Wednesday, July 20, 2016

A Media That Still Doesn't Get It

She gets points for airing it out it court.
So said Fraser Smith on WYPR this morning, referring to State's Attorney Marilyn Mosby and her prosecution of six police officers following the death of Freddie Gray.

Meanwhile an attorney and law professor, John Banzhaf, has filed multiple complaints with the Attorney Greivance Commission against Mosby and her trial team, arguing that the exact same conduct deserves censure and disbarment.  

Who's right?  In principle, if not in sanction, Banzhaf.  Mosby will certainly be reprimanded for her press conference announcing charges last year, for which there is ample precedent (former State's Attorney Doug Gansler of Montgomery County got in trouble for his press conferences.)  And the more she continues with these trials, despite the rejection of all her theories of a crime by Judge Barry Williams, the more she risks further sanctions.

Prosecutors do not get points for "airing" issues through unfounded criminal trials, trials that ruin people's lives and cost citizens precious tax dollars and use of criminal justice resources.  They deserve rebuke. 

Prosecutors are charged with following the evidence and the law wherever it takes them.  Trials for political purposes threaten the very foundation of the criminal justice system.  One cannot watch or read To Kill a Mockingbird without feeling sick to one's stomach.  From a prosecutor's point of view, how is this different?  How does one justify doing what Mosby and her team did - inventing new theories of crime, claiming facts they can't prove - to paint six individuals as criminals for what, at worst, was a police department failing in transportation procedures?  Injustice is injustice, and when a prosecutor perpetuates it by pandering to a mentality - be it racist, anti-police, or whatever the point of view - we all lose. 

If an "airing out" of what happened was necessary, Mosby had the example of the Ferguson prosecutor:  do a thorough investigation using the grand jury, explain the evidence vis-a-vis the law, and make all those records public. That prosecutor was then backed up by a federal investigation, because he did it the right way. People can still argue about the implications of the evidence, like they are doing now in the Gray acquittals. And Gray's death itself has led to new procedures for the police department.  We didn't need these baseless criminal cases to spur reforms, throwing six people with careers and families to the wolves.

My stomach turns when I see hypocrites like Doug Colbert on the news every night, relishing what Mosby and his buddy Schatzow are doing, when he would be screaming from the mountain tops had the defendants been poor African Americans rather than police officers.  Anyone sitting in a law professor's chair, who advocates injustice for any reason, disgraces his profession. Colbert is a stain on the University of Maryland School of Law.  

I don't read Fraser Smith, the Baltimore Sun, or the Washington Post (which is also loathe to criticize Mosby) as enjoying what Mosby is doing, like Colbert does.  But they are just as ignorant when they excuse her conduct and give her points for effort.  

Mosby's initial press conference was unethical for a prosecutor by announcing her sympathy with the rioters and her intention to get the justice that they wanted, not what justice demanded.  

Mosby lied when she said she used the Sheriff's office to investigate what happened.  She paid no attention to the internal police investigation.  She failed to use the Grand Jury to investigate.  Her "parallel investigation" was rushed and superficial.  Her failure to properly investigate and analyze both the factual and legal aspects of what happened to Gray led to fancy footwork and legal creativity to keep the cases going, but ultimately the sound rejection of her charges.  

I am not interested in hearing from media outlets that never met a police officer who did anything wrong.  I want to hear from WYPR, from the Sun, from the Post, that injustice does not serve justice.  That "airing it out in court" is not a reason to drag six individuals and the city through trials.  That Mosby's inexperience, and her failure to use career prosecutors to advise her, led to an unnecessary and unfair spectacle that has undermined trust in her office and the criminal justice system. 

But I won't be holding my breath while I'm waiting to hear it. 

Thursday, June 23, 2016

Sanity and Justice At Last

Now I will say it:  Judge Barry Williams was brave in acquitting Officer Caesar Goodson in the death of Freddie Gray.  One might say that he merely did his job, but some jobs are performed under higher pressure and scrutiny than others.

I first became concerned about his succumbing to pressure when he refused to move the Freddie Gray trials out of Baltimore.  The head of the local NAACP, Tessa Hill-Aston, best illustrated the problem after the Goodson verdict when she opined that a jury would have found Goodson guilty because of their "emotions."  Plenty of jurors in the mistrial of William Porter were moved emotionally to convict him. These trials belonged elsewhere.

Then Judge Williams repeatedly failed to dismiss charges after prosecutors presented their cases against Porter, Edward Nero, and Goodson despite the woeful lack of evidence.  But in the end, when he had to make the most important decision of the Freddie Gray trials, Judge Williams properly applied the law to the evidence and acquitted Goodson of all charges.  He deserves props for this, because plenty of people succumb to political pressure.

No props go to Marilyn Mosby, who turned in a disgraceful performance and made Williams' job so much easier.  Some give Mosby credit for "trying," and do not believe that Goodson's and Nero's acquittals reflect on the appropriateness of her bringing charges.  On the contrary, these verdicts say all we need to know about Mosby's ethics, competency, and the damage she has inflicted upon public safety and the criminal justice system. She announced that her mission was to get justice "for Freddie Gray," not to get justice. She spent less than two weeks investigating his death, ignoring the police detectives and lying about using the sheriff's office as investigators.  She elevated a negligence claim into a murder case, such that too many now think that there's been no "accountability" for Gray's death despite a $6 million settlement.  She claimed officers should not have arrested Gray because the knife he carried was legal, when it wasn't.  She never mentioned a rough ride in her initial charges, then realized late in the game that she needed one to convict for murder.  And the evidence she presented was that Goodson took a wide right turn and then got out of his van. Pathetic does not even describe Mosby's case.

Mosby has accomplished three things in this sorry saga:
  • She raised false expectations for police accountability, such that many who already feel short-changed by the criminal justice system have yet another example of a system that doesn't work. (In fact, it worked perfectly to expose her case.)
  • Mosby demonstrated that she is a political creature who is not to be trusted with the job of following the evidence wherever it leads, the first duty of the State's Attorney.  So while some who already distrusted the "system" have more reason to do, many others have a new (and well-founded) distrust of Baltimore's prosecutor.
  • Citizens of Baltimore are less safe because Mosby's reckless charges have caused individual police officers to step back from proactive policing.
I had hoped not to hear any more drivel from the Baltimore Sun or anyone else unfamiliar with the ethical duty of a prosecutor.  But immediately after the verdict the Sun's editors wrote this:
We give [Mosby] the benefit of the doubt that she and her deputies believed they had a real case.  Indeed, it’s worth noting that Ms. Mosby’s office chose not to present to a grand jury the false imprisonment charges against three officers that she had initially announced. As the facts became clearer, prosecutors adjusted course.
Astonishing.  That they would point to one dropped misdemeanor charge in the midst of an invented murder case as evidence of Mosby's good faith is all we need to know about the Sun's ability to assess her performance. Mosby rushed her investigation for political purposes, ignored any facts that did not support her desire to file criminal charges, and constantly changed theories of criminal liability to give her case legs.  The only thing that became "clearer" about the facts was that no crime was committed, yet she forged ahead.  Sun, give it up.

I will write a wrap-up piece somewhere down the road, when all the cases finally finish.  Let's hope that's sooner rather than later.  If Goodson, the van driver, is not guilty, none of the officers are.  But our Three Blind Mice still get to decide whether we have to endure more of their folly.

Thursday, June 16, 2016

Three Blind Mice

The trial of Caesar Goodson, the police officer who drove the van in which Freddie Gray suffered his fatal injury, amplifies what the acquittal of Edward Nero already proved: State's Attorney Marilyn Mosby and her trial prosecutors, Michael Schatzow and Janice Bledsoe, are so completely blinded by their determination to pin Gray's death on a cop that they cannot see how patently ridiculous their cases look.  

We already know that they lack the ethics that prosecutors are supposed to have, announcing ahead of time (Mosby) that they will get justice for Gray and ignoring all evidence that contradicts their theory of the case.  They will even argue legal positions that other prosecutors in their office oppose to get what they want.  But to announce what they will prove in court and then prove the opposite reveals a level of obliviousness to the facts and indifference to the truth that would be comical if not so scary. 

Schatzow promised evidence of a rough ride by Goodson. What did he present?  Evidence that Goodson did not provide a rough ride.  He promised evidence that Nero assaulted Gray when he arrested him. What did he produce? Evidence that Nero didn't even arrest him.  And they don't seem to see this.  They argue their cases as though this was some law school moot court, not as prosecutors with the ethical duty to impartially assess the facts.

The original probable cause statement produced by these three prosecutors was on its face so lacking in grounds for criminal charges that professional observers believed that there had to be more.  What we have learned is that there is less.  And yet Mosby, Schatzow and Bledsoe continue on, enabled by a judge who refused to change the location of the trials (as he should have) and remains reluctant to dismiss charges for which the state fails to prove each element of the crimes alleged.

Goodson should be acquitted, hands down.  And as the officer with the most serious charges, his acquittal should finally send a message to Mosby and Co. that it's time to stop spinning around on their mouse wheel.   

But I wouldn't bet on it.  To put on the cases these three have manufactured, at such cost to the city (in public safety, morale, and money), they must suffer from permanent blindness.  

Splashy, but Irrelevant

The showdown that went down in court Thursday between lead prosecutor Michael Schatzow and lead police investigator Dawnyell Jones may have entertained journalists and spectators, but it's ultimately meaningless.

Carol Allan, the assistant medical examiner who examined Gray's body, ruled his death a homicide. Jones said that Allan first called it a "freakish accident."  My own personal view is that no M.E. would have called it a homicide unless led by the nose by prosecutors.  What Jones alleged that Allan said - "no human hands can cause this [injury]" -- was factually true.  No police officer beat up Gray.  Allan was prompted by Mosby's team to call it a homicide, but she applied a legal theory that wasn't for her to decide.  All the M.E. can do is tell us what physically caused a death.  The legal characterization of that cause is someone else's responsibility.

So the sideshow over what Allan really thought or really said doesn't matter, as Judge Williams well knows.  I am surprised he just didn't say so, since he is the one charged with rendering the verdict. On second thought, I shouldn't be surprised about anything anymore when it comes to the Freddie Gray case.