Wednesday, June 24, 2015

The Freddie Gray Autopsy Report, or What Mosby Wanted to Hide


Freddie Gray was arrested without injury and placed into a police van for transport. Once there he began physically shaking the van, so he was shackled and placed prone on the floor.  At some point he attempted to get up while the van was moving and suffered a fall that broke his neck, his judgment affected by the illegal drugs in his system. When officers realized he needed medical attention, they called for help.

The leaked autopsy report on Gray fully supports this theory of the case.  No wonder State's Attorney Marilyn Mosby wanted it kept from the public.  Far from being the damning conclusion of policy brutality and homicide, the report offers various scenarios of what happened, mostly pointing to a tragic accident.  The defense does not need to establish any one scenario. Just the plausible existence of any of them would prevent Mosby from proving criminal behavior beyond a reasonable doubt, without some other smoking gun.    

It's curious how the Medical Examiner's legal (not medical) conclusion of "homicide" coincides exactly with Mosby's theory of the case, despite the evidence of accident. Mosby had her charges ready to go before she even got the autopsy report.  Perhaps Mosby not only knew what was coming, but influenced the legal conclusion herself.  She then made sure to announce the legal conclusion to the world, but tried to hide the facts behind them.

Death by no seat belt or medical delay would ordinarily be a case headed for civil court. But Mosby, who announced her clear sympathy with those protesting police brutality, escalated the actual facts into a criminal case.   As State's Attorney, she was the one person in the Freddie Gray saga who absolutely had to free herself of preconceptions and politics and follow the evidence wherever it took her. Instead, she has destroyed her own credibility, devastated the effectiveness of the police department, and harmed six individuals irreparably. 

What to me remains most indicative of Mosby's mindset is her pursuit of the two arresting officers, who we now know for certain had nothing to do with Gray's death.  On duty after Mosby's office urged greater crime suppression in that exact location, these officers justifiably pursued someone who fled from them on sight, and with ample legal precedent behind them, took him down and patted for weapons.  By turning this into a crime, Mosby has told all police officers that they cannot do their jobs as they have been trained to do them. 

Mayor Stephanie Rawlings-Blake and Police Commissioner Leonard Batts are taking all the heat for the crime spike since Mosby charged the six officers.  No one locally wants to point the finger at Mosby.  I will.  It's mostly on her.  

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I was asked by a local journalist after the charges were announced whether the presence and experience of Michael Schatzow, one of Mosby's deputies, gave me any reassurance about the inexperienced Mosby.  Schatzow had been a partner at Venable, LLC and a federal prosecutor early in his career.  I replied no, that either Mosby was taking his advice or ignoring it.

I now conclude that Schatzow has enabled Mosby's incompetence.  She pointed to him as a lead on the investigations, and he is the one responding to defense motions and asking for gag orders.  He doesn't appear to know Fourth Amendment law or the elements of state crimes.  And while the defense attorneys are doing nothing unexpected or inappropriate in defending their clients, Schatzow is engaging in verbal pyrotechnics more consistent with a shouting match than a professionally conducted criminal case.  It's as though he thinks he can defeat the motions with nasty sarcasms rather than with evidence and the law.  

Mosby's website boasts of Schatzow's participation in a lawsuit that ordered Maryland taxpayers to foot the bill for lawyers at commissioner hearings.  The brief in that case used facts that were completely misleading. To quote Yogi Berra, it's deja vu all over again. The actual facts are not important to Team Mosby.  They are interested only in results that are consistent with their point of view.

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.  

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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.