Monday, October 19, 2015

A Judge Influenced

The decision of Judge Barry Williams to keep the trials of the six police officers charged inthe death of Freddie Gray in Baltimore City demonstrates that judges, too, are human.

Billy Murphy, the lawyer for the Gray family, called Judge Williams’ decision “brave.”  I would say that his decision reflects a judge who is not afraid of hard work but who was nonetheless influenced by political and cultural circumstances.

Legally speaking, Judge Williams should have moved the trials out of Baltimore.  If ever there was a set of circumstances for changing venue, this was it.  Not because of the publicity but because of the riots that followed in the wake of Gray’s funeral, riots that specifically affected Baltimore city only.  Those riots were credited by many with the decision of Baltimore prosecutor Marilyn Mosby to hastily charge six police officers with criminal charges, including murder, despite the fact that nothing in her probable cause statement or the autopsy report supported murder.  If the top prosecutor, whose sole job it is to follow the facts and the evidence, was influenced by the unrest, wouldn’t the citizens of Baltimore be similarly influenced?

Had Judge Williams moved the case out of Baltimore, no appeals court would have reversed him.  If ever a case called for removal to another county, this was it.  The Maryland Rule for change of venue states that a case should be moved if there is “reasonable ground” to believe that a defendant cannot receive a fair and impartial trial.  Of course there is reasonable ground to believe this considering the rioting, destruction and continuing protests. If this case does not qualify, then the rule has no meaning.  In a case in which riots erupted after police shot a fleeing suspect, a Florida appeals court had no hesitation in reversing a trial judge who, like Judge Williams, failed to move the case.  The court was seriously concerned about the jury’s ability to disregard the consequences of their verdict.

By deciding to keep the case in Baltimore, Judge Williams has created a substantial argument for reversal, something that trial judges try – or should try – to avoid for the sake of all parties.  He would have faced zero chance of reversal had he changed the trial location.  

Judge Williams has proved that he will work hard.  A number of lazy Baltimore judges would have moved the case just to get out of the work this case entails.  Nevertheless, those lazy judges would have been legally correct. 

Judge Williams seems to think that he can find an impartial jury through voir dire, the process by which potential jurors are questioned for their suitability.  But Baltimore city voir dire is pretty superficial.  Any citizen trying to get on the jury because they already have a point of view, or who is afraid of future rioting if they acquit, is highly unlikely to be detected, unless Judge Williams plans to fundamentally alter the way voir dire is conducted in Baltimore.  Even then, detecting a subconscious fear is difficult to do.

I believe that by working so hard to keep the case in the city, Judge Williams is demonstrating that he, the judge, is influenced by concerns of violence.  To be honest, before he ruled, I had hoped that the case would be tried in the city.  The autopsy report has made it reasonably clear that Gray’s death was a tragic accident, and that Mosby is prosecuting the police officers for political reasons.  If so, then I wanted city jurors to give Mosby and the citizens of Baltimore that message, so that the verdict could not be blamed upon racism or the failure of the criminal justice system.

But after Judge Williams’ ruling, I felt a sickness in the pit of my stomach.  I let it sit there a while to figure out what it was.  Did I think Baltimore jurors incapable of rendering a fair verdict, and that the defendants would be criminally convicted in a case that was, at best, negligence?  No. Because with a good judge, I don’t think that will happen (unless there is evidence of which I am still unaware.)

It’s that I fear that the judge is influenced by extra-judicial concerns, that he is afraid of the consequences should he make an unpopular ruling.  And if he isn’t making the correct legal rulings, we can’t expect a jury to properly apply the law to the facts, either.

There will be other opportunities for Judge Williams to make rulings that will be “brave” – that is, to fly in the face of those demanding conviction when the facts and the law call for it.

We will see whether Judge Williams is up to the task.  But for now, I feel that pit in my stomach. 

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.  


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.  


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.