Wednesday, November 16, 2016

The Day America Lost Its Greatness


On November 8, 2016, America elected a lawless man to the White House.  For this reason, and not for any other, it forfeited its claim to greatness.  

Policies come and go.  Health care, immigration, taxes, foreign policy - these things don't make or break the character of a country.  Policies change over time, edge forward and backward, left and right, as people with differing points of view advocate and, in a well-functioning democracy at least, compromise.  

No, we lost our greatness when we handed the power of the people to a man with absolute disdain for the basic principles on which this country was founded.  In 1787 we agreed to be ruled by laws created by public consent, subject to constitutional limitations that protect basic freedoms.  We have also agreed through the years on rules of conduct that guide our behavior in a democracy.  Yet we elected a man with no respect for any of it. 

As a former prosecutor, I blasted Baltimore State's Attorney Marilyn Mosby for her failure to follow the facts and the evidence when she charged six police officers in the death of Freddie Gray.  She saw only what she chose to see.  Now the American people have followed suit, ignoring the facts before their eyes and entrusting their power to man without dedication to the rule of law, be it moral, political, civil or criminal.  Winning and power is all that consumes Donald Trump. 

It's not as though he hid who he was.  We weren't fooled into voting for him.  He told us from his own mouth, from his own actions, who he is and what he wants.  He poured out and doubled down on the insults, the bullying, and the repeated, documented lies, so many that we lost track. He privately boasted of sexual aggression, and publicly laughed about visiting young women in various states of undress in their beauty pageant locker rooms.

He ignored well-established, importance practices of accountability and responsibility in political life such as releasing tax returns, transparently lying about the reason. He refused to say he would acknowledge the legitimacy of the election if he lost, blatantly undermining confidence in our process by calling it "rigged."  He even suggested that a hostile foreign power should interfere with the election, mocking the reality of that interference.  He threatened to lock up his political opponent upon taking office, and encouraged followers to harass minority voters at the polls. He "joked" that "Second Amendment" people should handle judicial appointments by his opponent.

He routinely breached his business contracts, created enterprises to defraud customers, and criminally assaulted women. He illegally used his charitable foundation to pay the Attorney General of Florida a campaign donation when she was contemplating a fraud investigation.  He refused to accept the DNA exoneration of the Central Park rape defendants who he had originally wanted put to death.  His disdain for international law and civilized boundaries revealed itself in his approval of torture not only for persons he deemed enemies but for their families.  

None of these matters are under factual dispute, and none have to do with policy.  It's about his abuse of power. He threw it all in our faces, gloating that he could publicly shoot someone and get away with it.  He was right.  He could violate any law, any rule of decency and civility, and we would still elect him to the highest office in our country, the most powerful in the world, even handing him complete power through a party that collectively refused to repudiate him and ensure his defeat. 

In fact, his candidacy was the natural result of that party's growing evolution over the years to refuse to govern, to block all initiatives (while blaming gridlock on the party in the White House), and to decline to exercise its constitutional duties, including a hearing for a Supreme Court nominee.  It was even gathering momentum to deny any nominee of the opposing party a position on the Court had it won the election. Power was the goal, not respect for the law, the Constitution, or for the American traditions we have held up to the world as "great."  The American people, rather than rejecting this lawless behavior, have now rewarded and empowered it.  

The FBI probably tipped the election when it violated its own rules of investigative conduct.  FBI agents in New York, tight with Trump enabler Rudy Guiliani (who represents their association), let him know they were cooking up a "surprise" that would "turn this thing around."  And sure enough, they resurrected the non-existent email "crime" just in time to allow Trump to claim the entire week before the election that Clinton would be a president under indictment.  This was lawlessness from the premier law enforcement agency in the U.S., an entity that had worked so hard to resurrect its image from the dark days of J. Edgar Hoover.  Imagine this agency now in the hands of Trump and Guiliani.

That Trump had the enthusiasm and votes of bigots and haters is indisputable.  He gave them voice, enabled and encouraged their venom and disdain for civility at his rallies, on their t-shirts and bumper stickers, and in their vile chants and slogans.

But they didn't elect him.  No, the decent people of America elected him, the ones who rationalized his behavior, who felt that Obamacare or liberal policies or economic pain or whatever personal grievance they had with the status quo outweighed the threat he clearly posed to the American rule of law.  Someone said before the election that this would be both a test of the American IQ and a look in the mirror.  What we see is a country, the self-proclaimed "greatest", willing to sacrifice its traditions and ideals and hand over the keys to a man who "alone can fix" their problems, who not only admires totalitarian figures, but behaves like one in his rejection of civil and legal boundaries.

The key to rationalizing a vote for Trump, a non-vote for Clinton, or not voting at all, all of which elected Trump, was the notion that his opponent was "just as bad," a corrupt criminal and liar who at best could not be trusted and at worst belonged in jail.  To talk about Trump with a Trump enabler was to get a giant dose of "But Hillary..."  Voters who ignored the documented facts about Trump also chose to believe the unsupported accusations about Clinton.

I was sure that my uncle, an educated, intelligent conservative with a wide knowledge of history would vote for Clinton. Wrong.  "She's a crook!" he practically shouted to me. "She stole money in Arkansas and Washington."  No, she didn't.  For partisan reasons he refuses to accept that years of investigations yielded no proof whatsoever. Another thoughtful man told me that Clinton was a "pathological liar" and pointed me to a New York Times story documenting that her Foundation paid for her daughter Chelsea's wedding. Except no such Times story existed.  He cited an unproved accusation from rag journalism derived from the leaked email of a person hostile to Chelsea. That about sums up what people were willing to believe.

Over and over again, this candidate was persecuted with multiple investigations for the stated purpose of taking her down politically, and people chose to ignore both the intent of these investigations and the lack of evidence that they yielded.  It's the game of making the accusation so many times it sticks, even without facts, and tires voters of a candidate. The actual evidence was that Clinton was a dedicated, tireless public servant, found by professional fact-checkers to be more accurate than most politicians, but twisted by political enemies into some kind of lying criminal.  Ordinary people heard the words "untrustworthy" and "untruthful" so many times that they internalized them and repeated them without being able to provide factual examples. 

The failure to follow the facts and the evidence, for whatever emotional reason the voters had, gave us Trump, a man with no respect for rules and laws.  Some want to blame Clinton, others the media. But the blame falls squarely on every Trump voter and those who claimed their "conscience" would not let them vote for Clinton.  Their conscience placed politics or ideology higher than country. 

The German people once put in power a man who appealed to their basest instincts.  He played to racial hatred and resentment (the Jews) and to economic anger caused by the post WWI Versailles treaty.  He created political scapegoats. He was the savior who would fix things.  And the people who elected him (and the politicians who enabled him) were not the ignorant people he incited to rally for him, but the decent people of Germany who peacefully handed over their power.  Someone said to my nephew, who was upset about Trump, "It won't be that bad.  He's not really going to do the stuff" that he said he would. Just what the good Germans of the 1930s told themselves.  

The test of our judgment and character is not upon what happens over the next four years, but rather on the risk we took now.  We elected a mendacious bully of a man who has spit on the law and on civilized discourse between Americans.  We adopted the Hitler blueprint for electing someone who could be "that bad", a blueprint that uses demagoguery and the Big Lie, plays on hatred and resentment, and depends on Americans who are too partisan, too lazy or too ignorant to ensure that we place the rule of law before political policies.  We just proved that we are as willing as any other country to put our cherished freedoms into the hands of an authoritarian.  We have given the greatest possible power to a man who has always done what he can get away with, and who, we can be sure, will use the White House for the same lawless purposes to whatever extent that he can. 

I have tried in my blog to stick to criminal justice issues, the field of my expertise. But I will have some more things to say on this election that comes from my experience in criminal justice, insights regarding race and gender that I think influenced the behavior of voters.  Reasons why I, as a prosecutor, was sometimes frustrated in my job when facts and evidence were rejected by juries.

But no lost case was as big as this.  Kathleen Parker, a conservative columnist, wrote on the eve of the election that no matter who was elected, America would still be great.  She was dead wrong.  A country that could elect a Donald Trump is not great. Our greatness does not depend upon military might or economic power.  It depends, as we have boasted to the world, on our democracy, on our tolerance for those who both look and think differently, for our unique institutions, for our checks and balances, and on our respect for the law no matter what.

When mobs tried to prevent court ordered school integration in Little Rock, Arkansas, it was Republican Dwight Eisenhower who called out the National Guard to enforce the law.  Secessionist sympathizers once attended a White House dinner with their southern Democratic party leader and President, Andrew Jackson.  They were toasting to state's rights, and looked to Jackson for encouragement. Instead he toasted: "To the Union: may it be preserved."

We won't see such commitment to law and country from our president-elect.  That makes us, to use his term, losers.      

Tuesday, October 4, 2016

Birds of a Feather

The editorial writers of the Baltimore Sun decided early on that neither facts nor fairness could impede their view of what happened to Freddie Gray last year.  

They lauded State's Attorney Marilyn Mosby for her hasty criminal charges, despite the objective view of professionals who recognized the incompetence of her process.

They defended her every step of the way, even as her cases fell apart.  They thought it just fine to ruin the lives and careers of six police officers and threaten their freedom in order to "air out" facts that would have been better explored through proper use of a grand jury.  They failed, from beginning to end, to acknowledge the duty of a prosecutor to follow the facts and the law wherever they led, a failing they shared with Mosby.

And now, in today's editorial, they essentially call for Police Commissioner Kevin Davis to fire, as quickly as possible, the Baltimore Six. Here's why:

  • Three of them were honored by a right wing media group.  
  • All six caused Gray's death through their "callous" actions.  
I thought newspapers were supposed to be bastions for freedom of speech and association, but I guess that only applies to liberals.  Do I find the Media Research Center offensive?  Yes, I do.  Do I understand why the three attended?  Probably because their lives had been a living hell for more than a year.  Probably because they were driven towards a group that didn't hate them, as they had been hated for so long by so many.  

As for their responsibility for Gray's death, they were exonerated by Judge Barry Williams, who did not find evidence of misconduct let alone homicide.  The Sun doesn't know what Sgt. Alicia White did or didn't do, since she never came to trial.  But the Sun wants her fired, too, along with William Porter, who tried to assist Gray, and van driver Caesar Goodson, who checked on Gray multiple times.  None of these three were feted by the Media Research Center, but apparently don't deserve to be "patrolling the streets of Baltimore" either.  

If the Sun wants to take the position that the Police Department as an entity was callous, I get it. Police leaders could have ensured working cameras in vans, better restraint equipment and practices, and consistent enforcement of procedures.  Improvements like these always seem to get done after tragic accidents, hindsight over foresight.  One might also ask, where were the Sun's investigative reporters and crusading editors before Gray's death?  Why did they wait until he died to dig up evidence of inconsistent seat belt practices and defendants arriving injured at Central Booking? Because the media, like most of the world, is reactive, responding with reforms only after tragedies. But the media gets to act holier-than-thou, the first to seek out who to blame.  

The Sun demands its pound of flesh from these six even though the evidence was clear that they acted reasonably within the context of their training and actual experience. It could have been any officer acting that day with the same result.  Hurry up, the Sun demands of Police Commissioner Kevin Davis, even though outside police agencies are the ones investigating the officers.  It can't "fathom" what is left to investigate.

Neither could Mosby, when she sensationally announced her charges.  No wonder the Sun approved her actions.  The two make a perfect pair.  In their zeal for social justice, the "justice" part doesn't matter.

More Bad Journalism

Wil Hylton's article for the NY Times Magazine, referenced in the Sun's editorial, represents another example of bias disguised as journalism.  Entitled "Baltimore v. Marilyn Mosby" it could more appropriately be entitled, "Mosby's Lame Explanation Unchallenged."  Hylton hob-nobs with the Mosbys, so much so that they let themselves into his home and pour themselves some of his wine. Yet he purports to write a journalistic piece about Mosby's  decision to charge the Baltimore Six, treating us to a self-justifying Mosby narrative that blames police obstructionism for her actions. Even if true (which I doubt), Mosby had the grand jury at her disposal to properly investigate the case herself. 

Hylton's main disagreement with Mosby centers on Gray's injuries: he diagnosed Gray (from a video) as being injured before he got into the van.  Ironically,  the one point on which Mosby and all the experts seemed to agree upon is that the injury occurred inside the van.  But Hylton's personal, unscientific diagnosis led him to the same conclusions as Mosby - and his wholly sympathetic, uncritical treatment of her.

Disclosure:  Hylton called me while working on the piece. He didn't use a thing I said, other than that the attrition rate from Mosby's office is high.  But he did leave a clue as to how he writes.  When I was trying hard to stick to facts and statements that I could support, he told me not to worry, that the standards for magazine pieces were looser. 

And so he delivered a lazy, chummy piece gobbled up by those with the same point of view as Hylton. But the real Mosby shone through anyway, exposing the same arrogance and temperament we saw when Mosby ranted after dropping her cases. A Mosby who, during the riots that followed Gray's death, called up, reamed out, and hung up on Baltimore's mayor.

But Dan Rodricks tells that part of it better.  Check it out

Thursday, September 22, 2016

The Destruction of the Baltimore State's Attorney's Office

With the record number of killings in Baltimore these past 18 months, it's easy to overlook just one more murder, one that won't appear in the stats: the snuffing out of the Baltimore prosecutor's office by its leader, Marilyn Mosby.

Mosby touted the law enforcement background of herself and her family members when running for State's Attorney. But upon taking office she immediately demonstrated her indifference to public safety by firing numerous prosecutors. One was in the middle of a trial. Who cares? Not Mosby. The case was promptly lost.

Another fired prosecutor, who probably had to counsel her when he was her supervisor (Mosby was a mediocre trial attorney known chiefly for yelling), had successfully tried numerous difficult homicide cases in his career.  They include the 1999 massacre of five women in a city rowhouse, and (ironically) the prosecution of a police officer for killing a suspect.  Despite his more than 30 years of experience and success, Mosby let him and others go in revenge for personal piques she developed in her own brief and lackluster career, which included no cases of any significance.  

Mosby followed her hatchet jobs with a memo written by deputy Michael Schatzow - who had no experience as a city prosecutor and was less than two months into the job - stating that prosecutors were now "expected and encouraged to consider plea negotiations...that include a supervised term of probation with...mental health counseling or...drug treatment program."  In other words, open the jail doors and let 'em out.  Schatzow is apparently unaware of how limited treatment slots are and how failing to participate in treatment is rarely sanctioned. 

Now I don't oppose treatment for appropriate offenders, if they actually participate.  And Schatzow emphasized that this policy was for "non-violent offenders" committing "non-violent" crimes.  But therein lies the rub.  I began my blog with an indictment of the criminal justice system for its failure to identify and appropriately handle persons who were major threats to public safety.  And Schatzow's memo gave prosecutors no guidance whatsoever, leaving it to the eye of the beholder.  Under Mosby's clueless policy, a person dealing drugs with a dropped attempted murder charge and a separate handgun case in his background could be considered a non-violent criminal committing a non-violent crime, when in fact he poses a dangerous threat to Baltimore.

Then came the Freddie Gray fiasco, when Mosby signaled to the entire world that her focus was not upon crime but upon evening the score with police, even if it meant elevating an accidental death into a murder case.  She called the looters and batterers of police in the Baltimore riots "our children" and lashed out angrily when her non-existent case collapsed.  Would that she showed such passion for the victims of shootings and murders, and for the children who live their lives in daily risk of violence.  

Following the Freddie Gray trials a packet arrived at my doorstep containing police notes and emails between Mosby's office and a police investigator. These notes contained material that had already been publicly revealed (tension between police and prosecutors, Deputy State's Attorney Janice Bledsoe's indifference to any facts that did not support her theory of the case.)  But the series of questions posed in the anonymous note revealed the profound lack of trust in Mosby by her prosecutors. Examples:

  • Did Jan Bledsoe and [homicide team leader] Lisa Goldberg meet privately with the medical examiner and encourage the ME to change her conclusion and rule it a homicide...
  • Did the head of homicide...object to the charging decision and refuse to attend announcement of charges? Did most people in office agree..that charging was based on politics, not evidence, but have been warned that they will be fired if Marilyn found out?
  • Was Bledsoe's partner (Jayne Miller) given special access to Donta Allen [who rode in the transport vehicle with Gray] who changed his original story during Jayne's interview?
  • This is the most embarrassing prosecutor's office in the country.  What example are its leaders setting? And in the biggest case ever.  Mike, Jan, just go back to private practice, make your money and let people who care not about politics but about the city and fighting crime and doing justice get back to work.
Mosby continues to drive this level of demoralization downward.  She has been hiring career public defenders and defense attorneys to help her run the office (which is top heavy with administrators and low on trial attorneys.  Oh, wait, she doesn't need trial attorneys in her plea-bargain environment.)  The latest example is Valda Ricks, who after 25 years as a public defender is now Chief of Operations for Mosby.  As one ex-prosecutor said, Are you kidding me? Ricks is a nice person who stuck around long enough in her office to get promoted but was never any kind of special talent.  And she certainly never walked in the shoes of a prosecutor, yet now is running much of the show. (Think of the job Schatzow and Bledsoe have done, two other non-prosecutors.)  

Mosby has essentially told her staff two things:  none of you are qualified for this job, and I want us to be more like public defenders than prosecutors.

Perhaps she's right that there aren't any qualified city prosecutors left to be Chief of Operations.  By one attorney's count, 64 prosecutors have been fired or quit since Mosby took over.  That's an extraordinary level of attrition, averaging more than 3 per month, which has left her stripped of experience.  And Mosby can't attract experience from other prosecutor offices after demonstrating her incompetence, arrogance, and subversion of a prosecutor's duty in the Freddie Gray case.

One might think that she has no choice but to turn to former public defenders, but I think she's happy with that. Mosby sees herself as the Robin Hood of the criminal justice system, except that instead of stealing from the rich and giving to the poor, her cause is to rescue criminal defendants from the oppression of the criminal justice system (and society) and stick it to those who protect public safety.

The job of defense attorneys is to defend the rights and interests of individual defendants.  Prosecutors, consistent with the law and ethical standards, are charged with ensuring public safety for all citizens.  Mosby is more interested in the former than the latter, which puts her in the wrong job.  The criminal justice system is predicated on advocacy from two points of view, guided by the law and moderated by the judiciary. Transforming the prosecutor's office into an extension of the public defender imperils public safety.  Dangerous offenders turned back onto the street through toothless probations or incompetent prosecutions will continue to prey on - guess what - our children. 

Mosby busted up morale in the police department with her unfounded criminal charges in the Freddie Gray case.   She has simultaneously destroyed the morale of her own office and caused crippling attrition. The damage caused by one woman is truly shocking.

With the two agencies that are responsible for public safety teetering on the edge, Baltimore's crime numbers are sky high and will get worse before they get better.  The question really is, will they ever get better.