Thursday, December 17, 2015

Our Baltimore Sun: Moralistic, Ideological and Wrong

The December 17th editorial from the Baltimore Sun, that once venerable institution, underscores all that's wrong with the prosecution of six police officers for the death of Freddie Gray.  These trials are about everything other than the commission of a crime.

For the Sun, the Freddie Gray trials are about police-community relations and economic and racial inequalities. And now, after the hung jury in the first trial, the Sun calls the result "a clear verdict on the police department."

Excuse me?  The jurors made no pronouncement at all.  The Sun, almost hilariously, reached that verdict, and did so on the basis of no seat belts and alleged failure to call medics. 

Let's leave aside the Sun's complete ignorance of the reality of the dangers on the street; it's decision to discard testimony that officers are bitten, kicked and spit upon when loading up prisoners; the testimony of Chief Timothy Longo, a highly respected former Baltimore Police commander and outgoing Chief of the Charlottesville, Va. police department, who testified firmly that it was reasonable to not place seat belts on prisoners in police vans; and the fact that no seat belts is the norm, not the exception, elsewhere in Maryland.

Let's ignore the fact that Freddie Gray, although healthy, went limp after his arrest, faking a problem; that many prisoners fake injuries, such that if the police responded to all the fakeries, neither they nor the medics nor the ERs would be able to properly handle other responsibilities.

Let's forget the compelling evidence that Gray was, in all probability, not injured until after the second-to-last stop, and that the officers could not have helped him earlier. Let's not comment on the prosecution and Sun's contention that the police should have called a medic when there were no signs of actual injury or distress, so that no future injury could occur.

Instead, let's examine the Sun's viewpoint:  that if the police create their own rule, and then fail to fully disseminate or obey that rule, they are criminally liable.

The Sun doesn't actually use that terminology.  Their verdict is a police department "rife with incompetence." Hmm.  The officers didn't sound incompetent to me.  It's just that street practice often differs from official directives. Officers clearly understand that they have discretion, without which they would be hamstrung.  One tragic, freak accident does not render them incompetent.    

But let's leave that discussion aside, too.  Because hidden behind the "incompetent" language is the real crux of the problem: The Sun thinks that the police department's internal rules carry the force of criminal laws, such that failure to follow those rules is tantamount to criminal acts if someone dies in police custody. Therefore, the Sun believes that the prosecution of these six police officers is warranted, proper and healthy for the city. 

Never have I heard such ignorant bunk, from a prosecutor or a newspaper. So caught up in the need to correct injustices, be they economic, racial, or the abuse of power,  State's Attorney Marilyn Mosby and her deputies Michael Schatzow and Janice Bledsoe, with the complete endorsement of the Baltimore Sun, abused their prosecutorial power and charged six persons who committed no crimes.

I said in my first blog on Freddie Gray, days after Mosby sensationally announced her charges, that she was setting up the false expectation that a crime was committed and that convictions would follow.  She showed only the weakest of evidence in her probable cause statement, and it got worse over time.  When the autopsy report revealed that she could not prove her case, the Sun said nothing.  NOTHING.  It had been moralizing and pronouncing legal judgments all over the place (see below), but went silent when the autopsy report made clear that an accident had occurred.  The editors never delved into, never elucidated for its readers, the difference between civil and criminal standards of conduct, but instead helped perpetuate the false belief that they were one and the same.  All it wanted after the autopsy report was leaked was for the trials to stay in Baltimore, where it was most likely that citizens would also confuse the issues. Take a quote from a citizen in the same edition as the editorial:  "The city gave the family all that money. They practically said [Porter] was guilty. How can the jury not find him guilty?"  And nearly every other quote from Baltimore citizens expressed surprise at the failure to convict. 

The Sun applauded these trials  even though it was plain that this was a civil, not a criminal case.  And even when the jury did not validate the Sun's belief that a crime was committed the Sun claimed victory:  Aha!  The police department proven to be incompetent.  

Well, there's incompetence now.  Homicides are through the roof and crime is rising, but instead of police and prosecutor response we citizens have to endure six additional trials - more if there are further mistrials - none of which belong in criminal court.  Why?  Because of a freak accident and the fact that police practice on the street does not blindly adhere to official policy.  What unbelievable folly from our prosecutor and newspaper.

A courageous prosecutor would have called it like it was from the beginning: a tragic accident, but no criminal conduct.  Newspaper editors doing their job would have called her to account for her haste in charging and the unfolding reality that she blew it.  Instead, in the very worst of prosecutorial and journalistic behavior, Marilyn Mosby and the editors of The Sun traded  their objectivity and their duty to the public for political and/or ideological purposes.

Never have I felt more profoundly disgusted by my former profession, or by the once-great Sun, as I have these past seven months.


In Their Own Words

Here's the history of the Sun's editorials on Freddie Gray.  I may have missed a few, but the themes hold steady.  The last one puts the cherry on top. 

April 23:  "No Lynch Mobs Here."   Criticizes the Fraternal Order of police for describing the growing demonstrations as "lynch mobs"  and boasts about peaceful Baltimore and protesters who "are not as volatile as some believe."  The FOP's choice of words was poor, but four days later, the riots erupted.

April 25:  "Why Freddie Gray Ran."  Calls the police encounter with Gray a tragic "injustice."  Not an accident, not an unsolved mystery, an injustice.  Minimizes Gray's criminal record, and paints him as the victim both at the hands of the police and of growing up where "generations of crushing poverty and the war on drugs combine to rob countless young people like him of meaningful opportunities."  The Sun begins its legal analysis here, too: the police could not arrest Gray for merely running from them (true, but misleading:  they could stop him if certain factors were present.)  And:  "departmental policy calls for suspects to be buckled into seat belts when they are transported in police vans and for officers to get medical attention when they request it."  So it began, the narrative of murder by no seat belt and failure to recognize a broken neck. The Sun even beat Mosby to it: she didn't announce her charges until May 1.  The two of them walked hand-in-hand with this perspective down through the Porter trial. 

April 27:  "Reclaim Freddie Gray."  "All the rest of us must speak out and do our parts to find solutions to the injustices that pervade the inner city where he lived and died."  As for the rioters:  "Did the teens truly have ill intent when they arrived, or did the sight of the officers carrying shields and batons - not to mention television cameras - goad them into reckless and destructive behavior?"

April 30: "Baltimore's Tipping Point."  Criticizes a police affidavit for including an "inflammatory (and self-serving) detail" that another prisoner heard sounds that led him to think Gray was trying to injure himself.  At the same time, describes the "vast majority" of demonstrators as protesting their perception of "rampant police brutality and a criminal justice system that unfairly targets young black men for arrest and imprisonment."

May 1:  "A Step Towards Justice for Freddie Gray."  Complete approval for Mosby's "stinging indictment...revealing new allegations...that depict utterly inhumane treatment of the young man....We would be shocked if an officer treated an animal that way these six are accused of treating Freddie Gray."  Praise for Mosby's "skill and poise," her '"swift action" and her own "independent probe."  (To experienced prosecutors like myself, her performance was unethical and her charges too hasty to have credence.) And they explicitly approved criminal trials, despite a probable cause statement that largely omitted the elements needed for a crime.

May 4:  "Policing Baltimore's Police."  "Baltimore needs to address the prevalent and well documented brutality some members of its police force inflict on residents of mostly poor and minority communities... Marilyn Mosby brought the focus back to that issue...with her indictments." 

May 11:  Baltimore's Dispirited Police."  Defends Mosby's charges, although there's finally a tiny hint of possible doubt about her charges.   But they assume that Mosby has "more information that we don't" and state, "We simply have to wait to find out whether the charges she brought are truly justified."  As to police who are afraid that they will be charged criminally for making mistakes on the street:  they "are only lending credence to the notion that such reckless debasement [of Freddie Gray] is business as usual for the Baltimore City police."

May 19:  "Who will Stand Up to the Violence?"  Blames Mayor Stephanie Rawlings-Blake for failing to act on the spike in crime following Marilyn Mosby's charges.  Nary a word about Mosby, although she was the one that created an impossible working environment for the police by charging the arresting officers who had nothing to do with Gray's ride in the police van.  The police rightly perceived her to be on a witch hunt, and that any mistakes in judgment could lead to criminal charges.  

May 20:  "Mosby's Conflicts."  Describes as "noise" criticisms of Mosby's conflicts of interest in the case.  They only criticize her wanting a gag order.

May 27:  "Baltimore is Not Cleveland."  Recognition that the six indicted officers did not shoot Gray.  Instead, a "racially mixed group of officers [ignored] Freddie Gray's cries for help from the back of a van."  So we weren't as bad as Cleveland, where a white officer shot a black man to death, but note the rhetoric: our officers ignored Gray's "cries" for help.  How dramatic.  And never proved.  So much for presumed innocence.

May 29:  "Keep Freddie Gray Trials in Baltimore."  Beginning their crusade to have the trials conducted in Baltimore, the editors write that "holding these officers to account before juries drawn from the city residents who have the biggest stake in the outcome sends a powerful signal that the city is committed to seeing that justice is done."  Meaning, justice comes only through holding the officers accountable.  

June 4:  "No Disclosure, No Justice."  Criticism of Mosby for trying to put a lid on disclosing the autopsy reports. This is the only consistent criticism they have of her: when she wants to keep evidence out of public view.  

June 15:  "Are Baltimore's Police Doing Their Jobs?"  Criticizes the mayor and the police commissioner for not stepping up amidst the increase in violent crime. Silence on Mosby.

June 18:  "Do Your Job, Too, Madam Mayor."  More blame for Mayor Stephanie Rawlings Blake over the spike in violent crime, and another pass for Mosby.  Just what the hell is our State's Attorney doing about crime, anyway?  The Sun never tells us. 

June 22:  "Echoes of Freddie Gray from the Supreme Court."  Cites a new Supreme Court decision that  the standard for excessive force by a police officer in a civil case is whether a reasonable officer would consider the force excessive.  "One of the most chilling things about the allegations in [the Freddie Gray] case is that none of [the six officers] stepped in to ensure that he received medical attention or that he was properly secured in the van." There's that guilty-of-a-crime narrative again.  And no evidence that this case was about "excessive force."

June 24:  The autopsy report, which makes it clear that there is no 'smoking gun' and that the case is, at best, one of negligence, is leaked to the press.  Now they have their evidence, but The Sun's editors make no comment whatsoever that I could find.  However, they now shift gears: the ensuring editorials are all about keeping the trials in Baltimore, the only place where guilty verdicts on the weak evidence were possible.

Sept. 1:  "Freddie Gray Case: Order in the Court."  The editors "agree with the protesters" and want the cases to stay in Baltimore, though they want peaceable protests. One protester (in another article) holds a sign saying the trials should stay in the city because "they killed him here."  
Sept. 8: Freddie Gray Settlement: Did the Mayor Just Take Out a $6.4 Million Riot Insurance Policy?" Concern that the civil settlement might influence the judge to move the trials out of Baltimore.

Sept 10:  "Freddie Gray Trials Belong in Baltimore City."  Praise for Judge Williams for keeping the trials in the city.  "Jury selection in these cases is bound to be exacting and contentious...But the arguments for short circuiting the process are weak."  In fact, if any case called for a change in location this was it.  Judge Williams' decision made the rule about changing venue meaningless.  And there was no "exacting" jury selection.  It took a mere two days.  Business as usual.

October 17:  "Finding a Fair Jury for Freddie Gray."  The title of this editorial is revealing since the defendants in need of a fair trial are the police officers, not Freddie Gray. Once more the editors assert that the case should be tried in the city, but this editorial makes the following statement: "It is simply impossible to judge in advance how strong [Mosby's] case is, and we expect that, not any preconceived attitudes among Baltimore's jury pool, will decide the officers' fates."  The Sun is equivocating.  Of course we know how strong her case was.  The autopsy report laid it all out. 

October 19:  "Baltimore Police, Seat Belts, and Freddie Gray"  The Sun itself sums up this editorial as follows:  "Is it possible that six Baltimore officers missed three years of messages about seat belts in transport vans?"  And its concluding sentence:  "If there is any kind of explanation for such conduct beyond callous indifference, we'd love to hear it."  Failure to put on seat belts in police vans can only amount to callous indifference for the Sun, not a reasonable act to protect police officers.  Guess police officers all over the state who are safely transporting arrestees without seat belts are also callously indifferent, homicide defendants waiting to happen.  

December 11:  "The Verdict Awaits."  I quote the last paragraph:  "The verdict in this case may carry great symbolic weight but ultimately, the trial of Officer Porter comes down to whether he demonstrated proper concern under the law for the health and welfare of a suspect in the back of a police van. The charges he faces, including manslaughter and second-degree assault, are serious, and justice must be served, but there's also the bigger picture: We must prevent similar tragedies from occurring in the future while restoring public trust in the police department and reversing what has been a disastrous and historic uptick in murders this year."  

Say what?  With verbose double-talk, the editors back off their previous undisguised desire to hold the officers accountable, and now are more concerned about the future.  What happened to Justice for Freddie Gray?  Guess it wasn't about six brutal officers picking on a poor black man and killing him through criminal indifference after all. 

December 19 (published on-line on the 17th):  "Three Lessons of the Porter Trial."  First, "Mosby's charges weren't crazy." Second, "Baltimore can produce a fair jury."  Third, "The city is better than cynics believe." 

Wrong, wrong and wrong. This is so self-serving that my stomach turned reading it. Mosby's charges were incompetent and abused her power.  She rode the emotion of the city to convince them that she had a criminal case.

If anything, the hung jury proved it.  This should have been a slam dunk acquittal. The jury deadlocked after only a day.  My guess is that most of the jury quickly saw the evidence for what it was, but that one or two came into the case determined to convict and unwilling to be persuaded otherwise.  (These are called stealth jurors, and were more likely to come from a city jury pool than elsewhere because of local emotions and impact.)  Had there been greater initial division among the jurors, or a willingness to discuss, they would have taken longer.  But when a juror folds his or her arms and won't listen, there's nothing to be done. So after a mere day, they deadlocked, though forced to try for one more day.  

In any event, the failure to acquit when the evidence demanded it proves the point that the trial should have been moved, not the other way around.  

As for the 'cynics',  we just need to remember the Sun's editorial of April 23 ("No lynch mobs here") for their credibility in predicting violence. The superintendent of schools was worried.  The mayor and governor were worried.  And who knows what would have happened had the jury acquitted.  The editors again want to justify their opposition to moving the trial.  

Wouldn't it have been refreshing had the editors said, "Our bad.  We trusted that Mosby had the evidence, that she knew what she was doing, and we were wrong."  Instead they wrote two pusillanimous editorials after the verdict defending themselves.  

The Baltimore Sun will probably win some awards for writing about the Freddie Gray case.  Now that's what I would call an injustice.

Sunday, December 13, 2015

The Rubber Hits the Road for Judge Williams

I was taught that the number one reason why criminal convictions are reversed on appeal are due to mistakes in instructions to juries.  What Judge Barry Williams tells the jury before they deliberate this week in State v. William Porter, the first of the Freddie Gray trials, is therefore crucial to a just result. 

One thing State's Attorney Marilyn Mosby has successfully (and wrongfully) done is create in the public mind the idea that failing to use a seat belt is a criminal offense.  She mentioned the police failure to seat belt Gray over and over again in her speech announcing criminal charges. Michael Schatzow and Janice Bledsoe, the trial prosecutors, have harped on it repeatedly with every witness.  

But it's not a crime.  In fact, in Maryland the failure of persons injured in an auto accident to use seat belts isn't even negligence on their part.   Yet Mosby uses  lack of a seat belt as the crux of her criminal case, and so do people who want the police department to be held "accountable" for Gray's death, not accepting the fact that accountability came through a civil settlement.  

The seat belt issue is now even more critical to Mosby's case after defense experts persuasively testified that Gray was not suffering from his injury at any point when officers were talking with him.   At the very least they cast more than a reasonable doubt upon the medical examiner's claim that the police were talking to a man with a broken neck and did nothing about it.  That jettisons the failure-to-get-medical-help as a crime.   Mosby is left with homicide-by-no-seat-belt.    

I don't know on what basis Judge Williams decided to permit the seat belt issue to even be discussed in the case against Porter.  My guess is that it was a novel issue for him, applying civil law to a criminal case, and he decided to let the jury decide.  But he can't pawn the decision off on the jury until he first explains the law to them.  What will he say?  If he gets it wrong, and the jury convicts, Porter will have to wait on an appeals court to get justice.    

I have yet to see the courage I expected from Judge Williams in his rulings.  He should have changed the location of trial, but didn't.  He should have tossed the assault charge after the state's case because they presented zero evidence Porter assaulted Gray.  Will he allow the jury to think -- as  many in the public think or want to think -- that failure to put a seat belt on Freddie Gray could be considered a criminal act?

It's possible that even if Judge Williams allows them to think that, they will acquit anyway, on the basis that the van driver had the responsibility for seat-belting his passengers.  The right result for the wrong reason. 

But here's hoping we get the right result for the right reason.

Thursday, December 10, 2015

The Real Crime

While Rome I-mean-Baltimore burns, Baltimore State's Attorney Marilyn Mosby is getting her rear end kicked.

Not by a brilliant defense strategy, but by the facts.  Facts that she could have discovered had she conducted herself professionally and ethically.  

People with expertise told her - immediately after her dramatic announcement of charges - that she acted too fast, that she could not possibly have known all the facts with her two-week "parallel" investigation, her failure to study the police and medical examiner's reports, and her failure to use the grand jury or her own experienced homicide division.

But she created her story and she stuck to it.  We have an exploding homicide rate, a demoralized police department, and her own office in shambles.  Perhaps all of that could have been justified had she pursued a real case of police brutality and murder.

Instead, she made the death of Freddie Gray "in police custody" the equivalent of "murder by police." She made the failure to put on a seat belt a form of homicide.  She stole the livelihood of six people for her own ideology and career.  

Her own probable cause statement did not support her sensational indictments. The autopsy report didn't either, despite it's legal conclusion (that was clearly influenced by Mosby.)  And now the facts reveal that not only are the charges not provable beyond a reasonable doubt, but the officers are actually innocent.

Freddie Gray did not suffer his fatal injury until after the second to last stop.  He wasn't being given a deliberately rough ride, but was doing his own banging around.  Perhaps a seat belt would have prevented him from killing himself, but so would his just staying seated.  In any event, there is no such crime as "homicide by no seat belt."  If one wants to call it negligence - despite other police departments (not to mention other transit vehicles, like buses) not using seat belts - then fine.  That's why the city paid the Gray family over $6 million.  But there was no police brutality or a criminal disregard for Gray's safety.

There is no way this jury can convict Officer Porter on any count.  If they do, it will prove only that Judge Williams should have changed the venue because jurors are afraid of the consequences of an acquittal.  

It's Marilyn Mosby who has committed a crime, a crime against the criminal justice system and the oath she took less than a year ago.  A crime against people who should never have been charged and prosecuted.  A crime against the citizens of Baltimore, and the false road she took them down.

It's a crime she will get away with.  But the city won't. We'll be paying for this for a long time to come.  

Thursday, December 3, 2015

Who's Minding the Prosecutor's Office? Not Marilyn Mosby.

Marilyn Mosby, according to a local news report, is "front and center" watching the trial against Officer William Porter in the Freddie Gray case.  She herself is not capable of trying it -- way too inexperienced -- but she's there anyway as a spectator, just as she attended the pre-trial motions in the case.  One would think that with her two top deputies handling the trial, Mosby would be running things in the office.  

Nope.  In the first year of her administration, with a million issues to confront, Mosby is being paid over $238,000 to watch a trial.  It doesn't take a genius to figure out why: she has staked her reputation on this case, and she wants the judge and jurors to know it, to influence them by her presence.  Never in my two decades as a Baltimore prosecutor did I see a State's Attorney watch a trial. They had too much work to do. 

So the State's  Attorney's office, which lost so many experienced attorneys when she took over, is running rudderless while the number of homicides in Baltimore return to the horrifying levels of decades past.  Mosby and her deputies, instead of managing the office, are engulfed in a trial she could have assigned to the chief of her homicide division.

But perhaps it doesn't matter.  Mosby and her team lack the judgment, priorities and experience needed to run an effective prosecutor's office anyway.  Mosby was a run-of-the-mill prosecutor who became a run-of-the-mill insurance attorney before election to the largest prosecutor's office in the state.  Michael Schatzow, the self-described champion of civil rights, and Janice Bledsoe, a career defense attorney, are engaged in prosecuting a case in which they, were they still watchdogs against the abuse of power, would be frothing at the mouth in righteous indignation. Their failure to recognize their own abuse of the prosecutor's power to charge and prosecute, and the irony of their role reversal, is astonishing.  

I knew when I read Mosby's probable cause statement issued a mere two weeks after the death of Freddie Gray that she was acting not as a prosecutor - following the facts wherever they led - but as a politician.  Still, I waited to see if she was holding something back, waited for some evidence that justified her charges (if not her haste) before reaching any final conclusions.

But the autopsy report made it clear that Freddie Gray's death was a tragic accident, and that no police officer beat him, broke his neck, or killed him.  No police officer ignored an obviously injured man and left him to die.  

So Mosby is essentially engaged in a political persecution to demonstrate that she will do something about police brutality and enhance her political career.  She picked the wrong set of facts, and now is wasting tremendous resources to justify herself. 

Including her own fat salary, while she sits around watching a trial instead of running her office.   

Monday, October 19, 2015

A Judge Influenced?

The decision of Judge Barry Williams to keep the trials of the six police officers charged in the 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.  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 Florida case in which riots erupted after police shot a fleeing suspect, an 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.

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, not incapable.  And 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 is influenced, 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.  

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.