The Maryland Court of Special Appeals grilled the State’s top prosecutor during an appeal hearing over the controversial misconduct conviction of Pocomoke City’s first Black police chief Kelvin Sewell, charges his lawyers say were in retaliation for filing a series of discrimination complaints.
Earlier this month the three-judge panel asked pointed questions on both the legal theory underlying the charges and the origin of the criminal case brought after Sewell filed EEOC complaints and a federal civil rights lawsuit against Pocomoke and the Worcester County State’s Attorney.
Sewell was found guilty of misconduct by a Worcester County jury in 2016 for failing to charge in a 2014 case involving an African-American resident of Pocomoke who struck two parked cars, drove three blocks home, and called police. State prosecutors argued that Sewell should have charged the driver, Doug Matthews, with leaving the scene of an accident. They also alleged Matthews may have been drinking prior to the collision. (Full disclosure: this reporter wrote a book with Sewell)
However, during the trial prosecutors were unable to provide evidence that Matthews was intoxicated. In fact, jurors heard a 911 call from one of the first officers to arrive on the scene who told dispatchers Matthews was not “drunk,” just scared.
The indictment came nearly a year after Sewell was fired without explanation by the Pocomoke City Council. In a lawsuit filed after his dismissal Sewell alleged he was terminated for refusing to fire two Black officers who accused the Worcester County Drug Task Force of creating a racially hostile work environment.
Among the issues raised by the justices during the hearing was the prosecution’s reliance on Sewell’s membership in a Black masons lodge to prove their case. Prosecutors argued during the trial Matthews membership in the same lodge made Sewell’s decision not to charge him corrupt, even though there was no evidence Matthews knew Sewell or communicated with him before or after the accident.
“Is there any evidence of a prior relationship between Sewell and Matthews?” the judges asked.
Assistant State Prosecutor Kelly Madigan answered: “No.”
The panel also asked questions about emails State Prosecutor Emmet Davitt was ordered to turn over during the trial which revealed investigators from his office relied heavily upon information supplied by the Worcester County State’s Attorney, who was also the subject of a sustained EEOC complaint filed by Sewell.
“There was communication between your office and their office?” a judge asked.
“Yes, Worcester County gave different tips,” Madigan replied.
In a brief filed prior to the hearing, Sewell’s attorneys argued that close coordination between State Prosecutors and the Worcester County State’s Attorney’s office amounted to prosecutorial misconduct. An allegation the judges raised by asking pointed questions about the timing of the probe.
“I’m just trying to understand,” Judge Andrea Leahy asked. “First Chief files an EEOC complaint, then he was terminated and then he filed the lawsuit…and then he was charged…. all these things occurred first correct?”
“Yes,” Madigan answered.
After the hearing in an interview with The Real News Network, State Prosecutor Emmet Davitt vehemently denied allegations that his prosecution was retaliatory.
“We made this decision to charge him when his co-defendant and co-plaintiff in the civil suit came out and said he had been drinking,” Davitt argued, referring to Sewell’s Lieutenant Lynell Green, who also filed an EEOC complaint against the Worcester County State’s Attorney’s office.
“Everybody knows that. Counsel on all sides knows that. That’s why we charged him.”
But Green’s attorney say Davitt’s statements don’t jibe with what occurred during Green’s trial, who was also convicted of conspiracy in February 2017.
“Mr. Davitt’s recollection of the evidence presented at Lt. Green’s trial clearly differs from ours,” Green’s attorneys said in a written statement.
“As Mr. Davitt knows, the testimony at trial was that Lieutenant Green told investigators that he had told Chief Sewell that the driver may have had one or two drinks but that the first officer to make contact with the driver testified unequivocally and consistent with his pre-trial statements to OSP investigators that the incident did not appear to be drug or alcohol related.”
For now Sewell’s fate is in the hands of the court, which is expected to render a decision by May. Worcester County resident Gabe Purnell, a Sewell supporter, says he hopes the court will overturn the conviction.
“Sometimes our justice system is a bit corrupt,” said Purnell. “And we need to be mindful of that all the time because justice is not always just.”