Amidst growing calls to increase police use of body-worn cameras, the Frederick County State's Attorney's office says it lacks the funding to meet its obligation to provide evidence from those cameras to defense attorneys, which could lead to cases being dismissed.
The Frederick Police Department is the only agency in the county to equip officers with cameras, purchasing 18 chest-mounted cameras in 2016. The department began recording certain interactions with members of the public beginning in October of that year.
But even that small allotment has created a large need for additional funding for prosecutors, according to State's Attorney Charlie Smith, who pointed out that, in 2018 alone, Frederick police generated 2,762 videos totaling 5,929 hours of footage.
With the Frederick police poised to roll out close to 60 more cameras this summer, Smith said his office's request for $353,512 to fund new employees and technology to help review camera footage and provide it to defense attorneys as potential evidence in court was not approved.
"I have to be funded or these cases are going to be dismissed, and not necessarily by me, but by a judge, who is going to ask me, 'Mr. Smith, did you [review all the footage] in this case and examine it to provide potential exculpatory evidence in [the] discovery [process]? And I’m going to have to say, ‘No, I don’t have the resources,’ and the judge will dismiss that case," Smith said.
Back when body cameras were first deployed, Smith said his office's policy for most misdemeanor cases where camera footage was present was to attach a note to defense attorneys informing them that there was footage and directing them to request the evidence from the police department if they wished to view it.
While that process saved time and resources, the public defender's office filed a motion in May 2019 stating the practice violated state laws regarding the availability of evidence to defense attorneys. The public defenders argued that state's attorneys, not the police, were required to provide all potentially exculpatory evidence — evidence that could potentially exonerate a defendant — to the defense whether it was specifically requested or not, Smith said.
Smith sought guidance from the Office of the Attorney General in July, which was provided in a letter dated Nov. 7, 2019.
"They wrote back that our process that was being utilized did not comply with what we call our Brady obligations, which are our obligations to seek out, find and review any exculpatory evidence that is in possession of the state … and that we cannot satisfy our disclosure obligations merely by alerting the defendant that body camera footage exists and may contain exculpatory evidence," Smith said, explaining that the reply forced him to request funding for an in-house video evidence unit.
That request for funding triggered a dispute between Frederick County Executive Jan Gardner, who proposes the county's budget for approval by the County Council, and Frederick Mayor Michael O'Connor, who proposes the city budget for approval by the Board of Aldermen.
Gardner's office pointed out that, because the city's body camera program only provides a benefit to city residents, the budgetary need at the county level for the state's attorney's office should be funded by the city, according to a letter obtained by The Frederick News-Post that was sent from Gardner to O'Connor in January.
In the letter, Gardner suggests that the city fund the state's attorney's office's request for roughly $350,000 from the tax equity money the city receives each year to compensate the city for extra taxes the city pays for duplicated services, such as policing services that city residents are taxed for by both the city, which actually provides their policing, as well as county police services that all county residents are taxed for but that city residents don't receive. The letter points out that, in the 2020 fiscal year, the city was budgeted to receive approximately $6,621,257 for tax equity involving police services alone, which Gardner proposed could be used to cover the state's attorney's office's need for funding pertaining to the city's body-worn camera program.
"The formula makes allowances for unique policing issues in the municipalities; therefore; we could arrange for a deduction from the city of Frederick police component of the tax equity formula," the letter reads in part.
O'Connor rejected the idea that the city should contribute to funding the prosecutor's office, arguing that the city has never funded the prosecutor's office and that the body worn camera program is not a duplicated service, meaning it is not a tax equity issue in his perspective. O'Connor further argued that similar operations by Frederick police that impact the caseload of county prosecutors aren't handled in the same way.
Specifically, O'Connor mentioned previous operations where city police have identified a need to focus on a certain law enforcement activity in the city, such as running impaired driving checkpoints or organizing a special drug interdiction effort to crack down on drug complaints.
"Those types of activities are likely to place more cases into the hands of prosecutors, but at no point whenever those things have occurred in the past has the conversation shifted to, 'Well, if you’re going to pursue those actions, you need to contribute funding to the prosecutor's office,'" O'Connor said when reached for comment Wednesday.
O'Connor went on the point out that the state's attorney's office and the county have had plenty of time to prepare for the implementation of the city's body-worn camera program.
"It has been a year since the decision was made to move forward with expanding our body-worn camera program. What provisions and planning has been done by other [levels] of government in that time to prepare for this?" O'Connor said. "Are we supposed to take this tool that we have available and say, 'Well, I guess we shouldn’t deploy this,' because another entity doesn’t think they have the resources?"
Gardner said that she supports the city's effort to expand its body-worn camera program and that the county would fund the state's attorney's office's evidence review unit, but insisted that the money to fund the unit be deducted from the city's tax equity funding for policing issues.
"The purpose of body-worn cameras is to provide transparency and accountability to police actions. [But] without an evidence review unit, neither of these goals is achieved because the video would not be made available to anyone and could not to be used for prosecution of cases," Gardner said in an email response to The Frederick News-Post's questions on Wednesday.
"The mayor is aware of these expense and the fact that the goals and objectives of a body-worn camera program would not be achieved without funding an evidence review unit," Gardener continued.
"While it is not a legal requirement or a mandate for the county to fund the evidence review unit in the state’s attorney’s office, it is the right thing to do," Gardner's statement continued. "The county will provide the funding needed to establish the evidence review unit for the state’s attorney. The source of funds will be from the tax equity allocation for the city for its policing to keep this formula fair to all the municipalities in Frederick County."
O'Connor said he appreciated the executive's acknowledgement that an evidence review unit was needed in the state's attorney's office, but reiterated his concerns with Gardner's method of using tax equity funds to support the unit. Paying for the unit using tax equity funding would ultimately mean raising the rate that city taxpayers pay on property taxes, O'Connor said.
"She’s paying for this on the backs of the city’s taxpayers ... I don't think that's fair," O'Connor said. "She’s decided that the city is going to fund this, one way or the other."
In the meantime, Smith and his prosecutors remain in an uncomfortable position. Even if funding is secured, if the city rolls out more cameras this summer as planned, his office may not be able to keep up with new cases involving body camera footage while still trying to handle pending cases.
"For all felony cases, I’m just going to have my prosecutors work overtime, because I’m not going to allow any pending felonies to get dismissed," Smith said. "However, for future cases? Everybody is now aware of what the obligations are, so ... I don’t know, I don’t want to really go that far yet, I just want to ensure that if any more body cameras are going to be deployed by FPD, before that takes place, funding and staff and resources have to be in place."