Police Protections Don't Account For Baltimore Officials' Silence

Under Maryland's Law Enforcement Officers' Bill of Rights, police officers have 10 days not to cooperate with their department's own internal investigation into their possible misconduct. The stated reason for that 10-day window is to allow officers to secure a lawyer. After that 10 day period, officers have to cooperate with their department's inquiry or face possible firing. Whatever testimony they provide, however, cannot be used against them in a criminal trial, if that testimony was given under threat of punishment, including firing.

An officer's testimony obtained under threat of firing could not be used against him at trial, under Supreme Court precedents, even without a L.E.O.B.R. But he would not otherwise have a 10-day window (or other period) of non-cooperation.

Additionally, the Maryland L.E.O.B.R. imposes rules on how a police department can interrogate an officer: Only one interrogator can be present at a time, for example, and the interrogation should usually take place during an officer's work day and allow for bathroom breaks and “reasonable” rest periods.

In New York, before the introduction of the local version of the officers bill of rights (which provides for a 48-hour window of non-cooperation), internal affairs investigators would snatch officers from their posts and grill them for as long as they saw fit without the benefit of counsel. At present, the New York district attorneys usually ask the New York Police Department investigators not to interrogate officers until the attorneys have completed their own investigation, even when the police authorities have the right to do so, to avoid having to exclude the officers' testimony to police department investigators at trial.

According to press reports, as of April 23, five of the six officers involved in the Freddie Gray case had given statements to the Baltimore Police Department. One still had not. By now, the 10-day window of non-cooperation under the Maryland L.E.O.B.R. has ended. The Baltimore Police Department's failure to provide the public with information about its investigation cannot be chalked up to the L.E.O.B.R., at this point. Presumably, the department is proceeding cautiously to ensure that its public account is sound. But the continuing vacuum of information regarding what happened in the police van that transported Gray is a major and understandable source of suspicion towards the police.

While there might have been grounds for providing some protections for officers against coercive interrogations by internal affairs officers before the due process movement for cops, a 10-day window of immunity from questioning is clearly excessive. It creates the appearance, if not the reality, of officers' colluding to tailor their stories to exculpate themselves. Crucial evidence may be lost. No officer needs 10 days to hire an attorney, even if he does not have a union representing him. Eliminating a statutory immunity provision, however, may not make a large amount of difference, since local district attorneys would still want to avoid having to discard evidence that officers provided under compulsion to their supervisors.

This piece originally appeared in The New York Times

This piece originally appeared in The New York Times