Family's hopes for new investigation of Tyrone West's death met with inaction

Apr. 4—By Darcy Costello — dcostello@baltsun.com

April 4, 2024 at 6:00 a.m.

Tawanda Jones' early hope has turned to disgust.

In the nine months since Baltimore's top prosecutor said her brother's 2013 death deserved a fresh investigation, she's been treated like a "balloon with hot air," she said — pumped up and motivated, then "tossed around."

"They let the air out," Jones said. "It's totally disgusting."

Baltimore State's Attorney Ivan Bates said in July that Tyrone West's sudden death during an arrest by police "warrants a new investigation." But there was a hitch: Bates already had determined his prosecutors had a conflict and would be unable to conduct the investigation.

Finding someone to take on the review since has proved to be a hurdle for the first-term prosecutor, leaving West's family in limbo.

The review has become something of a hot potato in the circle of Maryland prosecutors, with Bates saying he can't do it and others saying they can't or won't.

Bates asked the Maryland attorney general and state prosecutor in July, but neither picked up the investigation. And while it's not unusual for prosecutors to help those in neighboring jurisdictions, Bates' recent requests of other state's attorneys haven't panned out. At least six recently turned him down, The Baltimore Sun confirmed.

Meanwhile, Jones last month marked her 555th "West Wednesday," a weekly vigil and call to action. The sister-turned-activist, joined by supporters, marched March 13 from City Hall to Baltimore Police headquarters. She is still demanding accountability for those involved in her brother's death, seeking to have them "prosecuted to the fullest."

"My brother's life matters. He is not a sport, not something you pick up and put down when you want to," Jones said. "At the end of the day, there's no statute of limits on murder. Why is my brother's case being passed around?"

West's case began in 2013 when two plainclothes Baltimore Police officers pulled him and a passenger over in his sister's Mercedes in Northeast Baltimore. The traffic stop deteriorated into violence over 15 minutes, becoming a struggle between West and officers trying to take him into custody over what police said was cocaine found in his sock. The 44-year-old was tackled to the ground by multiple officers. He died in handcuffs.

Police officers were cleared later that year of criminal wrongdoing. The then-State's Attorney Gregg Bernstein said they were legally justified in using fists, batons and pepper spray to subdue West, calling it "objectively reasonable force."

A key factor in that determination was the Office of the Chief Medical Examiner's finding West died from a heart issue exacerbated by heat, dehydration and the struggle with police — not by officers' actions.

That finding, however, has since been called into question. An independent forensic investigation by a New Jersey pathologist, done as part of his family's lawsuit against city and state officials, found West died because he couldn't breathe due to the way he was restrained, not due to a heart condition. (The city and state paid $1 million to settle the suit.) A second autopsy, done by a former medical examiner in Alabama and Mississippi commissioned by West's family, found he died of "positional asphyxia" while being restrained.

Also, Maryland's chief medical examiner for 17 years, Dr. David Fowler, came under scrutiny after he testified that he wouldn't say George Floyd's death was the result of a Minneapolis police officer kneeling on his neck. In 2021, then-Maryland Attorney General Brian Frosh began a review of the medical examiner's autopsies, and later said his office was focusing on deaths of people restrained by law enforcement.

Much of that information was not part of prosecutors' previous reviews of West's death.

The back-and-forth between Bates and other prosecutors isn't the first time Jones has been disappointed.

Former State's Attorney Marilyn Mosby criticized her predecessor, Bernstein, for a lack of "transparency" in West's case while she campaigned to replace him in 2014. But once in office, she declined to reopen the case. Mosby, Bernstein and Bates are Democrats.

Jones said she has met with Bates since he took over from Mosby, and that he seemed interested in the information she shared.

But "nobody wants to take a step forward and open the Pandora's box, all the cover-up, corruption, covering up one man's brutal murder," Jones said.

According to Bates, the lack of investigation reflects his office's conflict of interest and his county prosecutor peers' workloads.

He is pushing for the Maryland Attorney General's Office to take the case, both because that office received at its request the power to prosecute police (the Independent Investigations Division was created to investigate police-involved fatalities as of Oct. 1, 2021, not old cases) and because it's already reviewing the old autopsies.

However, Democratic Attorney General Anthony Brown hasn't picked up the case. Asked why, a spokeswoman for the attorney general pointed a reporter toward its July 31 response to Bates. In it, Brown offered to help Bates determine whether the conflict involving his staff would "prevent your entire office from investigating the case."

"Please let me know how I can assist your office as you seek to deconflict issues that would enable you to fulfill your duties and responsibilities in this matter," Brown wrote.

Bates did not accept Brown's offer. Instead, he turned to Lydia Lawless, the former head of the state Attorney Grievance Commission, who Bates called "an expert in the rules of professional responsibility." In an opinion dated Aug. 21, shared with The Sun by Bates' office, Lawless wrote that "applicable law does not mandate the SAO's disqualification," but "the public interest is best served by recusal."

"This is a high profile case that has been reviewed four times previously. This review is likely the final review, and for the public's confidence in the criminal justice system, I recommend you err on the side of caution and recuse from the West investigation," Lawless wrote.

Bates said his office's conflict is that he has a relationship with the West family's former attorneys and has personally attended and supported West Wednesday rallies — and that there's a "familial relationship" between a member of his staff and one of the police officers involved in West's case.

The Sun confirmed independently that an assistant state's attorney is married to one of the two officers who first attempted to stop West's car. They were married in Baltimore County in October 2020, according to public records.

When Bates struck out with the attorney general, he contacted the state prosecutor, to no avail. That office, which declined to comment for this article, has limited jurisdiction and likely would require investigative assistance. More recently, Bates contacted a host of state's attorneys last month to ask them to investigate.

Top prosecutors in Anne Arundel, Baltimore, Frederick, Howard, Montgomery and Prince George's counties each said no. In response to questions about their decisions, the offices pointed to their own large caseloads amid limited resources, as well as the need for someone with experience to review West's case.

"We are down six attorneys right now, and the amount of time and effort that would have to go into that case would really push us too far," said Baltimore County State's Attorney Scott Shellenberger, a Democrat.

He said acknowledged that turning fellow prosecutors down is unusual, but that it's "also unusual for it to be this big and complicated of a case."

Anne Arundel County State's Attorney Anne Colt Leitess, too, said people with background to do "these kinds of cases are not a dime a dozen."

"You have to have multiple years of experience," the Democrat said. "Every office has a handful of those people and we try not to give them less-complex cases. We know we're going to need their skills when the complicated case comes along, and it does, invariably."

Where that leaves Jones and the rest of West's family is unclear.

Defense attorney Joe Murtha, a former prosecutor, called it a "unique situation" for a state's attorney to say a case should be reviewed and that review not happen. He acknowledged that the offices of state's attorneys might be struggling to keep up with caseloads and not looking for other work.

"It would seem that if there's an elected state's attorney that believes it should be reviewed, there should be a mechanism to facilitate that review, despite the conflict," Murtha said. "The question is: Is anybody willing to volunteer to take that review?"

It's possible that West's death is one of the just under 90 cases of the former medical examiner that the attorney general's office is reviewing. The office hasn't released which autopsies are under review, which it said was "to maintain the highest levels of integrity and a truly independent review."

If it is one of those, perhaps West's case would be reopened as a result.

Jennifer Donelan, the attorney general's spokeswoman, said March 20 that it would be "premature" for that office to initiate a criminal investigation into "any of the cases included in the audit prior to conclusion of the review."

Jones doesn't plan to go anywhere in the meantime. And she rejects the responses and explanations offered by those who won't investigate, calling them "a bunch of bologna" and "kicking the can down the hill."

"I'm very pissed off, for the simple fact, I've never missed a week," said Jones, beginning to cry. "I've been out there since 2013. I didn't go on vacation. I didn't stop."

To prosecutors, she added: "You ain't do nothing then, and you ain't do nothing now. And it's disgusting."

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