party.


                                             7
         At the hearing before a three member board, 10 seven law enforcement witnesses

were called to testify by the Department, including Officer Daniel Redd, who had been

present during the incident between Detective Ellsworth and Sergeant Brickus. 11


10
     Section 3-107(c) provides, in relevant part:

                 (c) Membership of hearing board.—(1) Except as provided
                in paragraph (4) of this subsection and in § 3-111 of this
                subtitle, the hearing board authorized under this section shall
                consist of at least three members who:
                (i) are appointed by the chief and chosen from law
                enforcement officers within that law enforcement agency, or
                from law enforcement officers of another law enforcement
                agency with the approval of the chief of the other agency; and
                (ii) have had no part in the investigation or interrogation of
                the law enforcement officer.
                (2) At least one member of the hearing board shall be of the
                same rank as the law enforcement officer against whom the
                complaint is filed.
11
   The hearing board, in its written findings, summarized the testimony of Lieutenant
Damien Carter, Police Officer Sharron Mason, Detective Michelle Bolden, Sergeant
Jonathan Brickus, Major Terrence McLarney, Detective Joshua Ellsworth, and Officer
Daniel Redd. The testimony of Officer Redd’s observations regarding the incident
between Detective Ellsworth and Sergeant Brickus was encapsulated as follows:

                Officer Redd testified that he was on the scene and observed
                Det. Ellsworth’s arrival. Discussion occurred who would be
                handling the situation. Sgt. Brickus advised Det. Ellsworth
                not to approach the house but Det. Ellsworth did. Officer
                Redd testified that Sgt. Brickus told Det. Ellsworth not to go
                down the street which he did. Det. Ellsworth returned and
                headed towards the house again. Sgt. Brickus went up on the
                porch and advised Det. Ellsworth to turn over his gun and
                badge. Officer Redd testified that Det. Ellsworth relinquished
                his badge and gun to Lt. Carter who arrived at the scene.
                Later, Ellsworth returned to the house and again started
                knocking on the front door, until he was escorted off the
                porch.

                                               8
Counsel for Detective Ellsworth cross-examined Officer Redd regarding whether Officer

Redd had “an attorney in [his] employ protecting [his] interests for an ongoing federal

criminal investigation” in addition to whether Officer Redd knew he was “the subject, in

fact the target, of an ongoing federal criminal investigation.” Officer Redd answered

both questions in the negative. Counsel for Detective Ellsworth further queried Officer

Redd, “Since you were 18 years of age, have you ever distributed a controlled dangerous

substance?” Officer Redd again answered “No.”

       The hearing board found Detective Ellsworth guilty of two of the charges, but not

guilty of five. The guilty findings included: Charge I, Specification III for conduct “in a

manner unbecoming a member of the Baltimore Police Department” by entering into a

verbal confrontation with Sergeant Brickus and Charge IV, Specification I for behaving

“in an insubordinate and/or disrespectful manner when he entered into a verbal

confrontation” with Sergeant Brickus. The hearing board found Detective Ellsworth not

guilty of Charge I, Specification I for conduct “in a manner unbecoming a member of the

Baltimore Police Department” by approaching the dwelling at 2727 West Garrison

Avenue; not guilty of Charge I, Specification II for conduct “in a manner unbecoming a

member of the Baltimore Police Department” by failing to obey Sergeant Brickus to not

knock on the door of the dwelling at 2727 West Garrison Avenue; not guilty of Charge II,

Specification I for failing “to obey several lawful commands and/or orders” from

Sergeant Brickus to not approach the dwelling; not guilty of Charge II, Specification II

for failing “to obey a lawful command and/or order” from Sergeant Brickus to not knock

on the door of the dwelling; and not guilty of Charge III, Specification I by entering into

                                            9
a verbal confrontation with Sergeant Brickus in plain view of law officers and members

of the public. The Hearing Board recommended seven days loss of leave and a letter of

reprimand, which the Police Commissioner imposed by Final Order. 12

        Detective Ellsworth filed, in the Circuit Court for Baltimore City, a “Petition for

Judicial Review of Decision and Order, and Final Order of Police Commissioner

Pursuant to the Maryland Law Enforcement Officers’ Bill of Rights.” 13 During his

hearing in the Circuit Court for Baltimore City, Detective Ellsworth, among other

concerns, asserted that his LEOBR hearing was “fundamentally unfair” because of

“misconduct on the part of the Department regarding Detective Redd”, specifically,

               by failing to disclose . . . exculpatory evidence, the Board was
               left with the mis-impression that this Detective, Detective
               Redd, was a credible person. When they should have said;
               we discredit his testimony, because though he calls himself a
               detective of the Baltimore City Police Department, he’s in
               fact, one of the largest distributors of heroin in the City of
               Baltimore.

Detective Ellsworth’s counsel further asserted during the circuit court hearing that he

inferred that Officer Redd was under investigation because of events occurring before the

hearing:

12
    The Hearing Board also recommended “that he be transferred from Homicide Section
if the Commanding Officer of the Homicide Section wishes to do so”, which was not
adopted.
13
     Section 3-109(a) provides:

               (a)    By Circuit Court.—An appeal from a decision made
               under § 3-108 of this subtitle shall be taken to the circuit
               court for the county in accordance with Maryland Rule 7-202.



                                             10
             I drew an inference from what had transpired prior to the
             Hearing Board. The FBI contacted my client about Detective
             Redd. The DEA contacted me about Detective Redd. Had
             the ATF contacted me, I would have thought it had something
             to do with alcohol or guns. Because it was the FBI and the
             DEA, I suspected that perhaps the man, Detective Redd, had
             something to do with drugs.

      The Department argued that were there to have been an investigation, knowledge

of it could not be “imputed to the entire Department”; that at the time of the hearing

“there wasn’t anything substantiated” against Officer Redd and that “people get

investigated all the time” sometimes turning up “nothing”; and, regardless, “even without

the testimony of Redd . . . there’s enough evidence in the record” that Detective

Ellsworth would have been found guilty “[e]ven if we just excluded Redd from the

record”:

             [W]hat matters is that Ellsworth was involved in this physical
             or verbal altercation out in public, before everybody. That’s
             the first charge. And the second one is that he was
             disrespectful. . . .
                    Those are the two things that he was found guilty of. I
             don’t see how Redd really plays into that at all. I mean, other
             than, who was in command. But that doesn’t really matter.
             He’s not charged with being insubordinate. He’s charged
             with being disrespectful to a superior officer. And, he’s
             charged with conduct that’s unbecoming.
                    I think—Ellsworth’s own testimony admits that, you
             know, he sort of got into this verbal altercation. It was
             embarrassing to the Police Department. Everybody was
             watching. Other police officers. . . . There’s, you know,
             sixteen witness’s statements of people who, you know, have
             varying degree of watching this episode. But Redd you can
             throw out Redd, and there’s still plenty of evidence, I think,
             to find that he was disrespectful to Brickus, and that he acted
             and his behavior was unbecoming to a police officer.



                                           11
      In reversing the Police Commissioner’s Final Order imposing the hearing board’s

recommended sanction, the judge honed in on the fact that the Department failed to

disclose any information regarding an investigation of Officer Redd, which, under the

court’s view, constituted a violation of the LEOBR:

                    Petitioner asserts that no exculpatory evidence or
             material was provided specifically concerning Detective
             Redd.[14] Petitioner further asserts that at the hearing,
             Respondent, Baltimore Police Department, continued to deny
             any knowledge of any exculpatory or impeachment evidence
             relating to Detective Redd. It is asserted by Petitioner that on
             or about July 19, 2011, sixty-three days after Petitioner’s
             hearing, Detective Redd was arrested and charged with
             federal drug conspiracy and firearm charges.
                                         ***
                    In the instant case, Petitioner’s counsel wrote a
             detailed letter, which is part of the record therein, to the
             Office of Legal Affairs of the Baltimore Police Department
             specifically outlining his requests regarding exculpatory
             evidence. In response, Petitioner received no evidence
             whatsoever regarding Detective Redd. On the facts in the
             record herein, the Court finds that the rights of Petitioner
             were prejudiced by the manner in which the Respondent dealt
             with the issues pertaining to Detective Redd. This Court
             finds that Respondent’s failure to disclose any information
             regarding the investigation of Detective Redd constitutes a
             violation of Petitioner’s rights under the Law Enforcement
             Officers’ Bill of Rights and, therefore, constitutes an unlawful
             procedure.

      The Department appealed to the Court of Special Appeals, presenting the

following question for review:

             Did the Circuit Court err in finding that [BPD] violated the
             rights of the Appellee under LEBOR [sic] § 3-104(n)(1) by

14
   The Circuit Court referred to Daniel Redd as “Detective Redd.” We use “Officer
Redd,” consistent with his title and testimony in front of the hearing board.

                                           12
             failing to disclose any information regarding the FBI’s
             investigation of a witness in the trial board, Daniel Redd, for
             distributing controlled dangerous substances and handgun
             violations?

Baltimore Police Department v. Ellsworth, 211 Md. App. 198, 201, 63 A.3d 1192, 1193

(2013) (alterations in original). The intermediate appellate court, in a reported opinion,

reversed the judgment of the Circuit Court, determining, inter alia, that the information

regarding Officer Redd would not have tended to exonerate Detective Ellsworth of the

administrative charges of being disrespectful to a superior officer or engaging in conduct

unbecoming an officer, “and, therefore, does not fall within the definition of

‘exculpatory.’” Id. at 211, 63 A.3d at 1199.

      We confront the same issues of whether the precepts of Brady v. Maryland, 373

U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny, should be imported into

the LEOBR, and if so, whether the Department is thereby obligated to disclose

information in the administrative setting about an alleged criminal investigation of a

witness.

      In Brady, the Supreme Court of the United States held that, “the suppression by

the prosecution of evidence favorable to an accused upon request violates due process

where the evidence is material either to guilt or to punishment, irrespective of the good

faith or bad faith of the prosecution.” Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97, 10

L.Ed.2d at 218. In Brady, the defendant and a companion, Boblit, were found guilty of

murder in the first degree in separate trials and were sentenced to death. Id. at 84, 83

S.Ct. at 1195, 10 L.Ed.2d at 217. Prior to trial, Brady requested access to extrajudicial


                                           13
statements that were made by Boblit; although the prosecution disclosed several

statements, it withheld the statement in which Boblit admitted to committing the

homicide. Id. On appeal from his denial of post-conviction relief, we determined that the

withholding of the confession was prejudicial to Brady and denied him due process of

law and remanded the case for retrial on the issue of punishment only. Brady v. State,

226 Md. 422, 430-31, 174 A.2d 167, 171 (1961), aff’d, 373 U.S. 83, 83 S.Ct. 1194, 10

L.Ed.2d 215 (1963). On certiorari, the Supreme Court affirmed and held that although

Boblit’s confession did not exculpate Brady, it was material to the determination of his

punishment, such that the failure of its disclosure violated due process. See Brady, 373

U.S. at 90-91, 83 S.Ct. at 1198, 10 L.Ed.2d at 220.

       Subsequently, in Giglio v. United States, 405 U.S. 150, 151, 92 S.Ct. 763, 764, 31

L.Ed.2d 104, 106 (1972), the Court confronted the question of whether Brady was

implicated by the nondisclosure of a promise not to prosecute made by the State to its key

witness in exchange for his testimony. The Court determined that because the State

relied almost entirely on the witness’s testimony as the co-conspirator to substantiate the

charges against Giglio for passing forged money orders, his credibility was critical, such

that without his testimony “there could have been no indictment and no evidence to carry

the case to the jury.” Id. at 150-51, 154, 92 S.Ct. at 764, 766, 31 L.Ed.2d at 106-07, 109.

Therefore, the failure to disclose the plea deal entitled the defendant to a new trial. Id. at

155, 92 S.Ct. at 766, 31 L.Ed.2d at 109. In so doing, the Court acknowledged that the

State’s failure to disclose evidence that could be used for impeachment was not

automatically a violation of Brady, if the evidence was “not likely to have changed the

                                             14
verdict.” Id. at 154, 92 S.Ct. at 766, 31 L.Ed.2d at 108, quoting United States v. Keogh,

391 F.2d 138, 148 (2d Cir. 1968).

       In United States v. Agurs, 427 U.S. 97, 100-03, 96 S.Ct. 2392, 2396-97, 49

L.Ed.2d 342, 347-49 (1976), the Court considered whether the State was required under

Brady to disclose that the victim in a murder trial had been convicted of assault and two

charges of carrying a deadly weapon, which could be used by the defendant to show his

propensity for violence in furtherance of Agurs’s theory of self-defense. The Court

concluded that the victim’s convictions were not material to the case because they were

cumulative of other evidence and were not likely to have changed the verdict. Id. at 113-

14, 96 S.Ct. at 2402, 49 L.Ed.2d at 355-56. The Court explained that the prosecutor does

not have an obligation to disclose all information, because “[i]f everything that might

influence a jury must be disclosed, the only way a prosecutor could discharge his

constitutional duty would be to allow complete discovery of his files as a matter of

routine practice.” Id. at 109, 96 S.Ct. at 2400, 49 L.Ed.2d at 353.

       Subsequently, in United States v. Bagley, 473 U.S. 667, 670-74, 105 S.Ct. 3377-

79, 87 L.Ed.2d 481, 486-89 (1985), the Court addressed whether the State’s duty to

disclose under Brady extended to the terms of the agreements reached between two key

witnesses with the Bureau of Alcohol, Tobacco and Firearms to supply information about

the defendant’s narcotics and gun dealings in exchange for money. The conviction was

reversed and remanded because the prosecutor had misrepresented the lack of

inducement and there could be a “reasonable probability” that, had the information been



                                            15
disclosed, the result of the trial would have been different. Id. at 683-84, 105 S.Ct. at

3384-85, 87 L.Ed.2d at 495.

       Our Brady jurisprudence began in 1964 with Dyson v. Warden of the Maryland

Penitentiary, 233 Md. 630, 196 A.2d 455 (1964), and extends to our most recent case of

Derr v. State, 434 Md. 88, 73 A.3d 254 (2013). This jurisprudence clearly shows that

Brady is limited to the criminal context and has never been applied in a civil or

administrative setting. The Supreme Court, likewise, has not extended Brady beyond the

criminal context and has explained that Brady and its progeny are “access-to-evidence

cases”, specific to criminal prosecutions, imposed to ensure “the integrity of our criminal

justice system.” California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 2532, 81

L.Ed.2d 413, 420 (1984).

       We have found violations of Brady in situations in which the State has failed to

disclose confessions by one other than the defendant, Bloodsworth v. State, 307 Md. 164,

175, 512 A.2d 1056, 1061 (1986), prior material inconsistencies in statements made by

key witnesses and in situations in which a witness for the State had received inducements

to testify, which had not been disclosed by the prosecution. Ware v. State, 348 Md. 19,

50, 702 A.2d 699, 714 (1997); Wilson v. State, 363 Md. 333, 356, 768 A.2d 675, 687

(2001); Conyers v. State, 367 Md. 571, 606-07, 790 A.2d 15, 36 (2002); State v.

Williams, 392 Md. 194, 228, 896 A.2d 973, 993 (2006); Harris v. State, 407 Md. 503,

524-26, 966 A.2d 925, 937-38 (2009).

       We have not found Brady violations where the undisclosed evidence was not

material to the conviction, State v. Tichnell, 306 Md. 428, 463, 509 A.2d 1179, 1197

                                            16
(1986); would have impeached cumulative or non-material witnesses’ testimony,

Grandison v. State, 390 Md. 412, 434-35, 889 A.2d 366, 379 (2005); or was cumulative

of other evidence demonstrating the victim’s propensity for violence. State v. Thomas,

325 Md. 160, 192, 599 A.2d 1171, 1186 (1992). 15

        We, in fact, have declined to apply the discovery requirements of Brady in a civil

context. In Wagonheim v. Maryland State Board of Censors, 255 Md. 297, 300, 308-09,

258 A.2d 240, 241, 245 (1969), aff’d sub nom. Grove Press, Inc. v. Maryland State

Board of Censors, 401 U.S. 480, 91 S.Ct. 966, 28 L.Ed.2d 205 (1971), an appeal from a

ruling in which a movie was disapproved for licensing as being obscene, the petitioner

alleged that the lower court erred by refusing “to order the Attorney General’s office to

disclose the names of all the experts whom they requested to view the film”, which he

analogized to the State’s disclosure requirement under Brady. We declined to apply the

Brady tenets and opined that even were we to apply them, the Attorney General was not

required to provide the information requested. Id. at 309, 258 A.2d at 246

        We have, since Brady, codified the State’s disclosure requirement in Maryland

Rule 4-263, 16 a rule of criminal procedure which, in 1986, provided for disclosure of


15
   In Williams v. State, 416 Md. 670, 691-95, 7 A.3d 1038, 1050-52 (2010), we declined
to determine whether failure to disclose a prior statement made by an eyewitness, that she
was legally blind, was a material omission in violation of Brady, and remanded on other
grounds.
16
     Maryland Rule 4-263, “Discovery in Circuit Court,” provides, in pertinent part:

               (d) Disclosure by the State’s Attorney.
                                           ***
                                                                             (continued . . .)
                                             17
_____________________________
            (5) Exculpatory information. All material or information in
            any form, whether or not admissible, that tends to exculpate
            the defendant or negate or mitigate the defendant's guilt or
            punishment as to the offense charged;
            (6) Impeachment information. All material or information in
            any form, whether or not admissible, that tends to impeach a
            State’s witness, including:
                   (A) evidence of prior conduct to show the character of
            the witness for untruthfulness pursuant to Rule 5-608 (b);
                   (B) a relationship between the State’s Attorney and the
            witness, including the nature and circumstances of any
            agreement, understanding, or representation that may
            constitute an inducement for the cooperation or testimony of
            the witness;
                   (C) prior criminal convictions, pending charges, or
            probationary status that may be used to impeach the witness,
            but the State’s Attorney is not required to investigate the
            criminal record of the witness unless the State’s Attorney
            knows or has reason to believe that the witness has a criminal
            record;
                   (D) an oral statement of the witness, not otherwise
            memorialized, that is materially inconsistent with another
            statement made by the witness or with a statement made by
            another witness;
                   (E) a medical or psychiatric condition or addiction of
            the witness that may impair the witness’s ability to testify
            truthfully or accurately, but the State’s Attorney is not
            required to inquire into a witness’s medical, psychiatric, or
            addiction history or status unless the State’s Attorney has
            information that reasonably would lead to a belief that an
            inquiry would result in discovering a condition that may
            impair the witness’s ability to testify truthfully or accurately;
                   (F) the fact that the witness has taken but did not pass
            a polygraph examination; and
                   (G) the failure of the witness to identify the defendant
            or a co-defendant;

The District Court requirements are set forth in Maryland Rule 4-262,
which provides, in relevant part:

             (c) Obligations of the parties.
                                                                           (continued . . .)
                                           18
“[a]ny material or information tending to negate or mitigate the guilt or punishment of the

defendant as to the offense charged.” 17 In 2008, we conformed Rule 4-263 to our

jurisprudence to better define the scope of discovery. Supplement to the One Hundred

Fifty-Eighth Report of the Standing Committee on Rules of Practice and Procedure at 4

(March 25, 2008). At that time, Rule 4-263 was amended to more specifically require

disclosure by the State of evidence of a relationship or agreement between the witness

and prosecution; prior criminal convictions; materially inconsistent witness statements

not otherwise memorialized; medical, psychiatric, or addiction conditions of the witness
_____________________________
              (1) Due diligence. The State’s Attorney and defense shall
              exercise due diligence to identify all of the material and
              information that must be disclosed under this Rule.
              (2) Scope of obligations. The obligations of the State’s
              Attorney and the defense extend to material and information
              that must be disclosed under this Rule and that are in the
              possession or control of the attorney, members of the
              attorney’s staff, or any other person who either reports
              regularly to the attorney’s office or has reported to the
              attorney’s office in regard to the particular case.
              Cross references.       For the obligations of the State’s
              Attorney, see State v. Williams, 392 Md. 194 (2006).
              (d) Disclosure by the State’s Attorney.
              (1) Without request. Without the necessity of a request, the
              State’s Attorney shall provide to the defense all material or
              information in any form, whether or not admissible, that tends
              to exculpate the defendant or negate or mitigate the
              defendant’s guilt or punishment as to the offense charged and
              all material or information in any form, whether or not
              admissible, that tends to impeach a State’s witness.
17
    Rule 4-263 was derived from Maryland Rule 741, which mandated disclosure of
“[a]ny material or information within his possession or control which tends to negate the
guilt of the defendant as to the offense charged or would tend to reduce his punishment
therefor”. Rule 741 (1984).


                                            19
that would impair his ability to testify truthfully; the witness’s failure of a polygraph

examination; the witness’s failure to identify the defendant; and “evidence of prior

conduct to show the character of the witness for untruthfulness pursuant to Rule 5-608

(b).” 18 Id. at 4-5.

       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. In this regard, we have long-held

that “mere accusations of crime or misconduct may not be used to impeach. . . .

[A]ccusations of misconduct are still clothed with the presumption of innocence and

receiving mere accusations for this purpose would be tantamount to accepting someone

else’s assertion of the witness’ guilt and pure hearsay.” State v. Cox, 298 Md. 173, 179-

80, 468 A.2d 319, 322 (1983) (citations omitted).             Furthermore, not all acts of

misconduct are “prior bad acts that are relevant to assessing [the witness’s] credibility

regardless of whether a conviction resulted”, but only those crimes or bad acts that

18
    Maryland Rule 5-608(b), “Evidence of character of witness for truthfulness or
untruthfulness” provides, in relevant part:

               (b) Impeachment by examination regarding witness’s own
               prior conduct not resulting in convictions. The court may
               permit any witness to be examined regarding the witness’s
               own prior conduct that did not result in a conviction but that
               the court finds probative of a character trait of untruthfulness.
               Upon objection, however, the court may permit the inquiry
               only if the questioner, outside the hearing of the jury,
               establishes a reasonable factual basis for asserting that the
               conduct of the witness occurred. The conduct may not be
               proved by extrinsic evidence.



                                              20
logically relate to a witness’s character for untruthfulness. Robinson v. State, 298 Md.

193, 197, 468 A.2d 328, 331 (1983); see Ricketts v. State, 291 Md. 701, 704, 436 A.2d

906, 907-08 (1981).

      Detective Ellsworth, as he must, concedes that the constitutional protections

afforded by Brady do not apply in an administrative setting, but, instead, argues that

“exculpatory” is “a term of art whose meaning may be found in Brady and its progeny,”

which the Legislature intended to import into the statute by including the term

“exculpatory” in the 1987 amendment to Section 3-104(n).          He argues that he was

prejudiced by the Department’s failure to disclose the alleged investigation of Officer

Redd, because he could not have been found guilty of insubordination, unless the

“Hearing Board weighed the testimony of Detective Redd against that of three others:

Lieutenant Carter, Major McLarney and Detective Joshua Ellsworth.”

      The Department argues that the language of Section 3-104(n) is not ambiguous

and the plain meaning of the terms should apply: “exculpatory” meaning “tending to

clear from a charge of fault or of guilt” and “impeach” meaning “to challenge or discredit

the credibility, of a witness,” citing Webster’s Revised Unabridged Dictionary 521, 734

(1913). Further, the Department argues that the legislative history of the LEOBR does

not indicate that the Legislature intended “exculpatory” in Section 3-104(n) to include all

impeachment information, as the statute differentiated between that which is

“exculpatory information” and that which is “nonexculpatory information.” Further, the

Department proffers that Rule 4-263 provides guidance as to the distinct definitions of

the terms “exculpatory” and “impeachment,” such that the information sought by

                                            21
Detective Ellsworth was “nonexculpatory”, because it did not tend to negate the guilt of

Detective Ellsworth. The Department argues, alternatively, even assuming arguendo, it

was required to disclose information regarding an investigation by the federal law

enforcement agencies into Officer Redd’s activities, that failure did not prejudice

Detective Ellsworth as he was aware of the very information he alleges he was

wrongfully denied; because mere accusations of illegal conduct cannot be used to

impeach a witness; extrinsic evidence could not have been introduced to contradict

Officer Redd’s testimony; and also Officer Redd’s testimony was cumulative of other

witnesses’ testimony.

      What is clear, however, is that the legislative history of Section 3-104(n) contains

no reference to Brady and its progeny. It does, however, reflect a myriad of concerns

regarding disclosure of information beyond the officer and the conduct with which the

officer was charged.

      The LEOBR was enacted in Chapter 722 of the Maryland Laws of 1974, “to

provide procedural safeguards for law enforcement officers during any investigation and

subsequent hearing that might result in disciplinary action . . . ‘in departmental

disciplinary matters.’” Boyle v. Maryland-National Capital Park & Planning Comm’n,

385 Md. 142, 155, 867 A.2d 1050, 1058 (2005) (emphasis in original), quoting Moats v.

City of Hagerstown, 324 Md. 519, 526, 597 A.2d 972, 975 (1991). The investigation of

charges against a law enforcement officer and a resultant hearing under the LEOBR are

distinctly administrative. See Popkin v. Gindlesperger, 426 Md. 1, 4-5, 43 A.3d 347,

349-50 (2012); Montgomery County Maryland v. Shropshire, 420 Md. 362, 374-75, 23

                                           22
A.3d 205, 212-13 (2011); Coleman v. Anne Arundel County Police Department, 369 Md.

108, 122, 797 A.2d 770, 779 (2002) (stating that the LEOBR is a law enforcement

officer’s “exclusive remedy in matters of departmental discipline”).

       Section 3-104(n) of the LEOBR sets forth the requirements for pre-hearing

disclosure to an officer under investigation:

              (n) Information provided on completion of investigation.—
              (1) On completion of an investigation and at least 10 days
              before a hearing, the law enforcement officer under
              investigation shall be:
                     (i) notified of the name of each witness and of each
                     charge and specification against the law enforcement
                     officer; and
                     (ii) provided with a copy of the investigatory file[19]
                     and any exculpatory information, if the law
                     enforcement officer and the law enforcement officer’s
                     representative agree to:
                       1. execute a confidentiality agreement with the law
                       enforcement agency not to disclose any material
                       contained in the investigatory file and exculpatory
                       information for any purpose other than to defend the
                       law enforcement officer; and
                       2. pay a reasonable charge for the cost of
                       reproducing the material.
                     (2) The law enforcement agency may exclude from
                     the exculpatory information provided to a law
                     enforcement officer under this subsection:
                       (i) the identity of confidential sources;
                       (ii) nonexculpatory information; and

19
    An internal investigation file in the Baltimore City Police Department contains the
complaint statement, a summary and conclusion of the investigation written by the
investigator, statements of the accused officer and all witnesses including police
personnel and civilians, names of all investigating personnel, and all other reports,
photographs, or documents collected in the course of the investigation. Baltimore Police
Department General Order 48-77, Appendix 1 to Annex A at A-1-1 to A-1-3, effective
July 1, 1977, amended July 1, 1983.


                                                23
                      (iii) recommendations as to charges, disposition, or
                      punishment.

Section 3-104(n) (emphasis added). The LEOBR though, does not define “exculpatory

information” or “nonexculpatory information”, nor do other provisions of the Maryland

Code in which the term “exculpatory” is used. 20

      The precursor of Section 3-104(n) was Section 728(b)(5) of Article 27, Maryland

Code (1957, 1971 Repl. Vol., 1974 Supp.), which provided an officer under investigation

with information regarding the “nature of the investigation” and “the names of all

witnesses.” The ambiguity of these provisions led to various proposals for revision by

the General Assembly in 1976 and 1977. See Letter from Roy W. Rafter, Chairman,

Governor’s Commission to Review the Law Enforcement Officers Bill of Rights to Hon.

Steny Hoyer, President of the Senate, and Hon. John Hanson Briscoe, Speaker of the

House (January 7, 1977).

      By 1984, House Bill 916 21 was proposed to provide a police officer under

investigation with a copy of the investigatory file in addition to the names of any


20
    “Exculpatory” also appears in Section 8-201(a)(5)(iii) of the Criminal Procedure
Article, Maryland Code (2001, 2008 Repl. Vol.) (“DNA Evidence—Postconviction
Review”) and Section 10-905 of the Correctional Services Article (1999, 2008 Repl.
Vol.) (“State Correctional Officers’ Bill of Rights”), which was adapted from the Law
Enforcement Officers’ Bill of Rights. See Senate Judicial Proceedings Committee Floor
Report, Senate Bill 887 (2010).
21
   House Bill 916 was cross-filed as Senate Bill 954. Both bills were adopted and House
Bill 916, which contained modified language to exclude from disclosure of “any
information which will not be used in the upcoming hearing,” was signed into law by
Governor Harry Hughes.


                                           24
witnesses and all charges and specifications. 22       While House Bill 916 was under

consideration in the House Judiciary Committee, Bernard D. Crooke, Chief of Police for

the Montgomery County Department of Police, voiced strong opposition to the bill as

worded because it would have required disclosure of information beyond the officer’s

involvement in the specific incident, thereby potentially compromising witnesses’

cooperation and more importantly, “other law enforcement investigations”:



22
     House Bill 916 as initially introduced in the House Judiciary Committee provided:

               FOR the purpose of providing that a law enforcement officer
               under investigation shall be furnished with a copy of the
               investigatory file not less than a certain time before any
               hearing if certain conditions as to confidentiality of the file
               and payment of costs are met.
                                             ***
                      (5) The law-enforcement officer under investigation
               shall be informed in writing of the nature of the investigation
               prior to any interrogation.         Upon completion of the
               investigation, the law-enforcement officer shall be notified of
               the name of any witness and all charges and specifications
               against the officer not less than ten days prior to any hearing.
               IN ADDITION, THE LAW ENFORCEMENT OFFICER
               UNDER INVESTIGATION SHALL BE FURNISHED
               WITH A COPY OF THE INVESTIGATORY FILE NOT
               LESS THAN 10 DAYS BEFORE ANY HEARING IF THE
               OFFICER AND THE OFFICER’S REPRESENTATIVE
               AGREE:
                      (I) TO EXECUTE A CONFIDENTIALITY
               AGREEMENT WITH THE LAW ENFORCEMENT
               AGENCY TO NOT DISCLOSE ANY OF THE MATERIAL
               CONTAINED IN THE RECORD FOR ANY PURPOSE
               OTHER THAN TO DEFEND THE OFFICER; AND
               (II) TO PAY ANY REASONABLE CHARGE FOR THE
               COST OF REPRODUCING THE MATERIAL INVOLVED.


                                             25
                       It cannot be stated too strongly the “chilling effect” a
                wholesale release of the entire file would have on
                investigations into alleged police misconduct.            Citizen
                witnesses and fellow police officers are frequently reluctant
                to speak out in these situations as it is, but we are presently
                able to assure them that their statement will be released only
                if they are called upon to testify at the trial board and then,
                only that portion of their comments which is relevant to this
                charge will be released.
                                               ***
                       Another consideration is that release of the entire file
                could jeopardize other law enforcement investigations.
                Internal affairs officers frequently encounter a situation where
                information on a distinct charge against the same or different
                officers is contained in one statement. Sometimes this
                information is part of charges that have been completed and
                sometimes the investigation is still ongoing. Under the
                proposed amendment, this information would be released as
                well and would very likely compromise the progress of those
                ongoing investigations.

Opposition Statement to House Bill 916 (March 8, 1984) (statement of Bernard Crooke,

Chief of Police for the Montgomery County Department of Police). Significantly, the

final version of the bill excluded disclosure of information within the investigatory file

that was not relevant to the charges for which the officer was under investigation, with

the provision that: “the law enforcement officer under investigation shall be furnished

with a copy of the investigatory file, excluding the identity of confidential sources, any

information which will not be used in the upcoming hearing, and recommendations as

to charges, disposition or punishment”. 23 1984 Maryland Laws, Chapter 660, codified at


23
     House Bill 916, as adopted, provided, in relevant part:

                The law-enforcement officer under investigation shall be
                informed in writing of the nature of the investigation prior to
                                                                              (continued . . .)
                                               26
Section 728(b)(5) of the Maryland Code (1957, 1981 Repl. Vol., 1984 Supp.) (emphasis

added). 24



_____________________________
              any interrogation. Upon completion of the investigation, the
              law-enforcement officer shall be notified of the name of any
              witness and all charges and specifications against the officer
              not less than ten days prior to any hearing. IN ADDITION,
              THE LAW ENFORCEMENT OFFICER UNDER
              INVESTIGATION SHALL BE FURNISHED WITH A
              COPY OF THE INVESTIGATORY FILE, EXCLUDING
              THE IDENTITY OF CONFIDENTIAL SOURCES, ANY
              INFORMATION WHICH WILL NOT BE USED IN THE
              UPCOMING HEARING, AND RECOMMENDATIONS AS
              TO CHARGES, DISPOSITION OR PUNISHMENT, NOT
              LESS THAN 10 DAYS BEFORE ANY HEARING IF THE
              OFFICER AND THE OFFICER’S REPRESENTATIVE
              AGREE:
                     (I) TO EXECUTE A CONFIDENTIALITY
              AGREEMENT WITH THE LAW ENFORCEMENT
              AGENCY TO NOT DISCLOSE ANY OF THE MATERIAL
              CONTAINED IN THE RECORD FOR ANY PURPOSE
              OTHER THAN TO DEFEND THE OFFICER; AND
                     (II) TO PAY ANY REASONABLE CHARGE FOR
              THE COST OF REPRODUCING THE MATERIAL
              INVOLVED.

1984 Md. Laws, Chap. 660, codified at Md. Code (1957, 1981 Repl. Vol., 1984 Supp.),
Art. 27, § 728(b)(5).
24
    In 1985 and 1986 the House Judiciary Committee and Senate Judicial Proceedings
Committee considered additional modifications to the exclusionary language of Section
728(b)(5) to further restrict access. See House Bill 644 and Senate Bill 331 (1985)
(proposing to exclude any “information that is the subject of a valid and separate internal
investigation”); Senate Bill 443 (1986) (proposing to exclude “any information that is the
subject of a valid internal investigation that is unrelated to the charges and specifications
against the officer”); House Bill 1735 (1986) (proposing to exclude “any information that
is the subject of any other pending internal investigation unrelated to the charges and
specifications against the officer”).



                                             27
        In 1987, the Legislature adopted House Bill 704, which set forth the current

disclosure requirements of Section 3-104(n). 25 Initially, House Bill 704 26 provided that

the officer under investigation should be given a copy of the investigatory file excluding

any information that was “the subject of any other pending internal investigation” if that

information was “irrelevant” to the charges for which the officer was investigated. 27 The



25
    The LEOBR was adopted without substantive change and recodified as Section 3-101
et seq., of the Public Safety Article, Maryland Code (2003), when the General Assembly
added the “Public Safety Article”, recodifying certain statutes previously contained in
Articles 41 “Executive and Administrative Departments”), 88B (“Department of State
Police”), and 27 (“Crimes and Punishment”), among others, relating to State fire
prevention, policies of the Department of State Police and emergency maintenance
systems. 2003 Md. Laws, Chap. 5. Section 728(b) of Article 27 was recodified and
adopted without substantive change in 2003, as Section 3-104(n) of the Public Safety
Article, Maryland Code (2003).
26
    The Legislature also simultaneously considered, but rejected, Senate Bill 600, which
excluded from disclosure “any information that is the subject of any other pending
internal investigation which is irrelevant to the charges and specifications against the
officer” in the investigatory file.
27
     House Bill 704 as originally introduced in the House Judiciary Committee provided:

               (5) The law-enforcement officer under investigation shall be
               informed in writing of the nature of the investigation prior to
               any interrogation. Upon completion of the investigation, the
               law-enforcement officer shall be notified of the name of any
               witness and all charges and specifications against the officer
               not less than ten days prior to any hearing. In addition, the
               law-enforcement officer under investigation shall be
               furnished with a copy of the investigatory file, excluding the
               identity of confidential sources, any information . . . THAT IS
               THE SUBJECT OF ANY OTHER PENDING INTERNAL
               INVESTIGATION WHICH IS IRRELEVANT TO THE
               CHARGES AND SPECIFICATIONS AGAINST THE
               OFFICER, and recommendations as to charges, disposition,
                                                                             (continued . . .)
                                              28
Fraternal Order of Police Lodge Numbers 30 and 69 supported the bill in its original

form, while the Maryland Department of Public Safety and Correctional Services

opposed the bill as drafted because it would “put this Agency in a position of revealing

information that may be to the detriment of the officer involved, or other officers that

may be involved or other citizens that might be involved.” Maryland Department of

Public Safety and Correctional Services, Position on Proposed Legislation House Bill 704

(February 13, 1987) (statement of Sergeant Don Hoffman of the Maryland State Police).

Lieutenant Emmit Jones of the Baltimore Police Department also provided written

testimony against the bill, cautioning against disclosure of information related to pending

investigations that could be compromised:

                     It would provide to the accused officer facing a
              Hearing (Trial Board) not only the investigative file involving
              the pending hearing, but any other pending Internal
              Investigation File which is relevant to the charges and
              specifications against the officer. . . .
                     It is conceivable that an officer could be facing a
              Hearing for Excessive Force while he is being investigated
              for possible criminal activity which is relevant to the charge
              of Excessive Force. To be faced with a legal requirement to
              divulge the second investigation prior to completion of the
              Hearing is not only unjustified but would compromise the
              ongoing investigation.
_____________________________
              or punishment, not less than 10 days before any hearing if the
              officer and the officer’s representative agree:
              (i) To execute a confidentiality agreement with the law-
              enforcement agency to not disclose any of the material
              contained in the record for any purpose other than to defend
              the officer; and
              (ii) To pay any reasonable charge for the cost of reproducing
              the material involved.


                                            29
Statement of Lieutenant Emmit Jones of the Baltimore Police Department Regarding

House Bill 704 – Law Enforcement Officers’ Bill of Rights – Investigatory Files – As

Prepared for a Hearing Before the House Judiciary Committee (March 16, 1987).

      The House Judiciary Committee recommended language that specified that the

Department must provide the officer under investigation with the investigatory file and

information that was “exculpatory” but not information that was “nonexculpatory” to the

charges for which the officer was under investigation. House Bill 704 as adopted,

provided:

                 (III) IN ADDITION, THE LAW-ENFORCEMENT
             OFFICER UNDER INVESTIGATION SHALL BE
             FURNISHED WITH A COPY OF THE INVESTIGATORY
             FILE AND ANY EXCULPATORY INFORMATION, BUT
             EXCLUDING:
                 1. THE IDENTITY OF CONFIDENTIAL SOURCES;
                 2. ANY NONEXCULPATORY INFORMATION; AND
                 3. RECOMMENDATIONS AS TO CHARGES,
                     DISPOSITION, OR PUNISHMENT.
                 (IV)       THE      LAW-ENFORCEMENT              OFFICER
             UNDER INVESTIGATION SHALL BE FURNISHED
             WITH A COPY OF THE INVESTIGATORY FILE AND
             THE EXCULPATORY INFORMATION DESCRIBED
             UNDER SUBPARAGRAPH (III) OF THIS PARAGRAPH
             NOT LESS THAN 10 DAYS BEFORE ANY HEARING IF
             THE          OFFICER         AND         THE       OFFICER’S
             REPRESENTATIVE AGREE:
                     1. to execute a confidentiality agreement with the law-
             enforcement agency to not disclose any of the material
             contained in the record for any purpose other than to defend
             the officer; and
                     2. to pay any reasonable charge for the cost of
             reproducing the material involved.




                                           30
Maryland Laws 1987, Chapter 499.          What is significant, then, is the fact that if

exculpatory information were disclosed, it would relate only to the officer investigated

and the specific incident in which the officer had been involved.

       Not only is there absolutely nothing in the text of Section 3-104(n) or its

legislative history to indicate, as Detective Ellsworth suggests, that the General Assembly

considered or intended to use the term “exculpatory” to import Brady and its progeny into

the administrative LEOBR process, but there is nothing to indicate that the Legislature

intended to require state and federal agencies to provide information regarding pending

investigations unrelated to the officer and his or her specific charges. Rather, the history

supports only the conclusion that the Legislature only intended to disclose 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. As a result, we affirm the

judgment of the Court of Special Appeals.

                                                        JUDGMENT OF THE COURT
                                                        OF    SPECIAL   APPEALS
                                                        AFFIRMED. COSTS TO BE
                                                        PAID BY PETITIONER.




                                            31
Circuit Court for Baltimore City
Case No. 24-C-11-005397
Argued: February 10, 2014

                                      IN THE COURT OF APPEALS OF
                                              MARYLAND

                                                        No. 58

                                             September Term, 2013



                                        JOSHUA TRIPP ELLSWORTH

                                                          v.

                                   BALTIMORE POLICE DEPARTMENT


                                           Barbera, C.J.,
                                           Harrell,
                                           Battaglia,
                                           Greene,
                                           Adkins,
                                           McDonald,
                                           Raker, Irma S. (Retired,
                                                          Specially Assigned),

                                                  JJ.



                                       Dissenting Opinion by Harrell, J.,
                                    which Barbera, C.J., and Adkins, J., join.


                                   Filed: April 24, 2014
       I dissent. Although I agree with the Majority opinion’s conclusion that there is no

indication in the legislative history of H.B. 704 of 1987 that suggests explicitly that the

Legislature intended to import broadly Brady and its progeny into the LEOBR by

inclusion of a requirement that a charged officer be given pre-hearing by the department

any exculpatory information (Maj. slip op. at 31), I disagree with the Majority opinion’s

absence of any appreciation that “exculpatory information” should include potential

impeachment information regarding a departmental material witness to the alleged

misconduct. The Majority opinion concludes that “the Legislature only intended to

disclose 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.”

Id. Neither the language of H.B. 704, as enacted, nor the legislative history pointed to by

the Majority opinion (Maj. slip op. at 28-29), supports the Majority’s conclusion.

Moreover, to countenance the police department offering as one of its material witnesses

an officer that, at the time he was called to testify, was suspected by the department of

being a distributor of illegal narcotics, and yet suppress that information, is wrong

manifestly (even in an administrative proceeding).

       Lieutenant Jones’s testimony before the Legislature on H.B. 704 (recounted in

pertinent part by the Majority slip opinion at 29) used as an illustration of what concerned

him about the original bill the example of an ongoing, parallel investigation of the

charged officer that could be compromised by premature revelation. This does not
bolster the Majority opinion’s view that the Legislature was concerned with divulging

impeachment evidence of a departmental witness.

       The legislative testimony of Sergeant Hoffman (Maj. slip op. at 29) was directed

likewise to the unamended version of H.B. 704.           The original bill excluded from

disclosure “any information that is the subject of any other pending investigation which is

irrelevant to the charges and specifications against the officer.” Maj. slip op. at 28 n.26.

Even then, Sergeant Hoffman’s relevant concern about the original language was about

“revealing information that may be to the detriment of . . . other officers that may be

involved . . . .” Maj. slip op. at 29. That also is not the circumstance of the present case.

       Thus, the change made in the proposed legislation, after hearing these testimonies,

should be read in the light of the concerns expressed to the Legislature, none of which

suggested that impeachment information regarding a departmental material witness in the

trial board proceedings of the pertinent charges against Detective Ellsworth should be

deemed excluded as “non-exculpatory information.”

       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. Had Detective Redd been so discredited, the case against Detective

Ellsworth could have come down essentially to a “he said/he said” contest between

Detective Ellsworth and Sergeant Brickus.              With the unsullied “eyewitness”

corroboration by Detective Redd of Sergeant Brickus’s version of what happened on 7

August 2009 at 2727 W. Garrison Avenue in Baltimore, the scales of the weight of the

                                             -2-
evidence tipped in the department’s favor. The proceedings, in my judgment, were

flawed fatally.

       I would hold that § 3-104(n)(1)(ii) of the Public Safety Article of the Maryland

Code means that “exculpatory information” required to be disclosed includes potential

impeachment information, known to the department, regarding a witness the department

intends to call at the trial board proceedings. As that was not done in the present case and

the implicated witness was a material eyewitness, Detective Ellsworth is entitled to a new

trial board hearing. Accordingly, I would reverse the judgment of the Court of Special

Appeals and remand the matter to that Court with directions to affirm the judgment of the

Circuit Court for Baltimore City.

       Chief Judge Barbera and Judge Adkins authorize me to state that they join in the

views expressed in this opinion.




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