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.

Thursday, July 28, 2016

Marilyn Mosby Revealed

When Baltimore State's Attorney Marilyn Mosby filed murder and other criminal charges against six police officers in the death of Freddie Gray last year many professional observers, including me, suspected she was politically ambitious, incompetent, reckless, inexperienced or all of the above.  Even ordinary citizens wondered at her speed and failure to use all the investigative tools at her disposal.

However, many were willing to give her the benefit of the doubt.  I understand that.  I have done that for leaders who I assume know more than I do, and I want to trust their competence and good faith.

Still, as it became more obvious even to laymen that Mosby's criminal cases weren't even close, many still refused to criticize her.  The editorial board of the Baltimore Sun, one of her chief apologists, still doesn't understand that a prosecutor's duty is to justice, that one cannot use criminal trials to air out facts or make a political statement without proof of a crime.  (Earth to Sun: Mosby could and should have used the Grand Jury to collect facts, properly apply the law to the facts, and then air the proceedings.) 

I wonder whether the Sun would have written the same editorial had they first watched Mosby's news conference. Angry, petulant, and stunningly unprofessional, she ranted about her grievances.  My highlights:
  • It was the police department's fault, they were biased. This after she boasted last year about her own "parallel" investigation, ignoring the official police report in making her decision to charge. (Of course, the public now knows that she didn't investigate anything using the sheriff's office as she falsely claimed she did.)
  • The police "unreasonably" chased Freddie Gray.  Except her own trial team had to concede that under the law police were justified in such a chase.  Where is the memo from Mosby to her prosecutors instructing them to ignore Supreme Court law in all the other cases her office prosecutes?  Hope she gets that out to the police department. 
  • A defendant shouldn't have the right to choose to be tried by a judge.  Oh-no-she-didn't Mosby insinuated that the judge was biased and now wants prosecutors to choose the factfinder, a breathtakingly arrogant proposal in light of her own overzealousness, from which these defendants were saved by an impartial judge.  Her "reform" - which would be opposed by minorities - will cost her any remaining credibility with the bar. 
After this rant Mosby refused to take questions, and she made the rounds of television appearances on condition that she couldn't be interviewed live. In other words, she wanted only to tell her angry story without facing up to legitimate scrutiny.  She's claiming credit for new police procedures and body cameras, reforms that didn't require phony criminal charges to make happen.  

What did Mosby really tell us yesterday?  That she's ethically blind and legally challenged, an immature, angry woman with a personal agenda who learned nothing about the law or her duties over the past year.  Last year she won heaps of praise for her poise and forcefulness.   
This time, shown at eye level on the street, she seemed smaller -- diminished, defensive and angry as she pointed fingers at others for the failure of her office to win convictions against any of the six officers charged. The Marilyn Mosby on my screen this morning seemed far less in control or powerfully righteous.
The Sun's David Zurawik, a Mosby admirer last year, went on to suggest that this was due to the "toll" the case had taken on her.  I don't think so.  She was angry last year, an anger that showed in her manner and seeped into her delivery.  As for toll, her staff did the hard work of the trials while she watched.  She is still angry, but this time in the embarrassment of failure, a failure she brought upon herself.

We saw the real Mosby yesterday, a scary sight for the citizens of Baltimore.  Many will think she "tried," they may credit her for "courage," but they are fooling themselves. We citizens will pay the price as Mosby's baseless prosecutions and poisonous press conferences make police officers back off from their duties, knowing that Mosby is looking to take them down even when they act in good faith.  Actually, as crime statistics and personal experiences attest, we already are.