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.

Friday, August 5, 2016

Another Loss for Baltimore

When I read that Lisa Phelps had resigned from the Baltimore City State's Attorney's Office, I nearly cried.

Phelps is a wonderfully talented attorney who once told me (to my great joy) that she was a "lifer" - a career city prosecutor.  Talented "lifers" aren't easy to come by.  The best prosecutors tend to move on to the more lucrative private sector or the federal government after gaining experience in local criminal courts.  

Phelps was rapidly promoted within the office, so fast that it wasn't fair to her.  With high turnover during the first few years of her tenure, she moved up to felony jury trials before having the grounding most attorneys need to feel comfortable and competent.

But Phelps was up to it.  And by the time she resigned she was one of the few prosecutors I have known who could handle any case, however challenging, however complicated, however horrifying. The citizens of Baltimore were in the best of hands with Phelps on the job, trying to put away a dangerous criminal.

When her boss, Marilyn Mosby, announced that Phelps would lead the 'clean team' in the Freddie Gray police officer trials, I was surprised. Phelps was supposed to try the cases against Garrett Miller and William Porter, who had been forced by Mosby to testify against other officers. Phelps had to ensure that she did not use their prior testimony against them while still convicting them.

If anyone could do it Phelps could, which is undoubtedly why Mosby chose her.  My surprise was that Phelps thought a crime had been committed.  As it turns out, she didn't.

Professor John Banzhaf of The George Washington University wants to take credit for Phelps' resignation.  Banzhaf filed a complaint against Mosby with the attorney grievance commission and suggested that Phelps responded to his threat of disbarment.

Had Phelps resigned for that reason, it wouldn't be to Banzhaf's 'credit.' Baltimore just lost an extremely competent, highly dedicated, utterly professional prosecutor.  The opposite, in fact, of Mosby.

I haven't asked Phelps - she didn't make a public announcement and I don't intend to urge her to - but I know her character well enough to know that she didn't need Banzhaf to tell her her duty.  Forced by Mosby to take on a case no ethical prosecutor could try, she faced up to Mosby, unlike the toadies Mosby surrounds herself with during her press conferences.  (Anyone catch her rudely waving two of them to stand behind her before her rant against the criminal justice system?)

Phelps was supposed to try Miller and Porter.  Mosby dropped the cases. I can put two and two together. Perhaps Mosby also realized that the end had finally come, but I believe that Phelps helped her reach that conclusion.  It took a hell of a lot of guts to sacrifice one's job after 15 years of service and only 5 years away from a possible pension.  And sacrifice she did, because no one can work with Mosby after crossing her.  Mosby proved that when took her oath of office and immediately fired prosecutors she didn't like when they had been her co-workers.  

Mosby wrecked trust in the criminal justice system, undermined her own credibility, and helped to  drive up Baltimore's murder rate with her unfounded prosecutions. Now she has sabotaged her office's ability to take on tough cases with the loss of Phelps.

But Phelps keeps her conscience and her courage.  She was recently nominated for judge in Baltimore County, a job no one deserves more and I hope she gets. In the meantime, I am mourning the loss of one of the best advocates this city ever had.

Thank you, Lisa.