The Day America Lost Its Greatness

On November 8, 2016, America elected a lawless man to the White House.  For this reason, and not for any other, it forfeited its claim to greatness.  

Policies come and go.  Health care, immigration, taxes, foreign policy - these things don't make or break the character of a country.  Policies change over time, edge forward and backward, left and right, as people with differing points of view advocate and, in a well-functioning democracy at least, compromise.  

No, we lost our greatness when we handed the power of the people to a man with absolute disdain for the basic principles on which this country was founded.  In 1787 we agreed to be ruled by laws created by public consent, subject to constitutional limitations that protect basic freedoms.  We have also agreed through the years on rules of conduct that guide our behavior in a democracy.  Yet we elected a man with no respect for any of it. 

As a former prosecutor, I blasted Baltimore State's Attorney Marilyn Mosby for her failure to follow the facts and the evidence when she charged six police officers in the death of Freddie Gray.  She saw only what she chose to see.  Now the American people have followed suit, ignoring the facts before their eyes and entrusting their power to man without dedication to the rule of law, be it moral, political, civil or criminal.  Winning and power is all that consumes Donald Trump. 

It's not as though he hid who he was.  We weren't fooled into voting for him.  He told us from his own mouth, from his own actions, who he is and what he wants.  He poured out and doubled down on the insults, the bullying, and the repeated, documented lies, so many that we lost track. He privately boasted of sexual aggression, and publicly laughed about visiting young women in various states of undress in their beauty pageant locker rooms.

He ignored well-established, importance practices of accountability and responsibility in political life such as releasing tax returns, transparently lying about the reason. He refused to say he would acknowledge the legitimacy of the election if he lost, blatantly undermining confidence in our process by calling it "rigged."  He even suggested that a hostile foreign power should interfere with the election, mocking the reality of that interference.  He threatened to lock up his political opponent upon taking office, and encouraged followers to harass minority voters at the polls. He "joked" that "Second Amendment" people should handle judicial appointments by his opponent.

He routinely breached his business contracts, created enterprises to defraud customers, and criminally assaulted women. He illegally used his charitable foundation to pay the Attorney General of Florida a campaign donation when she was contemplating a fraud investigation.  He refused to accept the DNA exoneration of the Central Park rape defendants who he had originally wanted put to death.  His disdain for international law and civilized boundaries revealed itself in his approval of torture not only for persons he deemed enemies but for their families.  

None of these matters are under factual dispute, and none have to do with policy.  It's about his abuse of power. He threw it all in our faces, gloating that he could publicly shoot someone and get away with it.  He was right.  He could violate any law, any rule of decency and civility, and we would still elect him to the highest office in our country, the most powerful in the world, even handing him complete power through a party that collectively refused to repudiate him and ensure his defeat. 

In fact, his candidacy was the natural result of that party's growing evolution over the years to refuse to govern, to block all initiatives (while blaming gridlock on the party in the White House), and to decline to exercise its constitutional duties, including a hearing for a Supreme Court nominee.  It was even gathering momentum to deny any nominee of the opposing party a position on the Court had it won the election. Power was the goal, not respect for the law, the Constitution, or for the American traditions we have held up to the world as "great."  The American people, rather than rejecting this lawless behavior, have now rewarded and empowered it.  

The FBI probably tipped the election when it violated its own rules of investigative conduct.  FBI agents in New York, tight with Trump enabler Rudy Guiliani (who represents their association), let him know they were cooking up a "surprise" that would "turn this thing around."  And sure enough, they resurrected the non-existent email "crime" just in time to allow Trump to claim the entire week before the election that Clinton would be a president under indictment.  This was lawlessness from the premier law enforcement agency in the U.S., an entity that had worked so hard to resurrect its image from the dark days of J. Edgar Hoover.  Imagine this agency now in the hands of Trump and Guiliani.

That Trump had the enthusiasm and votes of bigots and haters is indisputable.  He gave them voice, enabled and encouraged their venom and disdain for civility at his rallies, on their t-shirts and bumper stickers, and in their vile chants and slogans.

But they didn't elect him.  No, the decent people of America elected him, the ones who rationalized his behavior, who felt that Obamacare or liberal policies or economic pain or whatever personal grievance they had with the status quo outweighed the threat he clearly posed to the American rule of law.  Someone said before the election that this would be both a test of the American IQ and a look in the mirror.  What we see is a country, the self-proclaimed "greatest", willing to sacrifice its traditions and ideals and hand over the keys to a man who "alone can fix" their problems, who not only admires totalitarian figures, but behaves like one in his rejection of civil and legal boundaries.

The key to rationalizing a vote for Trump, a non-vote for Clinton, or not voting at all, all of which elected Trump, was the notion that his opponent was "just as bad," a corrupt criminal and liar who at best could not be trusted and at worst belonged in jail.  To talk about Trump with a Trump enabler was to get a giant dose of "But Hillary..."  Voters who ignored the documented facts about Trump also chose to believe the unsupported accusations about Clinton.

I was sure that my uncle, an educated, intelligent conservative with a wide knowledge of history would vote for Clinton. Wrong.  "She's a crook!" he practically shouted to me. "She stole money in Arkansas and Washington."  No, she didn't.  For partisan reasons he refuses to accept that years of investigations yielded no proof whatsoever. Another thoughtful man told me that Clinton was a "pathological liar" and pointed me to a New York Times story documenting that her Foundation paid for her daughter Chelsea's wedding. Except no such Times story existed.  He cited an unproved accusation from rag journalism derived from the leaked email of a person hostile to Chelsea. That about sums up what people were willing to believe.

Over and over again, this candidate was persecuted with multiple investigations for the stated purpose of taking her down politically, and people chose to ignore both the intent of these investigations and the lack of evidence that they yielded.  It's the game of making the accusation so many times it sticks, even without facts, and tires voters of a candidate. The actual evidence was that Clinton was a dedicated, tireless public servant, found by professional fact-checkers to be more accurate than most politicians, but twisted by political enemies into some kind of lying criminal.  Ordinary people heard the words "untrustworthy" and "untruthful" so many times that they internalized them and repeated them without being able to provide factual examples. 

The failure to follow the facts and the evidence, for whatever emotional reason the voters had, gave us Trump, a man with no respect for rules and laws.  Some want to blame Clinton, others the media. But the blame falls squarely on every Trump voter and those who claimed their "conscience" would not let them vote for Clinton.  Their conscience placed politics or ideology higher than country. 

The German people once put in power a man who appealed to their basest instincts.  He played to racial hatred and resentment (the Jews) and to economic anger caused by the post WWI Versailles treaty.  He created political scapegoats. He was the savior who would fix things.  And the people who elected him (and the politicians who enabled him) were not the ignorant people he incited to rally for him, but the decent people of Germany who peacefully handed over their power.  Someone said to my nephew, who was upset about Trump, "It won't be that bad.  He's not really going to do the stuff" that he said he would. Just what the good Germans of the 1930s told themselves.  

The test of our judgment and character is not upon what happens over the next four years, but rather on the risk we took now.  We elected a mendacious bully of a man who has spit on the law and on civilized discourse between Americans.  We adopted the Hitler blueprint for electing someone who could be "that bad", a blueprint that uses demagoguery and the Big Lie, plays on hatred and resentment, and depends on Americans who are too partisan, too lazy or too ignorant to ensure that we place the rule of law before political policies.  We just proved that we are as willing as any other country to put our cherished freedoms into the hands of an authoritarian.  We have given the greatest possible power to a man who has always done what he can get away with, and who, we can be sure, will use the White House for the same lawless purposes to whatever extent that he can. 

I have tried in my blog to stick to criminal justice issues, the field of my expertise. But I will have some more things to say on this election that comes from my experience in criminal justice, insights regarding race and gender that I think influenced the behavior of voters.  Reasons why I, as a prosecutor, was sometimes frustrated in my job when facts and evidence were rejected by juries.

But no lost case was as big as this.  Kathleen Parker, a conservative columnist, wrote on the eve of the election that no matter who was elected, America would still be great.  She was dead wrong.  A country that could elect a Donald Trump is not great. Our greatness does not depend upon military might or economic power.  It depends, as we have boasted to the world, on our democracy, on our tolerance for those who both look and think differently, for our unique institutions, for our checks and balances, and on our respect for the law no matter what.

When mobs tried to prevent court ordered school integration in Little Rock, Arkansas, it was Republican Dwight Eisenhower who called out the National Guard to enforce the law.  Secessionist sympathizers once attended a White House dinner with their southern Democratic party leader and President, Andrew Jackson.  They were toasting to state's rights, and looked to Jackson for encouragement. Instead he toasted: "To the Union: may it be preserved."

We won't see such commitment to law and country from our president-elect.  That makes us, to use his term, losers.      

Birds of a Feather

The editorial writers of the Baltimore Sun decided early on that neither facts nor fairness could impede their view of what happened to Freddie Gray last year.  

They lauded State's Attorney Marilyn Mosby for her hasty criminal charges, despite the objective view of professionals who recognized the incompetence of her process.

They defended her every step of the way, even as her cases fell apart.  They thought it just fine to ruin the lives and careers of six police officers and threaten their freedom in order to "air out" facts that would have been better explored through proper use of a grand jury.  They failed, from beginning to end, to acknowledge the duty of a prosecutor to follow the facts and the law wherever they led, a failing they shared with Mosby.

And now, in today's editorial, they essentially call for Police Commissioner Kevin Davis to fire, as quickly as possible, the Baltimore Six. Here's why:

• Three of them were honored by a right wing media group.  
• All six caused Gray's death through their "callous" actions.  

I thought newspapers were supposed to be bastions for freedom of speech and association, but I guess that only applies to liberals.  Do I find the Media Research Center offensive?  Yes, I do.  Do I understand why the three attended?  Probably because their lives had been a living hell for more than a year.  Probably because they were driven towards a group that didn't hate them, as they had been hated for so long by so many.  

As for their responsibility for Gray's death, they were exonerated by Judge Barry Williams, who did not find evidence of misconduct let alone homicide.  The Sun doesn't know what Sgt. Alicia White did or didn't do, since she never came to trial.  But the Sun wants her fired, too, along with William Porter, who tried to assist Gray, and van driver Caesar Goodson, who checked on Gray multiple times.  None of these three were feted by the Media Research Center, but apparently don't deserve to be "patrolling the streets of Baltimore" either.  

If the Sun wants to take the position that the Police Department as an entity was callous, I get it. Police leaders could have ensured working cameras in vans, better restraint equipment and practices, and consistent enforcement of procedures.  Improvements like these always seem to get done after tragic accidents, hindsight over foresight.  One might also ask, where were the Sun's investigative reporters and crusading editors before Gray's death?  Why did they wait until he died to dig up evidence of inconsistent seat belt practices and defendants arriving injured at Central Booking? Because the media, like most of the world, is reactive, responding with reforms only after tragedies. But the media gets to act holier-than-thou, the first to seek out who to blame.  

The Sun demands its pound of flesh from these six even though the evidence was clear that they acted reasonably within the context of their training and actual experience. It could have been any officer acting that day with the same result.  Hurry up, the Sun demands of Police Commissioner Kevin Davis, even though outside police agencies are the ones investigating the officers.  It can't "fathom" what is left to investigate.

Neither could Mosby, when she sensationally announced her charges.  No wonder the Sun approved her actions.  The two make a perfect pair.  In their zeal for social justice, the "justice" part doesn't matter.

More Bad Journalism

Wil Hylton's article for the NY Times Magazine, referenced in the Sun's editorial, represents another example of bias disguised as journalism.  Entitled "Baltimore v. Marilyn Mosby" it could more appropriately be entitled, "Mosby's Lame Explanation Unchallenged."  Hylton hob-nobs with the Mosbys, so much so that they let themselves into his home and pour themselves some of his wine. Yet he purports to write a journalistic piece about Mosby's  decision to charge the Baltimore Six, treating us to a self-justifying Mosby narrative that blames police obstructionism for her actions. Even if true (which I doubt), Mosby had the grand jury at her disposal to properly investigate the case herself. 

Hylton's main disagreement with Mosby centers on Gray's injuries: he diagnosed Gray (from a video) as being injured before he got into the van.  Ironically,  the one point on which Mosby and all the experts seemed to agree upon is that the injury occurred inside the van.  But Hylton's personal, unscientific diagnosis led him to the same conclusions as Mosby - and his wholly sympathetic, uncritical treatment of her.

Disclosure:  Hylton called me while working on the piece. He didn't use a thing I said, other than that the attrition rate from Mosby's office is high.  But he did leave a clue as to how he writes.  When I was trying hard to stick to facts and statements that I could support, he told me not to worry, that the standards for magazine pieces were looser. 

And so he delivered a lazy, chummy piece gobbled up by those with the same point of view as Hylton. But the real Mosby shone through anyway, exposing the same arrogance and temperament we saw when Mosby ranted after dropping her cases. A Mosby who, during the riots that followed Gray's death, called up, reamed out, and hung up on Baltimore's mayor.

But Dan Rodricks tells that part of it better.  Check it out. 

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.

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.

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. 

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. 

Sanity and Justice At Last

Now I will say it:  Judge Barry Williams was brave in acquitting Officer Caesar Goodson in the death of Freddie Gray.  One might say that he merely did his job, but some jobs are performed under higher pressure and scrutiny than others.

I first became concerned about his succumbing to pressure when he refused to move the Freddie Gray trials out of Baltimore.  The head of the local NAACP, Tessa Hill-Aston, best illustrated the problem after the Goodson verdict when she opined that a jury would have found Goodson guilty because of their "emotions."  Plenty of jurors in the mistrial of William Porter were moved emotionally to convict him. These trials belonged elsewhere.

Then Judge Williams repeatedly failed to dismiss charges after prosecutors presented their cases against Porter, Edward Nero, and Goodson despite the woeful lack of evidence.  But in the end, when he had to make the most important decision of the Freddie Gray trials, Judge Williams properly applied the law to the evidence and acquitted Goodson of all charges.  He deserves props for this, because plenty of people succumb to political pressure.

No props go to Marilyn Mosby, who turned in a disgraceful performance and made Williams' job so much easier.  Some give Mosby credit for "trying," and do not believe that Goodson's and Nero's acquittals reflect on the appropriateness of her bringing charges.  On the contrary, these verdicts say all we need to know about Mosby's ethics, competency, and the damage she has inflicted upon public safety and the criminal justice system. She announced that her mission was to get justice "for Freddie Gray," not to get justice. She spent less than two weeks investigating his death, ignoring the police detectives and lying about using the sheriff's office as investigators.  She elevated a negligence claim into a murder case, such that too many now think that there's been no "accountability" for Gray's death despite a $6 million settlement.  She claimed officers should not have arrested Gray because the knife he carried was legal, when it wasn't.  She never mentioned a rough ride in her initial charges, then realized late in the game that she needed one to convict for murder.  And the evidence she presented was that Goodson took a wide right turn and then got out of his van. Pathetic does not even describe Mosby's case.

Mosby has accomplished three things in this sorry saga:

• She raised false expectations for police accountability, such that many who already feel short-changed by the criminal justice system have yet another example of a system that doesn't work. (In fact, it worked perfectly to expose her case.)
• Mosby demonstrated that she is a political creature who is not to be trusted with the job of following the evidence wherever it leads, the first duty of the State's Attorney.  So while some who already distrusted the "system" have more reason to do, many others have a new (and well-founded) distrust of Baltimore's prosecutor.
• Citizens of Baltimore are less safe because Mosby's reckless charges have caused individual police officers to step back from proactive policing.

I had hoped not to hear any more drivel from the Baltimore Sun or anyone else unfamiliar with the ethical duty of a prosecutor.  But immediately after the verdict the Sun's editors wrote this:

We give [Mosby] the benefit of the doubt that she and her deputies believed they had a real case.  Indeed, it’s worth noting that Ms. Mosby’s office chose not to present to a grand jury the false imprisonment charges against three officers that she had initially announced. As the facts became clearer, prosecutors adjusted course.

Astonishing.  That they would point to one dropped misdemeanor charge in the midst of an invented murder case as evidence of Mosby's good faith is all we need to know about the Sun's ability to assess her performance. Mosby rushed her investigation for political purposes, ignored any facts that did not support her desire to file criminal charges, and constantly changed theories of criminal liability to give her case legs.  The only thing that became "clearer" about the facts was that no crime was committed, yet she forged ahead.  Sun, give it up.

I will write a wrap-up piece somewhere down the road, when all the cases finally finish.  Let's hope that's sooner rather than later.  If Goodson, the van driver, is not guilty, none of the officers are.  But our Three Blind Mice still get to decide whether we have to endure more of their folly.

Three Blind Mice

The trial of Caesar Goodson, the police officer who drove the van in which Freddie Gray suffered his fatal injury, amplifies what the acquittal of Edward Nero already proved: State's Attorney Marilyn Mosby and her trial prosecutors, Michael Schatzow and Janice Bledsoe, are so completely blinded by their determination to pin Gray's death on a cop that they cannot see how patently ridiculous their cases look.  

We already know that they lack the ethics that prosecutors are supposed to have, announcing ahead of time (Mosby) that they will get justice for Gray and ignoring all evidence that contradicts their theory of the case.  They will even argue legal positions that other prosecutors in their office oppose to get what they want.  But to announce what they will prove in court and then prove the opposite reveals a level of obliviousness to the facts and indifference to the truth that would be comical if not so scary. 

Schatzow promised evidence of a rough ride by Goodson. What did he present?  Evidence that Goodson did not provide a rough ride.  He promised evidence that Nero assaulted Gray when he arrested him. What did he produce? Evidence that Nero didn't even arrest him.  And they don't seem to see this.  They argue their cases as though this was some law school moot court, not as prosecutors with the ethical duty to impartially assess the facts.

The original probable cause statement produced by these three prosecutors was on its face so lacking in grounds for criminal charges that professional observers believed that there had to be more.  What we have learned is that there is less.  And yet Mosby, Schatzow and Bledsoe continue on, enabled by a judge who refused to change the location of the trials (as he should have) and remains reluctant to dismiss charges for which the state fails to prove each element of the crimes alleged.

Goodson should be acquitted, hands down.  And as the officer with the most serious charges, his acquittal should finally send a message to Mosby and Co. that it's time to stop spinning around on their mouse wheel.   

But I wouldn't bet on it.  To put on the cases these three have manufactured, at such cost to the city (in public safety, morale, and money), they must suffer from permanent blindness.  

Splashy, but Irrelevant

The showdown that went down in court Thursday between lead prosecutor Michael Schatzow and lead police investigator Dawnyell Jones may have entertained journalists and spectators, but it's ultimately meaningless.

Carol Allan, the assistant medical examiner who examined Gray's body, ruled his death a homicide. Jones said that Allan first called it a "freakish accident."  My own personal view is that no M.E. would have called it a homicide unless led by the nose by prosecutors.  What Jones alleged that Allan said - "no human hands can cause this [injury]" -- was factually true.  No police officer beat up Gray.  Allan was prompted by Mosby's team to call it a homicide, but she applied a legal theory that wasn't for her to decide.  All the M.E. can do is tell us what physically caused a death.  The legal characterization of that cause is someone else's responsibility.

So the sideshow over what Allan really thought or really said doesn't matter, as Judge Williams well knows.  I am surprised he just didn't say so, since he is the one charged with rendering the verdict. On second thought, I shouldn't be surprised about anything anymore when it comes to the Freddie Gray case.  

Brave Judge or Troubling Acquittal?

Billy Murphy, lawyer for the Freddie Gray family and booster of State's Attorney Marilyn Mosby, called Judge Barry Williams "brave" for his acquittal of Officer Edward Nero.   If I were the other officers still pending trials, I would use that as exhibit A in again requesting that Williams move the trials out of the city. If it took courage for Williams, a professional judge trained to make legal decisions, to acquit Nero, think of the pressure that ordinary jurors feel amidst the volatility of Baltimore city to convict some officer of some crime to preserve the peace.

It didn't take judicial bravery to acquit when the facts demanded it even before the trial began.  The prosecution's "case" got even worse at the trial, showcasing the blind, ideological abuse of power in the hands of Mosby and trial prosecutors Michael Schatzow and Janice Bledsoe.

I respect the fact that Judge Williams did his job.  But he continues to show signs that he is not quite up to this case, that the pressure affects his decisions.  It's curious, for example, that he would make Nero wait four days on pins and needles for his acquittal.  Could it be that Williams worried about potential unrest in Park Heights and greater Baltimore during  national coverage for the Preakness Stakes, and what that would mean for the city?  Is public reaction his overriding concern as trial judge?

While that is speculation, a more concrete worry is Williams' failure to make the legal rulings he needs to make.  He is determined to send these trials to the fact finders for a decision, and by refusing to dismiss the charges, gives credence to the belief that Mosby and her team were justified in bringing them.  By allowing juries to make decisions reserved for judges, Williams imperials justice for the remaining officers waiting for trial.  The hung jury in the Officer William Porter trial, another case that should have been a slam-dunk acquittal, proves the point. 

Let's take the assault charge against Nero.  Williams decided that since Nero was not the officer who detained or arrested Gray, he was not guilty.  But that conclusion was uncontroverted at the end of the prosecution's case.  The legal standard at that point is whether a reasonable fact finder, viewing all evidence in the light most favorable to the prosecution, could find a defendant guilty beyond a reasonable doubt.  The state's own witnesses made it clear that Nero was neither the detaining nor the arresting officer.  There was no factual dispute to be resolved, and Williams should have dismissed the charge then.  He didn't, and had this a been jury trial, Williams would have allowed jurors to make a legally insufficient finding had they convicted.  (Williams also failed to address the issue of whether an arrest without probable cause is a criminal assault, perhaps because he didn't need to for Nero's case. But it guarantees that the other arresting officer, Garrett Miller, will go to trial.)

Williams acquitted Nero of reckless endangerment because he found it reasonable for Nero to think that another officer had responsibility for seat belting Gray. That assumes that the failure to seat belt "created a substantial risk of death or injury" (italics mine), the standard for reckless endangerment.  Yet no such proof was offered. Prisoners are safely transported without seat belts all the time.  Not using a seat belt isn't even evidence of negligence in Maryland, and it carries a mere $50 fine.  One Maryland law requires that transport vehicles for intellectually disabled children have a seat belt for each seat, but there's no such requirement for other children or transport vehicles.  It appears that our law-makers think of seat belts as measures that help to prevent harm, not create risk. The risk is created by other elements - speed, other drivers, etc.   Maryland legislators even specifically excepted the use of a motor vehicle from the crime of reckless endangerment!  But Mosby invented herself a new crime without the legislature, one of omission: the crime of not doing something to lessen the risk of transportation in moving vehicles.  And Williams has enabled this novel crime in both the Porter and Nero trials by failing to toss it on legal grounds. 

Nero also faced two misconduct charges, one for Gray's arrest (acquitted because Nero didn't make the arrest) and the other for not placing a seat belt on Gray.  Williams ruled that the state failed to prove that Nero knew about the new police regulation on seat belts.  But he wrote his verdict as though Nero might have been guilty of a crime had he known about the police regulation and consciously (even if in good faith) did not follow it.  Williams failed to mention the elements of the crime that he gave to the jury in the Porter trial: that Nero had to have acted in bad faith or with an evil motive.  Without those elements, any officer who failed to follow one of the incredibly numerous police regulations of which he had notice would be guilty of a crime, even if leadership never enforced it or he forgot about it.  On this theory of misconduct, Mosby is herself a criminal for failing to follow ethical guidelines when announcing charges against the six officers.  

At no time in the Porter or Nero trials did prosecutors even attempt to prove bad faith on the part of the officers.  It's all about a local police rule (not shared in sister counties) that required, on paper but not in practice, a seat belt. Not only is failure to seat belt not a crime, it's not even admissible in a Maryland civil court.  Yet Judge Williams has now twice failed to toss misconduct charges for legal insufficiency.

And so I fear that the van driver, Officer Caesar Goodson, a man with no blemishes on his record in some 16 years of service, is in jeopardy of an unjust conviction because he bears the most sensational of the charges (murder), and is the most likely to be scapegoated for Gray's death.  If so, he'll be exonerated on appeal - eventually, and at great personal and financial cost.  But Judge Williams could stop the farce now, for all the officers, for all of Baltimore, and for justice, by dismissing the charges for legal insufficiency. Now that would be brave.   

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It's Not a Game, Schatzow.

One of the weirdest things about the Nero trial was how the judge deliberately kept out any evidence about the knife found on Gray.  When Nero's attorney asked Miller it, Judge Williams sustained the prosecutor's objections.  Huh?  Wasn't this all about whether the police had probable cause to arrest? Apparently - behind closed doors - Mosby's trial team conceded they were wrong about the knife, and wanted to limit the argument to a new and novel theory of a crime.

Schatzow, a civil litigator by trade, has pulled out all stops in pushing the law as far as he can take it  to convict somebody of something.   He's oblivious to the consequences.  Even if officers arrest without probable cause, charging them with crimes for a mistaken belief renders them powerless to perform their jobs.  None of us could work if each mistake carried criminal consequences.  Most cops are high school graduates, not legal scholars, called upon to make split second decisions in high pressure atmospheres.  It's untenable to expect a standard of perfection.

Schatzow doesn't care about policing or public safety, only about making examples of these officers. So when his first theory of no probable cause failed (in his hasty investigation, he failed to read the Baltimore city code about knives), he came up with theory #2, which I addressed in my last blog: that anything less than instantaneous action to investigate the reason for a detention amounts to a crime. He also tried to persuade Judge Williams - who thankfully gave it short shrift - that an officer who assists another after a detention or arrest is an accomplice or co-conspirator.

Schatzow won the day in the Maryland Court of Appeals on his contention that one co-defendant can be forced to testify against another when both are pending charges, an issue I expect to see in the Supreme Court at some point.  But in a moment of ironic justice, he got his butt kicked when he tried it:  Miller, the compelled witness, took responsibility for the arrest of Gray and exonerated Nero from responsibility.  Schatzow deserved the whipping.  Real prosecutors use plea agreements to interview co-defendants and obtain and evaluate information.  Schatzow wanted it all: convictions on Nero and Miller both, giving no quarter to either.

But though Schatzow won't give up, the law is clear that neither Nero nor Miller committed a crime.

• An officer may detain a suspect if he or she has reasonable suspicion to believe a crime was committed.  This is a lesser standard than probable cause, the standard needed for an arrest.  In a high crime area, unprovoked flight from a police officer may constitute reasonable suspicion.
• A suspect may be detained for a reasonable amount of time to investigate an officer's suspicions to determine whether to arrest or let a suspect go.  What is reasonable depends upon the circumstances.  I know of no case holding that a 2-3 minute delay is unreasonable - that would be absurd.  Much, much longer detentions have been upheld as reasonable.
• Handcuffing a suspect - the "hard take-down" - does not, by itself, turn a detention into an arrest.  Flight or reasonable belief that a suspect may be armed will justify handcuffing.
• The collective knowledge of the police counts in assessing the reasonableness of a detention.  An officer acting on the instructions of another does not have to have first hand knowledge of why he detained a suspect. 
• Officers may frisk a suspect for weapons to protect their safety if they have a reasonable belief that a suspect may be armed.  In the Gray case, the nature of the area and Gray's flight lent itself to such a belief, such that whether the knife was found as part of a frisk or in looking for an inhaler at Gray's request, its recovery was lawful and justified Gray's arrest.  

Schatzow, the civil litigator, ignored all of this, attempting to blame Nero and Miller for Gray's death through the back door of an illegal arrest.  "Illegal" in this sense doesn't mean crime, but a violation of the 4th amendment protection against unreasonable seizures, which, when it occurs, results in dropped charges and civil suits.  Only officers acting with bad faith or evil motive can be charged criminally - and Schatzow has made zero effort to prove such a state of mind for any of these officers. Mere violation of rules or standards constitute crimes for him.    

For Schatzow, it's all just a legal game.  How to win no matter what the obstacle.  Time for him to go back to civil litigation, where standards of ethics and justice apparently don't apply.  

Baltimore's Dangerous Prosecutors

The criminal trial of police officer Edward Nero, the second of six scheduled in the aftermath of Freddie Gray's death, proves what many professional observers feared when State's Attorney Marilyn Mosby so hastily and sensationally charged the six officers with crimes a year ago: Baltimore's top prosecutors are oblivious to their ethical duties and dangerous to public safety.

The trial of Nero made it abundantly clear that he did nothing wrong.  In response to a call from a supervisor, Officer Garrett Miller detained and handcuffed Gray.  Nero joined him, and one of them found an illegal knife on Gray while looking for the inhaler Gray requested. Gray was subsequently placed and then repositioned in a police van, with Nero assisting but not in charge of the process.  Gray then suffered a freak and fatal injury sometime while in the van, at some point and in some way no one knows for sure. What we do know is that no police officer beat him or deliberately endangered him.  

The case against all the officers is, at its core, homicide by no seat belt.  It's an entirely new crime being invented by Baltimore's prosecutors, and they are pulling out all stops to make it stick.

But the charges that always seemed the most pernicious to me were the ones against Miller and Nero for arresting Gray. By charging them criminally, Mosby and her deputies, Michael Schatzow and Janice Beldsoe, told police officers that any mistake in the assessment of probable cause, even if the police officers acted in good faith, is a crime.  But the theory exposed by the trial is even more dangerous to public safety that that.  

They argued to trial judge Barry Williams that in the 2-3 minutes after Gray was handcuffed, but before the illegal knife was found on him, Nero, by not instantly finding out why the supervisor wanted Gray detained, committed a crime.   In other words, the mistake they made was neither in the chase (for which they had reasonable suspicion) nor in the arrest for the knife (for which they had probable cause.)  In was in the extremely short delay before finding the knife in which they hadn't pulled out all stops to find out why they were asked to detain Gray.

It's a breathtakingly astonishing theory for a crime.  No police department anywhere could operate under such a constriction.  Mosby's motivations are now laid bare: she wants criminal convictions no matter what the truth, the facts, the law, or the impact on public safety.

Mosby first announced last year that Gray's knife was legal. Oops, wrong.  But rather than reassess her  judgment, she charged forward with this new, incredibly specious and dangerous argument.  In fact, she and her deputies have employed legal gamesmanship to achieve their ends throughout this drama.  They perverted the intent of the witness immunity statute to make one co-defendant testify against another, something we have yet to see them do against other criminal defendants.  (It backfired on them when they made Miller testify against Nero, but the fact that they did it showed their desperation to convict.)  They also used it as a tool to postpone cases they were not yet ready to try.  They have taken the routine practice of not seat-belting prisoners in a police van and turned it into a crime, despite the fact that the officers could not have anticipated that Gray would break his neck.  And now any police officer who takes a few minutes to recover from a chase or collect his thoughts is guilty of crime if he did not have first-hand knowledge of the reason for detaining a suspect.

At least, that's the way it is in Mosby's world.  Never mind that legal precedent is against her, or that her own prosecutors are arguing the opposite in their everyday cases.  Mosby's objective is politics and pandering, not justice.

So, Baltimore, when one of your citizens is a victim of crime, don't be surprised if the police do nothing more than take a report.  Detaining a suspect puts them in legal jeopardy under the Mosby regime.  And don't expect the prosecutor's office to help you out, either.  Their leaders are either watching the Gray trials (Mosby) or spending the first two years of their administration inventing new crimes for which to convict its police officers.

Thoughts While Waiting on the Next Freddie Gray Trial

What's Up with the Court of Appeals?
When Officer William Porter appealed a ruling that he had to testify against his co-defendants in the Freddie Gray case while pending his own re-trial, the Court of Appeals swooped in.  Although the appeal was made to the intermediate Court of Special Appeals, the state's highest court decided to intervene, presumably to keep the trials moving along.    

And they made their minds up quickly, issuing an order affirming the trial judge's order within days of hearing arguments.  But now, two months later, we still await their justification.  (And prosecutors have taken full advantage, making yet another co-defendant to testify against a fellow officer.  Unlike Porter, who took the stand in his own defense in his first trial, Garrett Miller has yet to testify at all.)  

It makes me wonder: are the justices having second thoughts? Did the process of justification make them pause and reconsider the implications of their decision on the 5th Amendment and the power of prosecutors?  Are they having trouble articulating the rationale, because they don't all agree on it?  And what if a key voter has changed his or her mind - wouldn't that throw a monkey wrench into the business.

Whatever is going on, they owe the defendants a rationale, and they owe it to them now as they prepare their cases.  I was mildly surprised by the Court's decision, but willing to believe that it was based strictly on the letter of the law and precedent and would build in protections against prosecutorial abuse.  Now I wonder if they knew what they were doing when they acted with such haste.  

The Trial of Officer Edward Nero
The Baltimore Sun speculates today that Edward Nero, one of the arresting officers, may take a court trial.  From the outset, before I knew more about the evidence (or lack thereof) in the cases against the six officers, I was most disturbed by the criminal charges against the two arresting officers, Nero and Miller. 

Let's assume that these two officers arrested Freddie Gray improperly (something I don't at all concede.)  Prosecutors first claimed that Gray's knife was legal, but they should lose on this, either because it wasn't legal or because the officers reasonably believed it wasn't.  Now they claim that the officers recovered the knife improperly. 

This analysis involves a host of Fourth Amendment law - the right to chase, to frisk, to make a "hard take down" without it becoming an arrest, the subjective belief of officers versus their objective right to act, and so forth.  Lawyers argue about it and judges disagree among themselves. The line is often fuzzy and ultimately decided after the fact. What State's Attorney Marilyn Mosby has done is to criminalize any mistake an officer might make in the split second decision-making required on the street. This is so completely dangerous, so chilling to officers, that the results have been what I predicted (and some ridiculed me for): an explosion of crime while officers stand by, loathe to intervene through proactive policing.  

Let me clear: I don't approve of bully policing.  But officers who overreach can be disciplined and sued, and those who lie and plant evidence should be criminally prosecuted.  But the majority of improper arrests involve not corruption but mistakes, good-faith mistakes in the complicated area of criminal law and the 4th Amendment, and there is absolutely nothing in these cases to indicate anything other than - at worst - a mistake under duress in the knowledge or application of the law.  What they should have done will be decided coolly after-the-fact, with good arguments on either side.  

Nero must choose whether to take his case to a judge or a jury.  The jury in Porter's case already revealed how the publicity affected their decision-making, nearly convicting him of misconduct when the evidence wasn't there. Therefore, it would seem reasonable for Nero, whose case depends on the interpretation of the law, to take his case to a judge, who should fully understand the complexity of 4th amendment law and acquit him easily. However, this is a risk, as Nero would waive certain avenues of appeal and put all his eggs in one basket.  With the facts of this case, I would normally judge this to be a good risk.

But here let me quote the Sun's quotation of Doug Colbert, buddy of prosecutor Michael Schatzow, who is as phony an "expert" as there is in these trials.  Colbert justifies every questionable act of Schatzow and ruling by trial judge Barry Williams because he relishes these trials and greatly desires convictions.  (And the lazy members of the press lap it up, because he wraps himself in the role of law professor and makes himself available for quotes.) 

Here is Colbert on whether Judge Barry Williams shows any signs that he would rule in favor of Nero:

   "From what I saw, I'm not sure that Judge Williams fits within that profile."

I can see Colbert saying that, with his smug smile of approval.  But in fact, it's an indictment.  This should be an easy acquittal for Nero before a judge who is independent of politics and well-versed in Fourth Amendment and criminal law.  The fact that Williams has created this doubt through his rulings casts further mistrust on a criminal justice system that Mosby has abused for political purposes. 

At the outset I expected Williams to be fair and correct in his rulings.  He has since made me believe that he has been affected by the politics of this case.  Judges, like anyone else, are human.  But I always believe the best before I believe the worst, so for now I choose to believe that Williams thinks the best (political) results would come from city juries deciding the cases without his legal intervention, so he has steered the cases in that direction.  

But if, indeed, Nero takes a court trial before him, we will know for sure whether Williams fits the profile of independent judge or Mosby political enabler.