This is the first part of a series by the Capital News Service about how plea deals punish the innocent in a Baltimore police scandal. The investigation by Capital News Service and Injustice Watch was completed as part of a nationwide examination of plea bargaining.
By Angela Roberts, Lindsay Huth, Alex Mann, Tom Hart and James Whitlow
Capital News Service
Omar Burley and his cousin were parked in an old, black Acura on a residential side street in northwest Baltimore, when two cars pulled up next to them. Three men with guns jumped out.
Fearing a robbery, Burley hit the gas. His assailants gave chase.
“I was speeding for my life,” he recalled.
As he raced away, he crashed into a car carrying an elderly couple. The force of the impact pushed their vehicle into the porch of a house. The driver, Elbert Davis, died later that day. His wife suffered serious injuries.
The gunmen turned out to be Baltimore police officers. Their arrest report said Burley, then 39, had been parked in a “meet location for distribution of drugs” and fled when they displayed their badges. They wrote that they recovered 32 grams of heroin from his car after the crash. He was charged with manslaughter and possession with intent to distribute heroin, a felony.
Burley insisted they were lying. He said he had no clue the gunmen were police and he had no drugs in his car.
For more than a year, he fervently maintained his innocence while he waited in jail for trial — until the prosecutor offered him a plea deal and a warning.
Plead guilty and serve 15 years. If not, she would seek the maximum sentence if he lost at trial. With that amount of heroin, a prior drug conviction and the fatality, he was looking at 30 years or more in prison.
Burley pondered the odds a jury would believe him over the police.
“I’d never see the light of day,” he said. “Or I would be coming home a very old man.”
He pleaded guilty.
That was 2011.
While Burley sat in prison over the next six years, his girlfriend died, his father fell seriously ill, his daughter gave birth to his three grandchildren.
Not until 2017 did a federal investigation reveal that eight officers from the police department’s elite Gun Trace Task Force had for years been robbing people, planting guns and drugs on them and lying on arrest reports to cover up their crimes.
Most of their victims pleaded guilty. It turns out that many, including Burley, were not.
All eight have since been convicted. But they had a powerful accomplice yet to be held accountable: the criminal court system that convicted their victims.
Analysis: plea deals enabled police corruption
An investigation by Capital News Service and Injustice Watch, as part of a nationwide examination of plea bargaining, found that Baltimore’s heavy reliance on plea deals and pre-trial detention led innocent defendants to plead guilty and enabled police corruption.
Over the years, repeated accounts by defendants of police abuse were hidden behind plea deals that, negotiated in private, assured neither the allegations nor evidence would get the public or legal scrutiny that occurs in a trial.
Baltimore City State’s Attorney Marilyn Mosby has acknowledged that thousands of cases may have been tainted because they hung heavily or solely on the word of the disgraced officers.
Her office is working with defense attorneys and judges to identify those cases, drop pending charges or — if too late — void the convictions. The final step, expungement, erases the case from the public record. But it can’t turn back the clock. Many defendants already served most or all of their sentences.
“I wasn’t allowed to go to trial to bring out certain things that could’ve maybe prevented this,” said Burley.“Maybe the actions of those cops wouldn’t have continued to happen.”
He was among the first 105 defendants whose convictions had been voided as of mid-April. A CNS analysis of court data found that all but four involved guilty pleas. Nearly all, including Burley, were black men. More than half pleaded guilty while awaiting trial in jail, often for months.
Not all defendants were innocent. Rather, the state can no longer maintain their guilt. And because plea deals often occur before evidence-gathering for trial begins, the numbers of truly innocent defendants may never be known.
The analysis was based on a list of vacated cases that CNS obtained from the state’s attorney’s office, additional cases identified during court hearings and a court database maintained by the Maryland Volunteer Lawyers Service. Most involved gun or drug charges. In addition to the voided convictions, charges had been dropped in at least 48 pending cases.
“When you have a system where a very small percentage of cases are actually tried and subjected to the adversarial process, it is much less likely that this kind of [police] conduct is going to be detected and exposed,” said Michele Nethercott, director of the University of Baltimore’s Innocence Project Clinic. “Everyone can hide their mistakes.”
Happening in other cities
Such wholesale miscarriages of justice aren’t unique to Baltimore.
Just since 2010, police corruption scandals have led to more than 1,100 voided convictions in Philadelphia, 200 in Camden, New Jersey, and more than 20 in Chicago. All but a handful involved guilty pleas.
The wrongful conviction of people who plead guilty due to police misconduct “is a disturbingly common feature of the criminal justice system,” said Russell Covey, law professor at Georgia State University, in a 2013 study of mass exonerations.
In a common scenario, the charges are based almost exclusively on the police officer’s eye-witness testimony about finding drugs or guns on the suspect, he said. That’s a losing scenario at trial for a defendant. Guilty or innocent, the logical choice is a plea deal that offers less prison time.
Yet the public perception is that people don’t plead guilty unless they are. Even the innocence projects, which specialize in exonerating wrongfully convicted defendants, rarely accept guilty plea cases. They are exceedingly difficult to win.
About 94 percent of criminal convictions in state courts nationwide are the result of guilty pleas, according to data compiled by the federal Bureau of Justice Statistics. In federal courts, guilty pleas make up 97 percent of all convictions.
If only a small share of those are innocent, Covey argues, their numbers are significant.
Many guilty pleas are the result of plea bargaining. Done right, plea deals provide quicker resolution for guilty defendants and relieve overburdened courtrooms of costly, time-consuming trials. In typical cases, prosecutors induce defendants to admit guilt in exchange for dropping the most serious charges or reducing the sentence far below what it might be if they go to trial and lose.
But the choice frequently is based on a flawed foundation, Nethercott argues — that the police officer’s account of what happened is true.
“The police report describes the witness said this, the witness said that, this is what the scene looked like. No one is testing the veracity of that,” she said. “We’re adjudicating on basis of police reports…That’s completely at odds with an adversarial system where you test the evidence through questioning on the witness stand.”
Michael Schatzow, chief deputy state’s attorney, said cases that rely on police are getting stepped up scrutiny in his office. Prosecutors have been instructed to check internal affairs files of arresting officers to assess their credibility and to share the records with defense attorneys, he said.
“I think we are asking more questions now,” he said. “We are making sure more questions are asked in each case.”
“Something had been put in the car”
Sgt. Wayne Jenkins’ name appears as an arresting officer on 82 of the voided Baltimore cases, the CNS analysis found. He became the sixth member of the Gun Trace Task Force to plead guilty over the past year and faces a sentence of 20 to 30 years in prison.
The task force was created a decade ago to crack down on illegal firearms. Jenkins joined the unit in 2016 as officer-in-charge. But he began operating outside the law long before.
Hired in 2003, he rose to detective and later to sergeant, and supervised a unit that targeted violent offenders, gangs and gun crimes for nearly three years.
The litany of crimes he committed date back at least eight years and take up 12 pages in his plea agreement. He admitted to stealing hundreds of thousands of dollars in cash, drugs and property and submitting false police reports and phony overtime hours.
His admissions include a 2016 traffic stop, in which he and three other officers obtained the driver’s address from his license, confiscated his house key and went to his home, where they stole $200,000, a $4,000 watch and two kilograms of cocaine. He broke into another home and stole seven luxury watches worth more than $170,000.
Some robberies seemed penny-ante in comparison. He and two other officers stole $1,500 to $2,000 from a taxicab. Following the death of Freddie Gray, who was fatally injured while in police custody in 2015, he confronted someone looting a pharmacy — and stole the prescription drugs in their possession to sell on the black market.
Jenkins’ 2010 encounter with Burley and Brent Matthews, then 36, was among his earliest confessed crimes.
After the crash, Jenkins arranged for the heroin to be placed in Burley’s car, then he wrote the statement of probable cause used to charge the two men with felony distribution.
After taking the two men into custody, Jenkins listened to recordings of their calls from jail as they told loved ones that the heroin had been planted. He relayed his concerns to another officer who had been at the scene. Jenkins said he could not testify if the case went to trial because “something had been put in the car.”
He did not have to worry. Both Burley and Matthews would choose to reach plea agreements, rather than face sentences of 30 or more years, or 20 years, respectively.
“I knew I didn’t have no drugs, and I knew that I was running for my dear life. So I thought that should be known in court,” said Burley. “But it never seen the light of day.”
Capital News Service reporters Bryan Gallion, Laura Spitalniak, Carolina Velloso and Maria Herd and editor Deborah Nelson also contributed to these articles.