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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1980 September Term, 2001 ___________________________________

BRIAN SEWELL

v.

EDWARD T. NORRIS, COMMISSIONER ___________________________________ Murphy, C.J., Thieme, Raymond G., Jr. (Ret'd, specially assigned), Wenner, William W., (Ret'd, specially assigned), JJ. ____________________________________ Opinion by Murphy, C.J. ____________________________________ Filed: November 26, 2002

In the Circuit Court for Baltimore City, Brian Sewell, appellant, an officer in the Baltimore City Police Department (BCPD or Department) charged with departmental violations to be considered by a hearing board, filed a petition in which he requested that the circuit court order that the officers appointed to the hearing board for his case be members of a law enforcement agency other than the BCPD. That request was denied

and this appeal followed, in which a single question is presented for our review: I. WHETHER THE TRIAL COURT WAS LEGALLY CORRECT IN DENYING APPELLANT'S REQUEST FOR A HEARING BOARD COMPRISED OF MEMBERS FROM ANOTHER AGENCY.

For the reasons that follow, we hold that the circuit court erred by denying appellant the relief that he requested. We

shall therefore remand for further proceedings before a hearing board comprised of law enforcement officers who are not members of the BCPD. Background Appellant began his employment with the Department on October 7, 1993. On September 6, 2001, he was charged with five

departmental violations,1 all of which arose out of an incident that occurred on September 4, 2000, while he was on patrol in

The following charges were filed against appellant: misconduct, intentional false statement and/or misrepresentation, violation of state/federal law, failing to perform, and failing to promote good public relations. 1

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Central District and while officers of the BCPD's Internal Affairs Integrity Unit ("IAIU") were conducting a random undercover sting operation.2 The IAIU officers placed what

appeared to be a package of crack cocaine on a bench in a park located on Presstman Street, made calls to the BCPD about the package, and waited to observe the officers who responded. Although the parties dispute what transpired when appellant arrived,3 he was indicted for perjury and misconduct in office. The criminal charges received extensive publicity, including thirty-three newspaper articles that appeared in the Baltimore Sun between October 5, 2000 and September 12, 2001.4 In

The IAIU was created by the Police Commissioner to eliminate "dirty" police officers from the police force. The charges against appellant were among the first to be filed by the IAIU. Appellant's version is as follows. While on patrol, he heard the communications relating to drug activity in the park, and he responded to that location in his patrol vehicle. He observed a suspect in the park who fit the description of the suspect described in the broadcast. The suspect was kneeling near a bench and appeared to be holding a plastic bag. When he saw appellant, the suspect fled. At this point, appellant exited his vehicle and searched for drugs. When another officer found the drugs, appellant informed that officer that he had observed the suspect flee. Appellant later responded to a burglary call in the area, and he arrested the burglary suspect leaving a building. Because appellant recognized the burglary suspect as the person who fled from the area of the park bench, he charged the suspect, Frederick McCoy ("McCoy"), with burglary and possession with intent to distribute a controlled dangerous substance. The Department claims that appellant "planted" the drugs on McCoy, who was never in the park. Prior to the filing of charges against appellant, the Mayor and the Police Commissioner spoke publicly about the incident. An October 5, 2000 Baltimore Sun article quoted the Commissioner as accusing appellant of "a horrible breach of public trust," and saying that since becoming Commissioner in April 2000, he has "heard a lot from the public about false arrests and evidence being planted." The Commissioner also stated that, "If an innocent citizen is arrested and charged with possession of narcotics he did not possess, that's outrageous." The Mayor was quoted in the same article stating, "We said this city needs to do a better job policing 2
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addition, a break-in that occurred at the IAIU's office in December of 2000 generated intensive media speculation that this crime was related to appellant's case. On January 24, 2001, the After

State dismissed all criminal charges against appellant.

the dismissal of appellant's criminal charges, the Commissioner expressed the Department's disappointment with the decision not to prosecute appellant, and an intense political battle ensued between the Mayor and the State's Attorney.5 In its January 25,

our own police." The Mayor publicly lashed out at the State's Attorney for dismissing the criminal charges against appellant. According to the January 26, 2001 edition of the Baltimore Sun, the Mayor made the following comments: "I think the failing in these cases is to not go forward, and I'll be goddamned if we're going to stop doing integrity cases and doing stings just because we have a prosecutor who's afraid to go forward and try them," said [the Mayor], who has been critical of [the State's Attorney] in the past. "Maybe we'll find a prosecutor with a little bit of guts to go forward," he said. "I talked to her before she dropped this case . . . begged her, pleaded with her and tried to persuade her to go forward with this case. She said, `No, too many red herrings.' I think the poor woman must have been attacked by red herrings when she was a child. She sees red herrings everywhere. [The Mayor] said he and the Police Department are considering finding a way to prosecute integrity cases without [the State's Attorney], if possible. He also noted that Sewell has to appear before a departmental trial board. "He's not going to serve in my Police Department," O'Malley said. (Emphasis added). 3
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2001 edition, the Baltimore Sun reported that the Commissioner had "held a news conference the day Sewell was arrested, Oct. 4, using the case to prove he was serious about targeting corruption." This article reprinted the Commissioner's previous

characterization of appellant's alleged misconduct as "a horrible breach of the public trust," and quoted the Commissioner as stating that, "We are extremely disappointed in the State's Attorney's decision not to move forward with his [appellant's] case, but defer to their judgment in doing so," [and that the decision to drop the criminal case] "will certainly not deter the efforts of the . . . Department in its commitment to root out corrupt police officers and to restore the integrity of the agency." On October 17, 2001, appellant's attorney sent a letter to the Department's Chief Legal Advisor, citing the public comments made by the Commissioner and the Mayor, and requesting that the officers who would serve on appellant's hearing board be selected from another law enforcement agency. On October 23, 2001, the

Chief Legal Officer denied that request. Judicial Proceedings On October 29, 2001, appellant filed with the circuit court a Petition to Show Cause, requesting that the circuit court order that the members of the hearing board in appellant's case be selected from another law enforcement agency. The petition

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asserted that appellant would not be able to have a fair hearing because of the public comments made by the Mayor and the Commissioner. During the hearing on that petition, appellant's

attorney stated: What I'm concerned about is when you have a threemember panel made up from the members of the . . . Department ranking from major, lieutenant and someone of equal rank, which would be a police agent, when their boss and his boss have already come out and said he's guilty, I don't believe he can get a fair trial. * * * Whether intentionally or unintentionally these members have been with the police department, would like to get promoted within their police department, would like to get positions they would enjoy within their police department. The circuit court responded by stating: I understand your point. Let's assume that the wiser course might be for the commissioner to exercise his discretion in the fashion you seek. What

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