July 9, 2019: Kelvin Sewell, Sentencing Memorandum
Sentencing Memorandum
The State of Maryland, by Emmet C. Davitt, State Prosecutor, and Kelly Madigan, Deputy State Prosecutor submits the following Sentencing Memorandum. The defendant in this case, Kelvin Sewell (“Sewell”), was found guilty by a Worcester County jury in December of 2016 of Misconduct in Office. Sewell appealed his conviction to the Court of Special Appeals who reversed and remanded the case to allow Sewell to call an expert witness. In January of 2019, the case was remanded to Circuit Court for Worcester County for a new trial. On May 15, 2019, a Worcester County jury again returned a guilty verdict to the charge of Misconduct in Office. Misconduct in Office is a common law crime and is punishable by any sentence not deemed cruel and unusual.
THE INSTANT CASE
At trial, evidence was adduced that Sewell, while Chief of Police for Pocomoke City, interfered with and obstructed a traffic accident investigation to benefit an acquaintance by ordering a subordinate to document the incident as an accident instead of a hit and run or a Driving Under the Influence (DUI) investigation. Both of the officers who responded to the scene testified that, if free to carry out an appropriate investigation, they would have performed field sobriety tests based on the exceptional circumstances of the accident. To not only fail to carry out your sworn duties but also order subordinates to act contrary to their sworn duties is a serious abuse of authority and needs to be treated as such in sentencing.
The facts of this case are especially egregious as the driver, who Sewell prevented from being investigated for possible impairment, drove a mere four blocks and in that time hit a parked car with such force that the car was totaled. The force was so great that the driver lost a tire and proceeded to drive the remaining blocks home on three wheels. In our country’s not so distant history, allegations of drunk driving were hidden to protect the drunk driver at the expense of the safety and lives of many people. On average, a person has driven drunk eighty (80) times before his or her first arrest.[1] The facts of this case warranted an investigation into the driver’s potential impairment no matter who he counted as a friend. For Sewell to interfere in the proper investigation of a possible, if not likely drunk driving accident, should not be tolerated.
OTHER CONSIDERATIONS
In the present case, Sewell’s actions to discredit a witness before his case was retried, to use a subordinate to lie about a conversation with that witness, and to perpetrate a fraud on this court through fabricated affidavits are relevant to this Court’s sentencing analysis.
After the Court of Special Appeals remanded Sewell’s case, Sewell, through his attorneys, sent a letter to the State Prosecutor alleging that a State’s witness, Tanya Barnes (“Barnes”), confessed to Sewell that she was not truthful in her testimony in Sewell’s original trial. Sewell’s letter outlined an alleged interaction he had with Barnes one evening when Sewell was picking up his daughter, who is a prosecutor at the Baltimore City State’s Attorney’s Office in the Juvenile Division, at the Baltimore City Juvenile Justice Center. Sewell’s letter stated that Barnes approached him and confessed to him that she lied in Sewell’s original trial because she was threatened by investigators from the Office of the State Prosecutor. Sewell’s counsel provided the State with this information in a letter, requested the State not retry Sewell based on Sewell’s allegation, and threatened a Motion to Dismiss for prosecutorial misconduct if the State intended to proceed with the retrial of Defendant. Sewell’s attorney’s then provided the State with an affidavit from Sewell outlining another alleged incident at the Baltimore City Juvenile Justice Center when Barnes confessed to Sewell that she was not truthful.
The State, aware of its important obligation as truth-seekers and wanting to avoid suborning perjury, asked Barnes if Sewell’s allegations were truthful. Barnes vehemently denied Sewell’s allegations and asserted she had been truthful during Sewell’s original trial. The State then placed Barnes in grand jury, where she unequivocally refuted Sewell’s claims. She said that she had never told Sewell that she was not truthful in the original trial. In the first instance she saw Sewell in his car, she explained he called her over and gave her a hug and told her that he was not mad at her. She explained that she told him that she thought he was a good chief and they went their separate ways. In the second incident, Barnes explained that she had gone to Sewell’s office on the second floor of the Juvenile Justice Center at his invitation after he approached her explaining that he wanted to discuss racial issues in Pocomoke for a book he was planning to write. She was reluctant, but entered his office. As soon as she entered, Sewell advised her she was on speaker phone and asked if she would speak to his attorney, and she responded that she would not at that time. Then, two individuals, who she later learned were reporters, walked into the room trying to speak to her and she refused to speak to them as well. Barnes was clear that she did not discuss the case with Sewell at all, she did not say she was untruthful, and she did not say anyone threatened her. Barnes’s grand jury testimony was disclosed to Sewell through his counsel making him fully aware that the State’s position was that Sewell’s new allegations were not true and that Barnes had and would continue to testify truthfully.
After Sewell’s counsel was made aware of Barnes’s assurances that her testimony was and would continue to be truthful, the State received an affidavit from a man employed by the Baltimore City State’s Attorney’s Office, who directly reports to Sewell. In his affidavit, this man, Kedrick Scribner (“Scribner”), contradicted aspects of Barnes’s grand jury testimony and confirmed the facts as alleged by Sewell. In an effort to ensure the State’s witness was being truthful, the State conducted an investigation of Scribner’s assertions.
Scribner’s affidavit indicated that he heard Barnes’s recantation at the Baltimore City Juvenile Justice Center. Sewell’s attorneys also provided security camera footage that showed the conversation happening, though they did not have voice recording of the conversation. The State reviewed the video referenced by Scribner’s affidavit and obtained video footage for the entire period that Sewell and Scribner were in the Baltimore City Juvenile Justice Center. The video from the entire period that Sewell and Scriber were in the Baltimore City Juvenile Justice Center contradicted several of Scribner’s assertions, and, interestingly, showed what seemed to be Sewell and Scribner asking someone to direct them somewhere when they arrived. The State was able to identify the man directing Scribner and Sewell as Lieutenant Spencer Giles (“Giles”) of the Baltimore City Sheriff’s Office. When the State interviewed Giles, and eventually questioned him in grand jury, he explained that Sewell and Scribner arrived at the Baltimore City Juvenile Justice Center asking him if Barnes was working that day and he directed them to the third floor where she was assigned at that time. Giles even went as far as to escort them to the third floor and advised Barnes that they were there to see her. Giles remembered seeing them because while he had known them a long time he had never seen them at the Center in the two years he had been working there.
When Scribner submitted his affidavit to the State, Sewell and Scribner seemingly did not consider that the State would obtain Scribner’s emails from the Baltimore City State’s Attorney’s Office which showed Sewell sending an edited version of the affidavit that Scribner signed and was subsequently filed with this Court. The emails demonstrated that a significant part of Scribner’s sworn statement was written verbatim and amended by Sewell. The emails revealed various lies. In addition to the lies about the motivation for visiting the Baltimore City Juvenile Justice Center and the lies about their movements within the center, there were also lies about basic information. For example, Scribner swore that he had never met Barnes and was unaware of Sewell’s previous trial when in Scribner’s emails to Sewell the same day they went to the Baltimore City Juvenile Justice Center, Sewell had sent Scribner a petition and letter from the ACLU asking the State Prosecutor not to retry the case. Scribner not only received the email but forwarded it to another friend to sign.
This orchestration of a false affidavit by a subordinate is especially concerning in light of the facts of the case that supported Sewell’s conviction. Sewell was convicted of interfering with and obstructing an investigation to benefit an acquaintance by ordering his subordinates to act against their training and experience and instead to do what he ordered them to do. Here, Sewell, in coordination with one of his subordinates, created a document littered with false information to undermine the credibility of a witness for the State and to undermine the fair administration of justice. This serves as clear evidence that Sewell has not learned from or taken responsibility for his role in the present case.
After Scribner’s grand jury testimony was truncated by the State for concerns about his lack of truthfulness,[2] Sewell created a new sworn statement of his own that corrected his account of the events in light of the video evidence Scribner was confronted with in the grand jury. However, Sewell was not aware of Giles’s testimony so his attempt to fix the inconsistencies in his own affidavit did not account for the inconsistencies between Scribner, himself and Giles. He could not have known that Giles would testify that while he has known both Sewell and Scribner a long time, that day was the first time he had seen either of them at the Baltimore City Juvenile Justice Center in the two years that he has been there and that they had specifically asked to see Barnes that day. He also did not know the State had obtained his phone records, so in his new sworn affidavit, Sewell claimed he called reporters only after Barnes made a confession to him that he thought warranted the presence of the reporters. He swore in his revised affidavit that he called the reporter, who walked into his office to talk to Barnes, Steve Janis,[3] after he coincidently ran into Barnes and she shocked him with her massive admission. However, Sewell’s phone records indicate he called Janis before Sewell even entered the Baltimore City Juvenile Justice Center. Sewell’s new affidavit, different from the one he drafted for Scribner before Scribner was confronted with contradictory video evidence, still contradicted incontrovertible evidence obtained by the State.
The State’s investigation into the truthfulness of its own witness instead revealed the duplicity of Sewell. Sewell, shortly after he was granted a retrial, sent false information to the State about a State’s witness and law enforcement professional. He then got a subordinate to sign an affidavit, which Sewell drafted, which was not truthful. He then wrote his own affidavit in an attempt to correct information that his subordinate was confronted with in grand jury and that information was also proven to be false. He doubled down on his falsities throughout the trial process accusing everyone else, the State prosecutors, the State’s witnesses, the State’s investigators all of lying when the incontrovertible evidence revealed that he was spinning an intricate web of untruths. Sewell has not taken responsibility for his actions in this matter as he has not in the case for which he is to be sentenced. These facts serve as a powerful example of Sewell’s choice to undermine the processes of this Court by fabricating sworn statements and lodging accusations against others when he was exposed rather than take responsibility for his role in the case for which he is to be sentenced.[4]
A defendant’s sentence should be individualized to fit the offender and not merely the crime. Douglas v. State, 130 Md. App. 666 (2000). In considering the proper sentence for the convicted individual standing before him, the judge saddled with the responsibility can take into account a wide, largely unlimited, range of factors. Ellis v. State, 185 Md. App. 522 (2009). The primary purposes of sentencing are punishment of the offender, deterrence of the defendant and others, and vindication of the ideal of equal justice under the law. An appropriate sentence in this case must address each of these objectives. Based on the charge itself and Sewell’s lack of a criminal record alone, the Maryland Sentencing Guidelines suggest a sentence of probation. These same guidelines, however, contemplate specific reasons that justify a departure above the suggested guideline. Exploitation of a positon of trust, the gravamen of Sewell’s crime, is specifically delineated by the Maryland Sentencing Guidelines as a reason to exceed the guideline range. The guidelines further recognize that other circumstances of the crime and/or the offender justify going above the suggested guideline. Specific egregious circumstances showing consciousness of guilt and perpetration of a fraud upon this Court should be taken into consideration, especially in light of the fact that the methods used by the Sewell to affect his trial are similar to the methods that gave rise to the conviction he faces in this case.
After Sewell’s initial conviction, the State recommended a sentence of three years with all but six months suspended. The State makes the same recommendation today. Although the court suspended the entire sentence after Sewell’s first conviction, his recent actions to obstruct justice and deceive this Court merit a period of incarceration and the State strongly urges this court to impose such a sentence.
Respectfully submitted,
Emmet C. Davitt
State Prosecutor
[1] Centers for Disease Control. “Vital Signs: Alcohol-Impaired Driving Among Adults — United States, 2010.” Morbidity and Mortality Weekly Report. October 4, 2011
[2] The State put Scribner, who was represented by counsel, in grand jury to probe his assertions. When confronted with video footage, Mr. Scribner admitted his earlier grand jury testimony and his sworn affidavit were not accurate. At that point, the State stopped questioning Mr. Scribner in grand jury.
[3] Steven Janis has covered both of Sewell’s trials extensively and is presently co-authoring a book with Sewell.
[4] The State provided all evidence in the State’s possession related to Sewell’s actions referenced in this memorandum to Sewell through his counsel prior to trial and has a court order to disclose any grand jury material to the court upon request. The State will have all grand jury material and other evidence referenced in this memorandum available for the Court’s review at sentencing.