IN THE CIRCUIT COURT FOR BALTIMORE CITY, MARYLAND

JOSHUA TRIPP ELLSWORTH,

Petitioner CIVIL ACTION

v. No.: 24-C-11-005397/AA t...1

POLICE COMMISSIONER FREDERICK H. BEALEFELD, III,

Respondent --o

* * * * *Th 19

PETITIONER'S MEMORANDUM OF LAW IN SUPPORT OF PETITION FOR JUDICIAL REVIEW

Introduction & History of the Case

Joshua Tripp Ellsworth, the Petitioner, began his employment with the Baltimore Police

Department on or about July 17, 2003. Following a probationary period, Ellsworth was a non-

probationary employee of the Baltimore Police Department. At all times pertinent to this appeal,

Ellsworth was a detective assigned to the Criminal Investigation Bureau, Homicide Section. At

all times pertinent to this appeal, the appointed Police Commissioner for the Baltimore Police

Department was Frederick H. Bealefeld, III.

Baltimore City Police Officers are subject to the protection of the Maryland Law

Enforcement Officers' Bill of Rights. Md. Ann. Code Public Safety § 3-101 et seq. (hereinafter

LEOBOR).

On August 7, 2009, Major Terrance McLamey assigned Detective Joshua Ellsworth to

investigate a kidnapping that had just occurred. Much of what followed thereafter represents a

failure of policy within the Baltimore Police Department. Essentially — as will be shown —

Ellsworth became a pawn between competing supervisors (and egos) within the Baltimore Police

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Department. At all times, Detective Ellsworth perceived his legal duty, official mission, and

professional responsibility to be that of apprehending the kidnapper and saving the life of the

kidnap victim. For reasons that ought to embarrass the Police Commissioner, others in the

Baltimore Police Department became embroiled in petty administrative disputes which

culminated in the detention (and likely arrest) of Detective Ellsworth.

Whatever else is true, on August 7, 2009, while investigating a kidnapping, Ellsworth's

police powers were suspended sua sponte by Baltimore Police Sergeant Jonathan Brickus.

Within a few minutes, Lt. Dameon Carter and/or Police Major Terrance McLarney restored

Ellsworth's police powers. Sergeant Brickus declined to return Ellsworth's gun, and so for a

short time Ellsworth continued his investigation and attempted apprehension of a kidnapper

without a firearm.

At the conclusion of the shift, Ellsworth was asked to refrain from complaining about the

false arrest made of him by Sergeant Brickus, and requested to be a team player. Ellsworth

acquiesced. On his part, Sergeant Brickus filed a complaint against Detective Ellsworth with the

Internal Investigation Division of the Baltimore Police Department.

On August 17, 2009, Ellsworth was served with a "Notification to Accused of

Complaint." The complaint — IID Disciplinary Control Number 09-1458 — alleged that on

August 7, 2009, Ellsworth failed to obey an order given to him by a superior, Sergeant Jonathan

Brickus.

On September 23, 2009, Ellsworth submitted to an interrogation pursuant to the

LEOBOR. Attorney Clarke F. Ahlers (counsel on this brief) represented Ellsworth during the

interrogation.

On June 2, 2010, Nathan A. Warfield, Director of the Internal Investigation Division,

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notified Ellsworth that the IID investigation concluded that the complaint was sustained)

Ellsworth was served with seven violations of four (administrative) Rules and Regulations for

the government of the Police Department of Baltimore City. The rules involve: (1) conduct

unbecoming an officer; (2) willful disobedience of lawful command or order; (3) unethical

conduct; and (4) insubordination / disrespect to superior officer.

As a practical matter, only two of the administrative charges are germane to the issues to

be decided by this Honorable Court:

CHARGE 1

Violation of General Order C-2, Rule 1, Section Conduct

Any breach of the peace, neglect of duty, misconduct or any conduct on the part of any member of the department, either within or without the City of Baltimore, which tends to undermine the good order, efficiency or discipline of the department, or which reflects discredit upon the department or any member thereof, or which is prejudicial to the efficiency and discipline of the department, even though these offenses may not be specifically enumerated or laid down, shall be considered conduct unbecoming a member of the Baltimore Police Department, and subject to disciplinary action by the Police Commissioner.

Specification 3:

For that, on or about August 7, 2009, Detective Joshua Ellsworth reflected discredit upon himself and the Department, when, while on the scene of a possible domestic abduction, Detective Ellsworth entered into a verbal confrontation with Sergeant Jonathan Brickus, a permanent ranking supervisor, while in plain view of numerous law enforcement members and the general public, thereby, conducting himself in a manner unbecoming a member of the Baltimore Police Department.

CHARGE 4:

Violation of General Order C-2, Rule 1, Section 13

1 It is important to the complete understanding of this case that the name Nathan Warfield not be overlooked. As will be shown, Major Warfield was relieved of his command because of his association with a witness against Ellsworth in this case.

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

Specification:

For that, on or about August 7, 2009, Detective Joshua Ellsworth, a detective within the Homicide Section behaved in an insubordinate and/or disrespectful manner when he entered into a verbal confrontation with Sergeant Jonathan Brickus a permanent ranking member of the Northwestern District, while at the scene of a possible domestic abduction at the dwelling of 2727 W. Garrison Avenue, in plain view of numerous law enforcement members and the general public.

Following the presentation of charges, Ellsworth declined the Charging Committee's

recommended punishment of termination and elected a Trial Board pursuant to the LEOBOR.

The Respondent, Police Commissioner Frederick H. Bealefeld, III, appointed the Trial Board.

The three members of the Trial Board were Deputy Major Marc Partee, Lieutenant Jon Foster,

and Police Officer Meng-Ching Liu, all of the Baltimore Police Department. Ellsworth did not

challenge the appointment of any of the board members. Clarke F. Ahlers represented Ellsworth.

Mr. Paulos Iyob represented the Baltimore Police Department.

On June 9, 2010, defense counsel moved for discovery. Discovery was mailed to defense

counsel on or about August 23, 2010.

On or about March 29, 2011, Detective Ellsworth was suspended because of the

administrative charges. (Ironically, he was lead investigator on a number of murder cases from

the time of the original incident to his suspension on March 29, 2011.) On March 30, 2011,

Ellsworth's powers were restored. The Petitioner can offer nothing about why this exceptionally

delayed suspension occurred, except to say that dysfunction is typical within the arcane

bureaucracy of the Baltimore Police Department.

A three-day Trial Board commenced on May 17, 2011 at the Baltimore City Police

Department Headquarters Building. Petitioner's counsel is advised that a copy of the transcript

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has been filed with the Circuit Court for Baltimore City. 2

On Thursday, May 19, 2011, the Board orally gave its decision, finding in pertinent part

that the accused member was guilty of Charge 1, Specification 3 (conduct unbecoming) and

Charge 4 (disrespect—but not insubordination).

The Trial Board recommended a punishment for both charges of a "Severe Letter of

Reprimand, Seven Days Loss of Leave, (and a) Transfer from Homicide Section if the

Commanding Officer of the Homicide Section wishes to do so." 3

The Police Commissioner imposed the punishment by Final Order of the Police

Commissioner issued as Personnel Order 538-11 dated July 19, 2011. It was mailed to

Petitioner's counsel in an envelope dated July 28, 2011.

Ellsworth noted an appeal of this decision to the Circuit Court for Baltimore City on

August 18, 2011.

Scope of Review

In an appeal from the final decision of an administrative agency, the Judiciary's role is

"limited to determining if there is substantial evidence in the record as a whole to support the

agency's findings and conclusions, and to determine if the administrative decision is premised

upon an erroneous conclusion of law." United Parcel Service, Inv. v. People's Counsel, 336 Md.

569, 577 (1994).

2 The transcript is captioned Trial Board Hearing of Detective Joshua Ellsworth, III) No. 09-1459. (Petitioner's counsel has no idea why the paperwork served upon Detective Ellsworth is captioned No.: 09-1458 and the hearing board is captioned 09-1459, but notes that the information clearly refers to the same dispute. In any event, the transcript pagination begins anew each day. Accordingly, the transcript is cited herein as "Tr. Date, p. ."

3 There are minor discrepancies in the various forms concerning the punishment. The Commanding Officer of the Homicide Section, Major Terrance McLamey, was a defense witness and had no interest in transferring Ellsworth from the Homicide Section. McLarney's integrity was rewarded with demotion and transfer by Police Commissioner Frederick H. Bealefeld, III. McLarney — a decorated police veteran previously shot in the line of duty and the longtime commander of the Homicide Section -- is now a Lieutenant in Patrol working midnight shift.

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When a reviewing court applies the substantial evidence test, it decides, "whether a

reasoning mind reasonably could have reached the factual conclusion the agency reached." Bd.

Of Physician Quality Assurance v. Banks, 354 Md. 59, 68 (1999) (internal quotations omitted).

The agency's decision must be reviewed in the light most favorable to it; because it is the

agency's province to resolve conflicting evidence and draw inferences from that evidence, its

decision carries a presumption of correctness and validity. Id.

The reviewing court is also charged to reverse or modify the decision of the agency or

remand the matter for further proceedings, or reverse or modify the decision if any substantial

right of the petitioner has been prejudiced because a fmding, conclusion, or decision i) is

unconstitutional; ii) exceeds the statutory authority or jurisdiction of the final decision maker; iii)

results from an unlawful procedure; iv) is affected by any other error of law; v) is unsupported

by competent, material, and substantial evidence in light of the entire record as submitted; or vi)

is arbitrary or capricious. Maryland State Dep't of Educ. v. Shoop, 119 Md. App. 181 (1998).

See also Maryland Code § 10-222 of the State Government Article.

Questions Presented for Review

I. Did the Baltimore Police Department deny the Petitioner exculpatory evidence in violation of the Law Enforcement Officers' Bill of Rights, codified at Md. Ann. Code Public Safety § 3-104(n)(1).

II. Was the Petitioner denied due process of law when the Petitioner was effectively barred from effective cross-examination of critical fact witnesses by the Department's denial of exculpatory evidence?

III. Was the Trial Board's guilty verdict in Count 1, Specification III — conduct unbecoming an officer — an error of law, unsupported by competent, material, and substantial evidence, and otherwise arbitrary and capricious?

IV. Was the Trial Board's guilty verdict in Count 4 — disrespect to superior officer --supported by competent, material, and substantial evidence, and otherwise not arbitrary and capricious?

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Statement of Facts and Argument

The overarching facts and arguments that support Ellsworth's appeal are these. A

kidnapping was reported to the Baltimore Police Department. Ellsworth, a homicide detective,

was assigned to investigate the crime.

The case began at the scene of the kidnapping. It moved to W. Garrison Avenue when a

suspect was developed. (The conduct at issue occurred at or near W. Garrison Avenue; some

witnesses refer to this as the "second scene.")

As a matter of policy and procedure, Ellsworth had command of the crime scene and

follow-up investigation scenes. Ellsworth was acting on the order of Major McLarney, who

testified that Ellsworth had the assignment, duty, and authority to do exactly what he did.

Sergeant Brickus — the Patrol supervisor -- took umbrage at the idea that a Detective had

authority at a crime scene or follow-up location. Brickus — not having the investigative expertise

of Ellsworth — failed to appreciate that time was of the essence. When Ellsworth acted consistent

with his judgment, training, experience and authority, Brickus reacted immaturely.

Sergeant Brickus arrested Ellsworth for allegedly refusing to obey the lawful order of a

police officer. The "arrest" was interrupted by others, whose judgment was not as impaired as

that of Brickus. Thereafter, Brickus filed a petty grievance against Ellsworth with the Internal

Investigation Division. The complaint was investigated at the direction of Major Nathan

Warfield, Commander of the Internal Investigation Division.

Like everything associated with the Baltimore Police Department, the simple becomes

complex and the patent becomes obtuse. An investigation was launched into the conduct of

Ellsworth relying in large part upon the allegedly neutral observation of (former) Police

Detective Daniel Redd.

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At the same time, Police Detective Daniel Redd was of interest to federal law

enforcement agencies. The FBI contacted Ellsworth prior to his internal affairs interrogation, and

the DEA contacted Ellsworth after his interrogation. As will be seen, investigators and the

Baltimore City Police Commissioner eventually drew a connection between Detective Daniel

Redd and Major Nathan Waffleld.

Given the express interest of federal law enforcement authorities into the witness against

Ellsworth, Petitioner's counsel was particularly interested in exculpatory evidence related to

Daniel Redd. Counsel filed a request under the Maryland Law Enforcement Officers' Bill of

Rights for that exculpatory evidence. First, the Baltimore Police Department provided no

exculpatory evidence about Redd. Then, during the Trial Board, the Department denied that it

knew of any exculpatory or impeachment evidence related to Detective Daniel Redd. This is

simply untrue.

Redd testified against Ellsworth on May 17, 2011. On July 19, 2011 — 63 days after

Detective Redd testified against Ellsworth — the FBI arrested Detective Redd and charged him

with being a major heroin distributor in Baltimore. On August 16, 2011, the Police

Commissioner appeared on the "Marc Steiner (radio) Show" and answered questions from

callers. As reported in the Baltimore Sun, the Police Commissioner stressed that the investigation

against Redd began with Baltimore City Police Detectives and that he — the Police Commissioner

— brought in the FBI. As the Redd corruption story unfolded, the Police Commissioner relieved

Major Warfield of his command of IID when Baltimore Sun reporters published a story that the

two were friends, with Redd posting a picture of Redd and Warfield on his Facebook page.

Obviously, Major Warfield — the charging officer and Commander of IID — failed to disclose that

one of the witnesses against Ellsworth was a corrupt police officer and close personal friend.

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Presumably, even the Police Commissioner's handpicked Trial Board could not overlook

the bad act of a police officer distributing heroin in uniform from a police station as

impeachment evidence. For this reason, such information was intentionally withheld from

Ellsworth and his counsel.

The Hearing Board accepted Detective Redd's testimony. The Trial Board summarized

Redd's testimony as though he were a legitimate police detective and not a drug dealer with a

badge and made findings of fact congruent with his testimony. Moreover the Hearing Board

rejected the testimony of Major McLarney.

The case was a fix and a sham. The heroin-distribution wing of the Baltimore Police

Department overpowered the legitimate criminal investigation wing of the police department,

convicting Ellsworth and ultimately demoting Major McLarney. The so-called "competent,

material and substantial evidence" set forth in this case came — in substantial part — from a

known heroin distributor (Redd).

The prosecution in this case was aggressive and — in the opinion of Petitioner's lawyer —

unnecessarily obstructionist. More than that though, it was absolutely unethical. The prosecutor

withheld material evidence that impeached the investigation itself, and the allegedly neutral

witness: Detective Daniel Redd.

I. The Baltimore Police Department denied the Petitioner exculpatory evidence in violation of the Law Enforcement Officers' Bill of Rights, codified at Md. Ann. Code Public Safety § 3-104(n)(1).

On July 9, 2010, defense counsel filed a specific request for exculpatory evidence with

the Office of Legal Affairs. (Appended as Exhibit 1). The request defines exculpatory evidence

and makes clear that the duty to provide it is continuing in nature. As is its practice, the Office of

Legal Affairs does not answer discovery; the office simply mails defense counsel a copy of the

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"investigation book." The discovery included no exculpatory evidence concerning Detective

Redd.

If the Baltimore Police Department knew that Detective Redd was engaged in a series of

felony crimes — distributing heroin and conspiracy to violate narcotics law of the United States

and the State of Maryland — the Department was required to disclose this information before

using Redd as a witness against Ellsworth. Brady v. Maryland, 373 U.S. 83 (1963); Giglio v.

United States, 405 U.S. 150 (1972); State v. Giddens, 335 Md. 205 (1994).

No reasonable person could believe that the knowledge of Redd's felonious misconduct

was unknown to the Baltimore Police Department. 4 Redd was arrested shortly after the trial.

Redd's indictment includes bad acts that predate the trial. An affidavit was filed in support of a

search and seizure warrant. The affidavit alleges that on March 31, 2011, Redd, while in full

police uniform, provided heroin to a co-conspirator named Zakaria on the parking lot of the

Northwest District Police Station. Forty-seven days before calling Redd as a witness against

Ellsworth, the Police Department was participating in an investigation which witnessed Redd

distribute heroin on a police department parking lot. Incredible, but true.

Of course, no one told Ellsworth or his lawyers.

A second critical witness was Police Sergeant Jonathan Brickus. Sergeant Brickus was

also charged with misconduct in this case. Tr. 5/18/11, p. 88. Sgt. Brickus worked out a deal with

the prosecutor. Id. Defense counsel sought to learn what "deal" had been struck with the witness.

Tr. 5/18/11, p. 91. The prosecutor's objection was sustained. Id.

A third example of denial of exculpatory evidence is the favorable evidence that would

have been available from Sergeant Jackson. Sgt. Brickus testified during his direct examination

Petitioner's Counsel shall file a motion with the Circuit Court to expand the record to prove Redd's indictment, as well as evidence that the Baltimore City Police Department was well aware of bad acts by Redd that constituted exculpatory evidence that was required to be disclosed by operation of law.

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that following his behavior towards Ellsworth, "Sergeant Jackson ... came to me and spent

probably five minutes telling me how wrong I was, we don't need this in the public eye, you're

wrong, you're wrong, you're wrong." Tr. 5/18/11, p. 36. Defense counsel moved for production

of this exculpatory evidence. Id. The prosecutor misled the Trial Board into a belief that since the

Petitioner had been given Sergeant Jackson's statement, the Petitioner was not entitled to the

evidence from Brickus that another Sergeant on the scene spent five minutes criticizing Brickus

for his misconduct. Tr. 5/18/11, p. 37.

The Trial Board, made up of non-lawyers, sustained Petitioner's counsel's request for

exculpatory evidence as though it was an objection, and struck the exculpatory evidence from the

record. Tr. 5/18/11, p. 38. After some petty procedural wrangling, the Trial Board reasoned that

the prosecutor didn't have this exculpatory evidence to give to the defense. Tr. 5/18/11, 43.

Petitioner's counsel asked the prosecutor to state for the record that the first time the prosecutor

learned of the exculpatory evidence was during the testimony of the witness. Tr. 5/18/11, p. 44.

The prosecutor declined to say when he learned of the exculpatory evidence. Id. The Trial Board

took a break and consulted with its lawyer. Tr. 5/18/11, p. 44. The Trial Board implicitly found

that the Petitioner was denied exculpatory evidence but "find no grounds that this was done ...

on purpose." Id. (This is an example of the "arbitrary and capricious" nature of this case; a Trial

Board found inadvertent denial of exculpatory evidence when a prosecutor refused to disclose

when he learned of the exculpatory evidence.)

II. The Petitioner was denied due process of law when the Petitioner was effectively barred from effective cross-examination of critical fact witnesses by the Department's denial of exculpatory evidence.

Detective Redd was called as a prosecution witness on the first day of the Trial Board. Tr.

5/17/11, p. 151. A critical fact was that Redd testified that Ellsworth said he was not handling the

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incident. Tr. 5/17/11, p. 156. (Obviously, the entire defense falls if Ellsworth was not a homicide

detective investigating a kidnapping.) Redd told the Trial Board that the scene belonged to

Sergeant Brickus in patrol because homicide was not handling the incident. Tr. 5/17/11, p. 157.

Redd described the conversation between Brickus and Ellsworth. Tr. 5/17/11, p. 161. Redd

opined that Ellsworth's conduct was inappropriate and intimated that Ellsworth failed to follow a

lawful order. Tr. 5/17/11, p. 170.

On cross-examination, Petitioner's counsel inquired about the reason that Redd was no

longer a detective. Tr. 5/17/11, p. 170. Thereafter, the prosecutor began a pattern of disrupting

the cross-examination with speaking objections, sometimes speaking for a period of time that is

longer than a transcription page. See for example, Tr. 5/17/11, p. 171. Petitioner's counsel

indicated that he wished to ask the witness about specific felonies and federal crimes that the

witness had committed. Tr. 5/17/11, p. 176. What counsel now knows with metaphysical

certainty is that the Police Department was aware of these crimes and did not share the

information with defense counsel.

Petitioner's counsel moved for production of the prior bad act evidence involving Redd.

Tr. 5/17/11, p. 177. Counsel asked the witness if he had distributed drugs since he was 18 years

of age. Tr. 5/17/11, p. 189. The witness answered "no."Id.

At this time, the prosecutor was duty bound to disclose that the witness was lying under

oath as the prosecutor knew — or should have known — that the witness was a drug dealer

previously observed distributing heroin on a Baltimore City Police Department parking lot just

47 days before his testimony. In a Freudian manner, the prosecutor tipped his hand. By his

objection and legal argument, the prosecutor proved that he knew of the misconduct of Redd as

yet uncharged. This is proven by the prosecutor's objections and legal argument insistent that

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only Redd's convictions could be used for impeachment. Tr. 5/17/11, p. 189. This is legal

nonsense of course. Redd's prior bad acts may be the source of impeachment even according to

the rules for hearing boards in Baltimore City. Tr. 5/17/11, p. 181. And the prosecutor's

arguments to the contrary support the inference that the prosecutor knew full well about Redd's

criminal misconduct not yet resulting in charge or conviction.

Redd factors in another way in this case. The charges were brought against the accused

officer by a Major who was relieved of the command of HD because of his close, personal

relationship with a criminal. The impeachable conduct of the witness was not disclosed as

required by law and the entirety of the process is suspect because of the relationship between the

charging officer and the witness. As will be shown in the following sections, this overarching

problem permeated the hearing board process and infected the decision of the hearing board.

Regarding Sergeant Brickus, the cross-examination was stymied by a refusal to provide

information regarding the deal that Brickus cut with prosecutors. Tr. 5/18/11, pp. 88-91. The

cross-examination was less effective because counsel was unprepared to exploit the exculpatory

evidence that another Police Sergeant — witnessing the events — criticized the complainant for

five minutes because it was the complainant's conduct that the Sergeant found disreputable. Tr.

5/18/11, pp 38-44.

III. The Trial Board's guilty verdict in Count 1, Specification III — conduct unbecoming an officer — is an error of law, and was not supported by competent, material, and substantial evidence and was otherwise arbitrary and capricious.

The Trial Board erred in its application of the Rules and Regulations of the Baltimore

Police Department. Also, competent, material and substantial evidence in this case

overwhelmingly proved that Ellsworth was not guilty of the violations charged. Any finding that

contradicted the overwhelming evidence of innocence is by definition arbitrary and capricious.

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A brief overview may be helpful to the Court. At a factual level, this case represents a

petty conflict between personalities and egos. It begins with the problem of overlapping

authority, titles and ranks. The rank structure of the Baltimore Police Department is Police

Officer, Sergeant, Lieutenant, Major and Police Commissioner. The word "Detective" is a title,

not a rank. Tr. 5/18/11, p. 197. A simple "Detective" is the rank equivalent of police officer.

Some members are Detective Sergeants, Detective Lieutenants and so on, meaning that the

member has achieved the permanent rank of sergeant or lieutenant and is assigned to a

specialized unit as a Detective. (Such persons are said to have title and rank.)

Within the agency, various special units handle certain types of incidents, owing to the

special training and expertise of the unit. For example, in this case, the homicide section handles

all non-domestic adult kidnappings. Tr. 5/18/11, p. 197. When the homicide section is handling a

case, the assigned detective has complete authority, even to the point of ordering higher-ranking

members (not in the homicide section) away from a dead body and out of the area of a crime

scene. When the homicide section is handling a case, it is impossible for the detective to disobey

the order of any superior officer — other than a superior detective within the unit — for the reason

that the homicide detective is in charge.

What happened in the Ellsworth case is rare. Basically, a patrol sergeant — who obviously

outranks the rank of police officer, or (simple) detective — ordered a homicide detective with case

responsibility to stop investigating a kidnapping. Even assuming the motives of the Police

Sergeant were altruistic, the Sergeant lacked the authority to do what he did.

What transpired thereafter is almost theater of the absurd, with the Detective following

the order of a Detective Lieutenant and a Detective Major, which angered the Patrol Sergeant

who filed an administrative complaint. Incredibly, a criminal — Detective Redd — provided the

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lynchpin for conviction by offering critical evidence that mitigates against Ellsworth's position.

Redd falsely testified that Ellsworth had not assumed case responsibility. If it is true that

Ellsworth was not in charge, then Ellsworth may be guilty. However, as the evidence clearly

establishes — if Ellsworth was in charge — then he cannot be guilty.

The first witness before the Trial Board was Lieutenant Dameon Carter. Carter gave

some general testimony establishing that there were two "scenes." The first was the scene of the

adult kidnapping. The second was the scene of a possible suspect residence.

Addressing the second scene, Lt. Carter testified that Ellsworth stated: "I have to do

something" and began to walk towards the suspect residence. Tr. 5/17/11, p. 29. 5 Sgt. Brickus

told Ellsworth: "Don't go down there." Ellsworth replied: "I have to do something." Brickus

stated: "If you go down there you're suspended." Id Ellsworth yelled back: "Do what you got to

do." Tr. 5/17/11, p. 30. The Lieutenant yelled for Ellsworth to come back and he complied. Id.

Lieutenant Carter described that Brickus then approached Ellsworth and "you could tell it

was a little heated." Tr. 5/17/11, p. 31. Brickus grabbed for Ellsworth's badge. Id. Brickus (not

Ellsworth) was yelling. "Give me your gun. Give me your badge." Id.

Lieutenant Carter ordered Ellsworth to relinquish his badge and gun to Brickus. Tr.

5/17/11, p. 31. Ellsworth complied. Tr. 5/17/11, pp. 31, 93-94. Though he ordered Ellsworth to

relinquish his badge and gun to Brickus, Lt. Carter stated that Ellsworth was not suspended. Id

Carter ordered Ellsworth to call his Major. Tr. 5/17/11, pp. 32-33. Carter's demeanor must have

added to a confused situation. For example, Carter swore he did not tell Ellsworth to stand down

from his responsibility to continue the investigation. Tr. 5/17/11, p. 95. Carter also swore he did

tell Ellsworth to stand down. Tr. 5/17/11, p. 98. (In other testimony it was established that

5 When the Court reads the testimony, it is not immediately clear from the witness that the witness is referring to the suspect's residence. It became clear during the course of the three-day trial board that the suspect residence was at 2727 W. Garrison Avenue. This is the location referred to in the testimony by the witness.

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Ellsworth did call his Major and Ellsworth was ordered to continue the criminal investigation.)

Tr. 5/18/11, p. 209.

In short order, Lt. Carter described a second incident between Brickus and Ellsworth. Tr.

5/17/11, pp. 36-37. The problem was this: Brickus was adamant that Ellsworth was suspended.

Tr. 5/17/11, p. 37. Two superior officers — Lieutenant Carter and Major McLarney — were

equally adamant that Ellsworth was not suspended. Tr. 5/17/11, p. 31; Tr. 5/18/11, pp. 208-09.

One of the two — Major McLarney — ordered Ellsworth to continue the investigation. Tr. 5/18/11,

p. 209. In a sense, Ellsworth was literally damned if he did; damned if he didn't.

Ellsworth was charged with "[v]iolation of the Rules and Regulations for the government

of the Police Department for Baltimore City. See Charging Document, Page 1. Two supervisors

testified to those rules in a manner which absolutely establishes that Ellsworth is innocent of the

administrative charges against him.

First, Lieutenant Carter testified to the Administrative law that resolves this case.

Lieutenant Carter testified that the Homicide unit is responsible to investigate adult kidnappings.

Tr. 5/17/11, p. 64. Lieutenant Carter testified that Ellsworth was a homicide detective. Tr.

5/17/11, p. 65. The Lieutenant went on to say that if Ellsworth was in charge, then he was not

insubordinate. Tr. 5/17/11, p. 48. Ironically, the Lieutenant confirmed that Ellsworth was in

charge. Tr. 5/17/11, p. 39.

Note that Carter was a prosecution witness. Frankly, this testimony ends the case as a

matter of law.

Major Terrance McLamey then provided expert testimony that should have clarified the

case even for the Commissioner's hand-picked Trial Board. McLarney established his expertise.

McLarney testified that he has been a police officer for almost 35 years. Tr. 5/18/11, p. 154.

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McLarney testified that he served as a detective in Homicide Division for 22 years. Id.

McLarney testified that he served as the Commander of the Homicide Division for three years.

Id. McLarney testified that he has a bachelor's degree from the American University and a Juris

Doctor degree from the University of Baltimore. McLamey testified that he has had some part in

the investigation of over 1000 homicides and 100 kidnappings. Tr. 5/18/11, p. 156.

McLarney testified that he was the commander of the Homicide Division on August 7,

2009. Tr. 5/18/11, pp 122-23. McLarney testified that he assigned the case to Ellsworth. Id.

McLarney testified that he told Lt. Carter that Ellsworth is in charge of the case. Tr. 5/18/11, p.

124. These facts establish beyond any reasonable doubt that Ellsworth was the Detective

assigned to investigate the adult kidnapping in this case. (It is hard to imagine that McLamey's

testimony does not trump that of the criminal Redd.)

McLamey then testified about the law of the case — the rules and regulations for the

government of the Baltimore Police Department. McLarney testified that General Orders J-8 and

G-9 state that the Homicide Section is the lead unit in the Baltimore Police Department in charge

of investigating kidnappings. Tr. 5/18/11, p. 127.

McLamey testified that Ellsworth was in charge of every aspect of the first scene and any

investigation that grows out of the first scene. Tr. 5/18/11, p. 133. McLarney testified that it

would be unlawful for a patrol sergeant to physically (or otherwise) impede the investigation. Id.

McLamey testified that Ellsworth had complete authority to countermand anyone's orders at that

scene other than his own or a Homicide supervisor. Tr. 5/18/11, p. 139-40. McLarney testified

that it was not possible for Ellsworth to be insubordinate to anyone except a Homicide

supervisor. Tr. 5/18/11, p. 140. McLarney testified that if Ellsworth didn't investigate the

kidnapping, McLarney would have charged Ellsworth with disobeying his order. Tr. 5/18/11, p.

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140.

McLarney testified that in 19 years as a supervisor he had never heard of or run into a

situation where there is an attempt to stop or thwart a Homicide investigation by patrol units. Tr.

5/18/11, p. 142. McLamey testified that a patrol officer or patrol supervisor cannot interfere with

a homicide detective investigating a kidnapping. Tr. 5/18/11, p. 175. McLarney testified that the

homicide detective would decide whether to approach a person, house or any other investigative

step and that the detective could not be stopped or countermanded by a member of the Patrol

Division. Tr. 5/18/11, p. 176.

McLamey explained that the most important aspect of a kidnapping investigation is the

recovery of the victim to prevent harm to the victim. Tr. 5/18/11, p. 144. McLarney testified to

the nature of exigency associated with kidnappings, and that time was of the essence. Tr.

5/18/11, p. 147.

McLarney summarized certain matters for the Trial Board. McLarney testified that a

homicide detective investigating a kidnapping cannot disobey the order of anyone for the reason

that he is in charge. Tr. 5/18/11, p. 179. McLarney testified that it is the policy of the Baltimore

Police Department that the homicide detective assigned to investigate certain enumerated

offenses is the highest-ranking person on the scene of such incidents. Tr. 5/18/11, p. 192. "If he's

performing the task he was assigned, to be the primary investigator, he does not have to follow

an order from anybody [except the commander of Homicide or a higher ranking homicide

supervisor]". Tr. 5/18/11, p. 193.

The prosecutor — consistent with his efforts to credit the testimony of Detective Redd —

asked McLarney if Ellsworth had told Redd that he was not taking control of the investigation.

Tr. 5/18/11, p. 184. McLarney reiterated that a homicide detective is in charge of a kidnapping

18

investigation. Tr. 5/18/11, p. 185.

Construing the facts most favorably to Sergeant Brickus, Brickus had a good faith

concern about the safety of Ellsworth approaching the suspect's residence. This theme is a legal

red herring. First, the decision about what to do in a kidnapping case with inherent risks

regarding officer safety belongs to the assigned homicide investigator. Moreover, McLarney

made clear that in kidnapping cases — where the goal is to interrupt the kidnapping and possible

murder of the victim — the rules and regulations require that investigators act with dispatch, even

if such action puts them at risk. McLarney testified that "[T]here are times when you do unsafe

things because you have no choice." Tr. 5/18/11, p. 189.

The Trial Board made findings of fact relevant to its decision to convict the accused

police detective of conduct unbecoming an officer. The first material fact is that "No firm

decision was agreed upon who would be handling the situation (kidnapping) at this time." This

evidence came from the testimony of Detective Redd. Tr. 5/17/11, p. 155. Redd admitted that he

was friends with Brickus. Tr. 5/17/11, p. 191. It was in Redd's interest to confuse this issue to

protect Brickus from his own misconduct. More to the point, it is simply not true. Lieutenant

Carter confirmed that Ellsworth was in charge. Tr. 5/17/11, p. 39. Major McLarney confirmed

that Ellsworth was in charge.

The Trial Board's next material facts are that "Sgt. Brickus advised Det. Ellsworth not to

approach the [suspect's] house and Det. Ellsworth continued with his actions approaching the

house. Det. Ellsworth was advised by Sgt. Brickus he was suspended and his gun was

subsequently removed from him. Det. Ellsworth was advised to walk down the street. Det.

Ellsworth and Sgt. Brickus had a heated argument at the scene."

Even assuming the second set of facts to be true, they cannot constitute conduct

19

unbecoming an officer on the part of Ellsworth; the facts constitute conduct unbecoming an

officer on the part of Brickus. This isn't a matter of opinion; the Trial Board misapplied the

Rules and Regulations for the government of the Police Department of the City of Baltimore.

The overwhelming evidence is that Ellsworth did not conduct himself in an unbecoming manner;

the overwhelming evidence is that Ellsworth was following a legitimate order of a higher ranking

officer and Brickus was attempting to thwart his good work. Finally, any suggestion that being

the victim of unlawful interference with investigative responsibility equals conduct unbecoming

is arbitrary and capricious application of the administrative rules and regulations.

IV. The Trial Board's guilty verdict in Count 4 — disrespect to superior officer — was not supported by competent, material, and substantial evidence and was otherwise arbitrary and capricious.

Preliminarily, Petitioner's counsel adopts the statement of facts and argument set forth in

support of the third argument and incorporates the same arguments here, except that counsel

does not argue error of law in this sub-section. Counsel concedes that — at least theoretically — it

is possible for a homicide detective to be disrespectful of a superior ranking member of the

agency while not acting in an insubordinate fashion. (For example, a homicide detective yelling

profane remarks, acting in a disorderly manner, or accusing a patrol supervisor of an infamous

crime could certainly constitute disrespect unrelated to the criminal investigation the homicide

detective was completing.)

All of the evidence in this case — from every witness — established that Brickus twice

confronted Ellsworth. Ellsworth was charged with entering into a verbal confrontation with

Brickus. The testimony established that Ellsworth never entered into a verbal confrontation with

Brickus; Ellsworth attempted to overcome Brickus's unlawful intervention into his required

police investigation.

20

The Hearing Board made two findings of fact relevant to Charge 4: "Ellsworth yelled to

Sgt. Brickus, 'If you are going to suspend me, suspend me.'" "Also, testimony revealed Det.

Ellsworth said to Sgt. Brickus "you just suspended me, you have to lock me up."

Brickus testified that Ellsworth stated that he was going to save the kidnap victim. Tr.

5/18/11, p. 19. When Brickus attempted to stop Ellsworth, Brickus testified that Ellsworth said:

"You're going to have to suspend me then, sir. I'm going to save that girl." Tr. 5/18/11. p. 21.

Regarding the second statement, Brickus testified that after this incident, Ellsworth was

standing by his vehicle as ordered. "While he was standing by his vehicle, he was talking, saying

— yelling across the street 'Remember, boss, you've got to put me in cuffs. You've got to arrest

me,' again motioning with his hands." Tr. 5/18/11, p. 46.

The Board found these comments to be disrespectful.

During cross-examination, Petitioner's counsel attempted to prove that Sergeant Brickus

had assaulted the Petitioner. Tr. 5/18/11, pp. 60-61. This is clearly relevant to whether Ellsworth

was disrespectful. Eventually, Brickus impeached his own testimony. First, Brickus testified that

he put hands on Ellsworth to physically move him from one place to another. Tr. 5/18/11, p. 65.

He then admitted that he grabbed Ellsworth and picked him up. Tr. 5/18/11, p. 66. Brickus

testified that Ellsworth was not under arrest at this time. Tr. 5/18/11, p. 66. Brickus admitted that

he "was attempting to put the cuffs on [Ellsworth] when Sgt. Jackson intervened. Tr. 5/18/11, p.

68. Sgt. Brickus admitted that at this point, Ellsworth was under arrest. Tr. 5/18/11, p. 68.

Counsel for Petitioner attempted to contrast the witnesses changing/evolving testimony:

he was not under arrest (p. 66); he was under arrest (p. 68). The prosecutor objected and whined

and intervened to save the witness. The witness was saved. His memory changed. His testimony

evolved. Sgt. Brickus testified that he did not arrest Ellsworth, and further that he had never

21

testified that he had arrested Ellsworth. Tr. 5/18/11, pp. 72-74. When Petitioner's counsel

attempted to prove perjury (by eliminating a failure of normal memory), the prosecutor's

objections were sustained. Tr. 5/18/11, p. 74.

In summary, Sergeant Brickus physically assaulted Ellsworth. Such assault may be

legally justified, such as a lawful arrest of Ellsworth. Brickus alternately said he did not arrest

Ellsworth, he did arrest Ellsworth, and he did not arrest Ellsworth. Brickus testified that another

Sergeant on the scene was critical of Brickus. Brickus cut a deal with prosecutors that the

Petitioner is not allowed to know about.

Ellsworth - who was either unlawfully assaulted or legally arrested and then immediately

released without prosecution - for attempting to obey direct orders to investigate a kidnapping,

was ultimately found guilty of making two disrespectful comments. Either Ellsworth was not a

law enforcement officer at the time of the comments because he was suspended and under arrest

or the comments are an attempt to do his job in the face of illegal and unethical conduct by a

Patrol Sergeant who has lost control of himself.

Ellsworth is not seeking punishment of Brickus by this appeal. It is beyond the authority

of this Court, and not the subject of the appeal. At the same time, it is insult to injury to find

Ellsworth guilty so that a Department can pretend that Ellsworth was somehow at fault for the

bizarre behavior of a patrol sergeant at the scene of a suspected kidnapping.

REQUEST FOR RELIEF.

The Petitioner, Joshua Ellsworth, respectfully requests this Honorable Court reverse the

conviction for Count 1 and Count 4.

Clarke F. Ahlers,19uire Clarke F. Ahlers, P.C.

22

Atholton Square 10450 Shaker Drive, Suite 111 Columbia, MD 21046 410-740-1444

Attorney for Petitioner

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this ( "-day of November, 2011, I caused a copy of the foregoing PETITIONER'S MEMORANDUM OF LAW IN SUPPORT OF PETITION FOR JUDICIAL REVIEW to be mailed by first-class mail, postage prepaid, to: Mr. Paulos Iyob, Associate Legal Counsel, Baltimore Police Department, do 242 W. 29 th Street, Baltimore, MD 21211

Clarke F. A rs, Esquire

23

CLARKE F. AHLERS, P.C.

ATTORNEY-AT-LAW

EXHIBIT 1

/

ATHOLTON SQUARE

10450 SHAKER DRIVE, SUITE III

COLUMBIA, MARYLAND 21046

9 June 2010

TELEPHONE: 410.740.1444

FACSIMILE: 410.740.0048

Mark H. Grimes, Esquire Office of Legal Affairs 242 W. 29 6 Street Baltimore, MD 21211

Re: Detective Joshua Ellsworth. IID Case Number 2009-1458

Dear Mr. Grimes:

My client received a notice from Director Nathan A. Warfield of the Internal Investigation Division that the investigation was sustained for Misconduct / General and Insubordination. Pursuant to your letter of September 2, 2009, I am directing correspondence in this matter to you.

I request discovery as follows. Please accept this as a formal request for discovery to the fullest extent allowed by law, and to the fullest extent required by the Maryland Law Enforcement Officers' Bill of Rights, Md. Ann. Code Public Safety § 3-101, et seq. As a threshold matter, please understand that my request in this matter for production of notice in each instances are for materials described by, or written responses to, my request set forth herein.

Please provide with recorded media, or written document, which purports to be a waiver of any right guaranteed by the Law Enforcement Officers' Bill of Rights. Md. Ann. Code Public Safety § 3-103(f).

Please provide me with the name, rank and assignment of all personnel involved in the investigation of the above-captioned matter(s). Md. Ann. Code Public Safety § 3-104(d).

Please provide me with a copy of the record of the interrogation of my client, including copies of all tape recordings or other recorded media, as well as transcripts prepared in anticipation of litigation. Md. Ann. Code Public Safety § 3-104(k)(3).

Please provide me with the name of any witness and all charges and specifications upon the completion of the investigation. Md. Ann. Code Public Safety § 3-104(n)(I).

Please provide me with a copy of the written policies and procedures which the Department claims were violated by my client. Md. Ann. Code Public Safety § 3-104(n)(I).

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

Please provide me with a copy of all written correspondence between you or your agents and my client or her lawyer directing my client to appear for interrogation.

Please provide me with a copy of the procedures intended to be used to select the hearing board, including any reference to the contract between the bargaining agent for my client and the Howard County Police Department.

Please provide me with a copy of any polygraph test administered. Md. Arm. Code Public Safety § 3-104(m)(2)(iii).

Please provide me with notice of the time and place of any hearing, along with the issues to be resolved by hearing. Md. Ann Code Public Safety § 3-107(b).

Please provide me with the name, address and date of birth of all witnesses intended to be called by the Department at a hearing board. Md. Ann. Code Public Safety § 3-107(e)(4).

Please understand that these requests are intended to be continuing in nature, and require supplementation when additional information becomes known to the Department. I interpret the words "investigatory file" broadly to effect the intent of the General Assembly of Maryland. Therefore — at a minimum — the term includes a copy of the original complaint, all notices required by law, all the tapes or transcripts of interview and interrogations conducted by any investigator in this matter, and all evidence observed or obtained during the investigation. Obviously, it includes the names of confidential sources. While it is true that the identify of confidential sources is not automatically discoverable, it is necessary that you identify whether such sources exist, even if you intend to litigate to keep the identification a secret.

Please understand that I interpret the phrase "exculpatory evidence" to mean any evidence favorable to the accused because it tends to prove the accused to be not guilty or tends to mitigate punishment. Brady v. Maryland, 373 U.S. 83 (1963).

I agree to pay any reasonable charge for the cost of reproducing the material involved. I agree to execute a confidentiality agreement not inconsistent with the First Amendment to the United States Constitution, the Maryland Declaration of Rights, and the attorney-client privilege.

Thank you in advance for your attention to this matter.

Very truly yours,

Clarke F. Ahl quire.

Cc: Det. Joshua Ellsworth