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, 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. 

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.