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.