Baltimore Police Missteps Prompt Dismissal of Federal Charges in Two Separate Cases

by Van Smith

Published in City Paper, Aug. 1, 2014

Credibility issues involving Baltimore police officers prompted federal prosecutors to dismiss charges against two men yesterday. The exonerated defendants had been charged in separate cases.

One, Kevin T. Jones, was charged and tried earlier this year before a jury for being a felon in possession of a firearm, but a mistrial was declared after the jury couldn’t return a verdict. As the retrial approached, earlier police testimony about the circumstances leading to Jones’ arrest was shown to be so conflicted that, as the defense put it in a motion, it raised “well known credibility problems associated with the Baltimore City Police Department.” The government’s motion to dismiss Jones’ charges was filed yesterday by assistant U.S. attorneys Jason Medinger and Bonnie Greenberg.

The other, Robert Lomax III, was charged last year in a heroin-conspiracy indictment, facing counts for being a felon in possession of ammunition and maintaining a drug-involved premises, but evidence against him was obtained through an unconstitutional warrantless search of trash on his property. Assistant U.S. attorneys Christopher Romano and Seema Mittal filed Lomax’s dismissal motion, stating that “the Government now believes that the trash pull conducted at Defendant Lomax’s residence ran afoul” of constitutional protections.

In Jones’ case, three officers’ conflicting testimony on the stand during a pre-trial hearing was made even more dubious when their case agent, Det. Edgar Allen, was questioned during the trial about official notes he wrote describing Jones’ arrest. The arrest, on Jan. 19, 2013, occurred after police approached Jones while he was leaning in through the open drivers’ side front door of his van, handling some clothes over the console area, and when the officers spoke to him, he tossed the clothing to the passenger-side seat, and a gun tumbled out. Three officers testified at trial, including James Kostoplis, and all three said Kostoplis saw the gun first, and seized it. But Allen’s notes contradicted that account, saying the gun was first seen and seized by a fourth, non-testifying officer, Steven Langjahr.

“This discrepancy reflected in Detective Allen’s notes,” Jones’ defense attorneys, federal public defenders Deborah Boardman and Joseph Evans, wrote in a motion, “relates directly to the credibility of the officers and the integrity of their account” and “raises the significance of the other inconsistencies in their testimony by challenging the core version of events.” Allen, they wrote, “recognized the central significance of the discrepancy when he testified” that the case “would have never come through” for federal prosecution if the officers had first said it had been Langjahr who seized the gun, then “came back later and said, ‘Oh, no, it was Kostoplis.” The defense attorneys added that “this was a stunning admission” by Allen that “the discrepant account was central to the case and central even to the original decision to authorize the matter for federal prosecution.”

Lomax, meanwhile, was indicted last fall in a 14-member heroin conspiracy headed by Antoine “Twizzy” Wiggins. The case┬ámade headlines because one of the defendants is Marlow Bates, the son of a famous Baltimore gangster who pleaded guilty to a 2009 Black Guerrilla Family prison-gang racketeering indictment, and because it involved the seizure of a small fleet of high-end luxury vehicles, including a Bentley convertible and an Aston Martin, and a 33-foot power boat. From the very beginning, though, Lomax’s attorney, Nicholas Vitek, sensed problems with police tactics involving his client.

“There are serious legal issues” with the warrant issued to search Lomax’s home, Vitek said at a Sept. 30, 2013, hearing in the case. “There is to my mind not sufficient probable cause. And even if there was sufficient probable cause, it was done in a way that violated Mr. Lomax’s rights. So there are serious legal issues with whether or not what can be recovered in the home can actually be used against him.”

Turns out, Vitek was right. The warrant was “defective because the probable cause for the warrant is premised on an illegal search that took place when the police entered Mr. Lomax’s property for the express purpose of obtaining information,” he wrote in a motion to suppress evidence filed in June. “The police crossed the curtilage of Mr. Lomax’s property and seized bags of trash without a warrant,” he continued, adding that “this warrantless search requires not only the suppression of the evidence directly obtained from the trash bags, but also all evidence that is the fruit of the poisonous tree.”

What’s more, Vitek asserted that police included in their application for the warrant to search Lomax’s home “intentional false statements or statements that were made with reckless disregard for the truth” which “misled the issuing judge, the Honorable Nathan Braverman of the District Court of Maryland, into believing that a trash pull that was conducted from Mr. Lomax’s house had been lawfully conducted when, in fact, it clearly had not.” Applying for the warrant, according to court records, were Baltimore Police detective Julie Pitocchelli and Sgt. Steven Olson.

Romano had already indicated that Lomax’s dismissal was in the works. In a massive response to defendants’ many motions contesting issues in the government’s case, which he filed on July 28, Romano wrote in a footnote that “the Government will not be responding to Lomax’s motion to suppress” because it “intends to move for dismissal of the counts in which Lomax is named as a defendant.”