Monday, May 18, 2015

Trading Ethics for Politics

I said previously that Baltimore State's Attorney Marilyn Mosby's haste in charging six police officers reflected "inexperience, recklessness, political ambition or all of the above."  The evidence is  mounting.  It's all of the above.

I already discussed Mosby's failure to use the important tools available to her that any competent prosecutor would have taken.  I was willing to believe that this reckless failure stemmed from inexperience.  

But her press conference was troubling in how far it strayed from a prosecutor's duty.  She addressed herself to protesters across the country, embraced their cause, called for sociological change, promised justice for the young and for Freddie Gray.  In her own words:

"To the people of Baltimore and the demonstrators across America: I heard your call for ‘No justice, no peace.’ Your peace is sincerely needed as I work to deliver justice on behalf of this young man...
Last but certainly not least, to the youth of the city. I will seek justice on your behalf. This is a moment. This is your moment. Let’s insure we have peaceful and productive rallies that will develop structural and systemic changes for generations to come. You’re at the forefront of this cause and as young people, our time is now.”  
These words, together with her demeanor, drew praise from newspaper editors, TV reviewers and many in the public. But they were the words of a politician, not a prosecutor. As a prosecutor her performance was awful, violating her ethical duty and generating suspicion that her charges were political. 

Then we learned that Mosby gave a speech while she was conducting her own "parallel" investigation into Freddie Gray's death, a speech in which she touched on themes of racial injustice and frustration, chastised those who called the looters "thugs" (they are "our children"), and promised that "we will pursue justice by and any all means necessary."

By and all means necessary.  So much for the confines of the law.  And what justice was she referring to?  Social justice, through the prosecutor's office?  This speech was made before her own investigation was complete.  Mosby handed the defendants in the Freddie Gray case the ammunition to claim she is politically prosecuting them.    

And she keeps on doing it.  She took a star turn on the stage of a Prince concert while he was singing a song about Freddie Gray.  More theatre.  More politics.  

Now the Daily Record reports that another defendant is challenging Mosby's impartiality.  Last year two police officers were charged with animal cruelty in the death of a dog.  They both were waiting for trial, but on the same day that Mosby took her oath of office, one case was dismissed. That case was handled by the office of Billy Murphy, the same Billy Murphy who represents the family of Freddie Gray.  Murphy not only was a visible and active Mosby campaign supporter but he served on her transition team.  

Mosby's office claimed that the dismissal was based on "developments" in an "ongoing investigation."  But there was no ongoing investigation.  In fact, the only new evidence produced in the months before the dismissal was a report that implicated the officer represented by Murphy's office.  

It has stink all over it, the strong smell of a favor delivered upon taking office. We are used to politicians horse trading. But prosecutors?  It's downright frightening.  Another example of her personal interest at work also came upon taking office, when she fired a prosecutor in the middle of a trial.  Revenge over justice, too, as she cared not one whit about the result in the case. 
Mosby is in the wrong  office.  Once elected as State's Attorney, she had to abide by ethical rules that she repeatedly ignores.  Instead of instilling confidence that she will follow the evidence wherever it leads, she spreads the message that she has a social cause and will take "any means" to further it.  She already used her power to charge crimes that are not supported by her own version of events in the death of Freddie Gray.  Now we have the appearance of her dismissing charges for benefactors.  

Politicians can lead wherever they choose.  But unless prosecutors are bulwarks against politics in the criminal justice system, that system fails.  


Let me recommend two excellent pieces recently published by the Sun that will help enlighten those interested in learning more about the system. 

First, a former police officer turned lawyer explains why public and internal agency pressure to perform results in poor relationships between some communities and the police.  

Second, two former federal prosecutors write that Mosby has a second chance to get the charges right, and put the criminal justice system back on track.  

Monday, May 4, 2015

Baltimore's Hasty Prosecutor

Baltimore State’s Attorney Marilyn Mosby’s  “quick” and “decisive” action in charging six Baltimore police officers a mere two weeks after the death of Freddie Gray reflects inexperience, recklessness, political ambition, or all of the above. 

Alan Dershowicz, the noted defense attorney, sharply criticized her for using her charging power as “crowd control.”    John Banzahf, a George Washington University law professor, predicted the eventual dismissal of most if not all the charges.  The breadth of the charges, Mosby’s overreaching, is all-too-obvious. 

Any prosecutor interested in the truth and in justice would have used all the tools at her disposal to find them.  She has perhaps the most experienced homicide prosecutor in the state of Maryland as chief of her homicide unit, but did not ask him to investigate.  She had access to the completed police report only one day before filing charges. And she failed to make use of the Grand Jury to gather, probe and test the evidence before a group of average citizens. 

The Fraternal Office of Police called Mosby’s charges an “egregious rush to judgment.”  It smacks more of a calculated push to the spotlight, filing charges after a mere two weeks.  She conducted her own “parallel” investigation using her police integrity unit (the only unit for which she fails to list a supervisor on her website.)  She received the autopsy report the same day as her press conference announcing the charges.  In her haste to step into the national limelight, she circumvented normal charging procedures by grabbing a member of the sheriff’s office to file them for her.  Her actions appeared calculated for maximum surprise and effect, and she got it.

But she was so hasty she drew up warrants for the wrong people.  And her arrest of two of the officers for making an illegal arrest was itself "illegal."  Had she taken the time to discuss it with the police department, she'd have avoided an embarrassing and unjust result.

Published ethical standards prohibit the use of a prosecutor’s powers for political or personal purposes.  They demand that prosecutors be fair and objective and protect the innocent.  Instead Mosby, without all of the evidence yet available to her, pandered to the protestors by saying she had "heard [their] call for 'no justice, no peace'" and promised to work for “justice” for Freddie Gray, an ethical violation for which a former prosecutor immediately blasted her.

For those who feel gratitude to Mosby because of the result - the stemming of the violence, the charging of police officers, etc.- their thinking is understandable but misguided.  Switch the players and the decision, for example.  Suppose Gregg Bernstein was still in office, and two weeks after Gray's death announced that he did not find criminal culpability. Wouldn't we all agree that he could not possibly have taken his time to reach the right result?  And would we not also be suspicious because his wife was a major player in police operations not long ago? People who approve of Mosby like the result, but the process is more important for the integrity of her office. We have to be able to trust that no matter what the top prosecutor will act without bias or influence, whether it be from a mob or a relative or a campaign supporter like the Gray family lawyer, Billy Murphy.  

Mosby has undermined the cause of justice rather than promoted it with her haste.  She has created an expectation of guilt and conviction.  But her own charging documents do not even support the most sensational charge of second degree murder, and they raise multiple points of doubt about other charges.  If no convictions occur, many will blame the system as unfair or unjust, when it may have been Mosby’s own lack of competence and/or ambition in bringing charges so quickly. However much her performance raises her to star status, she will have dealt a blow to the justice system.  

And she has created a new expectation in the city:  that police officers who arrest without what she considers to be probable cause (an often subjective standard) are subject not just to civil action (the current norm) but criminal action.  Mere mistakes, or judgments exercised under duress, can land them in the pokey. 

How about Mosby's own mistake?  Her case against the two arresting officers rests upon an "illegal" arrest.  She says the knife that Freddie Gray was carrying was legal.  But according to the Baltimore Sun, the police task force examined it and said the officers were indeed correct, the knife was spring-assisted and therefore prohibited.  If so, it was Mosby who made the "illegal" arrest, and could be charged under her own theory of "false imprisonment." And sued to boot, since she forfeited her immunity from civil action by doing the charging herself.   

If I were a Baltimore police officer, I’d be looking for another job immediately.  And as a Baltimore citizen, I may start looking for someplace else to live.   When the police cannot depend upon the state’s attorney to be as thorough, competent, non-political, and fair with them as she is supposed to be with all citizens, none of us will be safe.     

Thursday, July 17, 2014


Here is the highlight of my campaign for judge:

What a life-affirming moment, helping that mother duck get her nine ducklings across six lanes of traffic at Lee and Light Street in downtown Baltimore a few weeks before the primary election!  But what does that have to do with anything?

Last January I was getting ready to shut down my criminal justice blogging. I had written on most every topic, and the same old issues and themes were just repeating themselves.  And after six years away from the state's attorney's office, I felt I was losing my special insight into the system.  I didn't want to be just another mouth spouting off opinions.

Then I got a message from a friend asking me to run against Judge Alfred Nance, and I agreed.  I lost in the primary last month. I expected to lose, and perhaps that’s one reason I did.  But let me summarize once more my thoughts on those responsible for Nance’s continuance as a judge.

Governor Martin O’Malley. O’Malley had no business reappointing Nance. But that’s O’Malley, whose focus first and foremost is himself.  He built his early notoriety as a city crime fighter, using smoke, mirrors, Clintonesque personal energy, and the vacuum of other leadership. But he who deceives or sells out the public in small matters will do so in large matters. America, beware.

The Maryland Bar. By “bar” I refer to all the lawyers in the associations and committees and commissions who run the judicial selection, election and disciplinary process. Rather than hold judges to higher standards, they provide them more protection than ordinary employees. They won't distinguish between protecting the legitimate exercise of judicial discretion and shielding judges who misbehave and even commit crimes. Once a judge, always a judge, that’s their motto, and the people be damned.  They failed to remove Nance 13 years ago for harassing women, and watched him continue to misbehave.  After his re-appointment by a governor too busy running for president to care or risk controversy, they poured  money into Nance's re-election. They even lied for him, calling him “tested and trusted.”

The Media. What a difference in the media between my race for judge 16 years ago and now. Back then, even though I had not named my targeted judges and nothing negative was yet in the public record about them, I was interviewed by the editorial boards of the Sun and the Afro-American and by a reporter for the Jewish Times. Dan Rodricks of the Sun wrote a helpful column. 

This time, with Nance's rich public exposure and other leads to explore, nearly nothing was published about the contest subsequent to my announcement last February. The Sun printed one short article in June which briefly mentioned that Nance "once received an official reprimand for his treatment of women." It never touched on his continuing harassing and intemperate behavior, or explained why politicians blindly endorse the sitting judges. Even Rodricks, who complained in two post-election columns about citizens who don't vote, remained silent.  I called TV reporters and e-mailed editors, to no avail.  I shudder to think about the lack of media attention to issues of greater importance than Nance.  It's scary to realize how inadequately the press now covers local government.

The Voters. I was amazed how many people popped out of the woodwork to express their dismay with Nance after they heard I was running, people who had sat as prospective jurors in his courtroom: a man at my local dog park, a woman at work, a colleague of a friend, etc. None of them knew each other and all had the same opinion of Nance. Had more voters seen him in action, he'd be gone.  Had more voters done just a little bit of homework, he'd be living in retirement now.  But voters prefer to be fed their information, and they ate up the mailings from the Sitting Judges, who used Elijah Cummings as their champion for Democratic voters and Helen Bentley for Republicans. The man from the dog park called up Bentley and asked her why she was supporting Nance. She admitted that she didn’t even know him.  Most of us are just too busy to make a call like that, to work at voting.  Impressions, assumptions and inertia guide our decisions. As the saying goes, in a democracy people get the government they deserve.

The Candidate. Most successful candidates really want the jobs they seek. I saw it as a duty, albeit self-appointed. Last time I ran, the sitting judges pressured the state's attorney, my boss, to make me take a leave of absence from work, something she had originally assured me I would not have to do.  So, unpaid and with nothing else to do, I walked neighborhoods and raised a little money and printed yard signs and literature and went to farmer’s markets and candidate forums. I lost to the money and influence of the sitting judges. 

This time I had a teenage son and an aging mother and a full-time job, so I primarily used direct mail to a targeted audience that I could afford to reach (with my own money and a couple of contributions.) I lost again, though it was gratifying to wake up to the Sun's "Circuit Court races too close to call."  In hindsight, I could have done this or that and maybe gotten a few more votes to at least get past the primary.  Raising money is the number one thing, both to reach voters and get the media to take a candidate seriously. (No money, no press.)  But I couldn't even ask a prospective voter for a glass of water on a blazing hot day, let alone for money. Not a winning characteristic for a candidate.

And now back to the ducklings. I don’t know what happened to those nine after they reached the Inner Harbor. They were so tiny! Some surely perished, maybe most of them.

But I tried. That is what I have always done. I have tried to do my best in every endeavor. I have tried to make a difference and tell the truth.   I risked my own career to say and do what I thought was right, and made enemies of people who didn't like what I said or how I said it, even when they admitted the truth of it. As a supervisor once told me, I didn't have a self-preservation bone in my body. I have made mistakes, and not always expressed myself in an ideal fashion.  One friend likes to say that our strongest attributes can also be our Achilles heel, and that probably applies to the passion that has always driven me.

But I am happy with both the journey and my destination.  I have learned so much that would have escaped me had I stayed in the box. I would rather be me than two judges I know who became closely tied to the O’Malleys. These two were indebted, personally and professionally, to a state official who helped them early in their careers.  When as governor O’Malley fired this official, neither of them could bring themselves to call and express their condolences.  And that is the way most of the world works. 

In my experience, it's not a particular program, or process, or structure that makes a system work well. It’s the people who run it and work in it. And where people are self-interested, lazy, or afraid, mediocrity reigns. And when there's mediocrity in leadership, nothing changes.

In 1998 a man named Sam, who judging from his voice was an elderly African American, called me up to ask why the sitting judges had crossed my name off their sample ballot (their standard trick.)  I started to explain that they were picked by the establishment, and called themselves “trusted,” but those of us in the system knew that wasn't true. He stopped me: “Say no more. You got my vote.” After I lost, I received flowers from some friends with a note: “And the winner is…the one who got Sam’s vote.”

Those who believe victory is everything would call me a sap or a loser, but I really did prefer Sam's vote. Sam made the effort to call. Sam understood that the establishment was not to be trusted in whole, and was willing to shake it up. I was proud to have his vote.

And I treasure friends like the ones who sent me that note, those who will never abandon a friend for self-interest or politics or differing points of view.  Each of you know who you are.

So, knowing that I have done my very best to serve the public all my life, I now retire from the world of criminal justice.  No more tilting at windmills.  

But I will still be tending to ducks whenever I can.