The Mosby Years

At the outset of her first term Baltimore City State's Attorney Marilyn Mosby became a national sensation when she charged six police officers in the death of minor criminal Freddie Gray.

That she filed her charges with disregard for her prosecutorial oath, resulting in spectacular failure (none were convicted) seemed not to matter to voters, who elected her again. I assume they gave her credit for trying to do something about police brutality. I get it. That the Freddie Gray case was not the George Floyd case is something lost on lay persons.

But to elect her again could only lead me to conclude that the voters will get what they deserve: four more years of violent, unabated crime in Baltimore. The same thing we have had since the Freddie Gray case, when violent crime exploded on Mosby's watch.  

Mosby is great at blaming others for her failures. But she told us who she was with Freddie Gray: an attention-seeking politician without regard for facts and law. And since then she has made clear that she has no plan to address the city's crime, other than to not prosecute minor criminals. Philosophically, I support alternatives to incarceration. In fact, a great plan was in place more then two decades ago to provide services to minor criminals struggling with addiction and mental illness: Community Court. But another newly-elected city leader torpedoed the plan as he pursued his own idea to reduce crime: Mayor Martin O'Malley, the architect of "zero tolerance" (or lock 'em up.)

Mosby had the right idea, but no plan to make it work. She just unilaterally turned a blind eye to minor criminals and let others deal with the problems they created. Likewise, she has told us through her actions that she has no plan to fight violent crime, either. She has provided the city seven years of inceasingly inexperienced prosecutors, brutally high murder rates, and a revolving door for dangerous criminals. We can expect more if she prevails again in the Democratic primary this month.  The same two challengers who split the opposition vote last time are in the race again.  I said then that neither could win if one would not put aside his ego, and we face that prospect again.

This time Mosby is weaker, in part because I suspect her supporters are growing weary of violence, and because of the federal perjury pending against her. Her defense has illustrated the same style she exhibiterd in the Freddie Gray case: regardless of the facts and the law, make it a political and racial issue. Maybe, just maybe, voters will begin to see through her.

I'm not convinced that a federal conviction ends her career. The Maryland Constitution requires that she be removed from office, but is she prevented from running in the general election in November if she wins the primary?  The surest impediment to preventing her return at that point would be disbarment, but attorney Ken Ravenell, who was convicted on federal money laundering charges last December, is still practicing law.  If he can, why not her?

So it may be up to the voters after all.   And if they have the wisdom to kick her out, the next State's Attorney has a long way to go fix the office.  But at least we will have hope for the future.

************************************************************************************

Last blog I promised more statistics on Mosby's office, but I fear the ones I first provided were too dense.  The criminal bar understands the leniency they represent, but the average citizen may not.

Nevertheless, in much simplied form, here are the results of the second and third batch of cases that I tracked from January - June, 2022. More than half are cases from the August and September dockets from 2021. The rest came from dockets in January and February. Anyone who wants the raw data is welcome to them.

My purpose in tracking the later batches were to see if the pandemic affected the results of the first batch, as the courts were reopening last summer. The simple answer is no. The overall conviction rate, including expunged cases, is about the same: 60%. Plea bargains resulted in the release of nearly 45% of convicted defendants who were charged with gun-related crimes, including armed robbery, attempted murder, carjacking, and felon in possession of a firearm. Those who got prison time averaged 3 years (before the parole system cuts that down further. ) Drug dealers, who drive so much of the violent crime, did even better: 71% were released through plea bargaining, and prison sentences averaged about 2 years.

The one exception to these dismal results came in murder cases.  Prosecutors won two trials and got from 25 years to 60 years in plea bargains on five others. Bravo!

By the way, the Governors Office of Crime Control and Prevention ought to be doing these studies on a regular basis statewide, to create public accountability and visibility. I hope the next governor will create such a mandate.  

Addendum:  Three days after I posted this, Ken Ravenell's law license was "temporarily suspended," pending a hearing, at last. 

The Real Story on Baltimore's Conviction Rate

   In December 2021, as Baltimore City State’s Attorney Marilyn Mosby was publicly claiming a 90% conviction rate, I knew of a disturbing plea bargain her office had made earlier that year.

    Khalid Brinkley was charged with home invasion, armed robbery, and being a felon in possession of a handgun. He had forcibly entered a home with another individual, bludgeoned the resident with a gun, robbed him, and was caught red-handed by the police with the gun and stolen goods running out of the house. The presiding judge lectured Brinkley as follows:

    Since 2011, “when you got caught… it’s been breaking into people’s houses—given probation. You violated every one of those probations—every one of them…You violated the same probation twice…Then you go from burglaries to robberies…You get probation again, for robbery…And it doesn’t end there. The next thing is you do a home invasion…By having a girl set him up, and you and your boy rob him. So each one of ‘em is worse—and it gets worse, and it gets worse, and it gets worse. You go back and you hang out with the same guys, and it gets worse, over and over and over again.”

    Nevertheless, the prosecutor recommended and the judge accepted a term of five years in return for a guilty plea. The maximum penalty for the home invasion alone was 25 years. The sentencing guidelines (prepared by the prosecutor) recommended 15 to 25 years.*

    I then searched for other cases by the same prosecutor and found these dismisseed cases:

• A woman stabbed in the stomach by another woman (an incident caught on an outdoors pole camera.)

• Two convicted felons in a vehicle with an illegal firearm. 

• The attempted murder of two persons by firearm. 

    I wondered: was the claim of a 90% conviction rate accurate? And how many of those convictions were obtained by plea deals like Brinkley’s?

    To shed some light, I tracked 430 cases collected from 21 felony dockets in August and September 2021, with the following results:

• A conviction rate of 72%. (The rate could be much lower than that, as will be explained.)

• 98% of convictions were plea bargained.

    Plea bargaining is a necessary practice to move a volume of cases through a crowded criminal justice system. But what kinds of deals are being made, and which cases are worth fighting for in a trial to get a better result? Mosby’s office only took 11 of those 430 cases to trial (with 8 convictions.) A study of the 303 plea bargains revealed the following:

• Percentage of convicted persons free after plea bargain: 70
• Gun-related crimes: 49
• Violence (no gun): 66
• Felony drug dealing: 90
• Sex crimes: 70
• Percentage of probations with only two years supervision or less:
• Gun-related crimes: 45
• Violence (no gun): 40
• Felony drug dealing: 86
• Prison time, average number of years through plea bargains:
• Guns with drug dealing (imposed 50% of the time): 4.5 years
• Guns in violent crimes (imposed 74% of the time): 9.8 years
• Felony assault, Robbery, Carjacking : 4.3 years
• Attempted murder: 12.5 years
• Murder: 18.25 years
• Felon in possession of a firearm (imposed 61% of the time): 4.7 years
• Possession of a firearm (imposed 31% of the time): 3.5 years
• Violent crimes (no gun) (imposed 36% of the time): 5.3 years
• Felony drug charges (imposed 9% of the time): 4.1 years
• Sex offenses (imposed 33% of the time, but small sample): 3.7 years

    These results suggest that Baltimore prosecutors, working in a city rife with violent crime, are extremely lenient. The same criminals are committing crimes over and over.  And these cases don’t even tell the whole story: another 111 cases - 20% of all the resolved cases - have no results. Why? The Maryland General Assembly has seen fit to hide the information from public view.

Case Search and Expungement Laws
While defendants always had limited rights to apply to expunge certain offenses from their records, new laws that went into effect last fall automatically block the public’s access to even more criminal justice information.

    First, expungement has been expanded to automatically remove from public view any case that results in a nolle prosequi or acquittal. Nolle prosequi, or nol pros, means that the prosecutor is dropping the case. This law applies to nol prossed cases that are three years old, but expungement can be accelerated if the defendant files a Release agreeing not to sue others for the charges that were filed. However, if a defendant is convicted on any one count in a case, the case cannot be expunged. (Hopefully, prosecutors can see the expunged cases on local rap sheets. Having a full picture of arrests is critical to making informed judgments on the dangerousness of an offender.)

    Second, Case Search will immediately expunge every count in a case that results in nol pros or acquittal. Case Search is maintained by the judiciary and, as its website proclaims, “is the primary way that the public may search for records of court cases.” But Legislators have gone beyond the expungement law to (1)make a nol prossed case immediately disappear from view, and (2) block the ability to evaluate a plea bargain even when there is a conviction. For example, if a person is charged with Armed Robbery, but pleads guilty to misdemeanor assault and theft, the nature of the original offense is obscured. One might think the offender could have been arrested for petty theft and then pushed the arresting officer.

No doubt these expungement laws had a noble purpose behind them. But such widespread opaqueness may not serve the personal safety interest of ordinary citizens. And it most definitely shields public law enforcement agencies from accountability.

Consequences of Case Search Expungement
Ordinary citizens. I can easily think of three situations (and plenty more exist) when a member of the public should have access to Case Search and automatic expungement should not apply:

• A victim in a case where the prosecutor drops the case behind the victim's back.

• A family that wants to rent out its basement apartment. Legislators may think it irrelevant that the defendant was recently charged with gun possession and drug dealing. The family would not.

• A woman in a dating relationship could never find out that prosecutors twice dropped domestic assault cases against other women.

    Proof beyond reasonable doubt is an appropriate standard in a criminal trial when a person's liberty is at stake. But the standard prosecutors use to charge - that is is more probable than not than a person committed a crime - is relevant to ordinary citizens making decisions about their safey.  

Conviction rate. Let's be clear: not counting dropped cases in conviction rates misleads the public. While legitimate reasons exist for not pursuing cases, when prosecutors charge cases and then abandon them they should explain. Otherwise high conviction rates can be achieved simply by dropping many and plea bargaining the rest away, trying as few cases as possible. Exactly what this study reveals.

    I can only report on 430 cases because another 111 disappeared from Case Search. Some of them may have been transferred to federal or juvenile court, but most were likely just dropped by city prosecutors. If only 80% were dropped, the conviction rate for felony cases that prosecutors charged would be closer to 60%. But without knowing for sure we can't accurately calculate the conviction rate.

Prosecutorial accountability.  Lack of information to Case Search shields prosecutors from scrutiny of their case handling.

    As noted above, the prosecutor in the Brinkley case dropped three additional cases involving violence or guns. We would not know about them had the new expungement laws then been in effect. In cases tracked since August he has dropped gun possession and attempted murder cases which are now invisible on Case Search.

    In another case with another prosecutor, a woman fired a gun at her domestic partner. The shooter had a prior record for domestic assault, a violation of probation, and had violated home detention while the shooting case was pending. Nevertheless, the prosecutor offered and the defendant accepted a plea to probation for misdemeanor assault and reckless endangerment. The judge refused to accept the plea because the charges did not reflect the seriousness of what happened. In response, the prosecutor dismissed the case. ("Unbelievable" said the judge.) This case has now disappeared not only from Case Search but from all court records. Presumably, the defendant filed a waiver to accelerate automatic expungement.

    The same prosecutor, who appears to specialize in domestic violence cases, pled another case to misdemeanor assault for unsupervised probation without a conviction. The original charges are now gone. From the charge and sentence one might think this was a minor case. But the defendant, along with her boyfriend, physically attacked the mother of her boyfriend’s baby, beating her up and fracturing the eyesocket of the baby she had been holding.

    This is the same prosecutor who recently made news for pleading a man to probation who set fire to his girlfriend’s house while she slept inside. When cases or serious charges disappear, the public can't discern a pattern of giving away cases.

    These results come from the “Gun Violence Enforcement Division” and the “Special Victims Unit” of the Baltimore City prosecutor’s office. How well can the performance of these units, or the office as a whole, be assessed when nol prossed cases are hidden and plea bargains obscured?

More Cases
884 total cases were collected from 21 dockets in the Reception Court of the Baltimore City Circuit Court in August and September, 2021. 344 cases were still pending as of December 31. In addition, cases collected from eight felony dockets in January and February of this year are being tracked.

    More results to come.

*Addendum:  Six months after his plea bargain on the home invasion, Brinkley received an additional 12 years for violating probation on an armed robbery conviction.  This was not part of the plea bargain - in other words, the prosecutor took a chance that the judge who had Brinkley on probation would give him all of the 12 years that were suspende.  The prosecutor should have tried the home invasion case and pressed for the maximum sentence in light of Brinkley's record.  Instead, he gave the case away, preferring instead that Brinkley take his chances with the probation judge.  The plea was a disgrace - and, unfortunately, typical.  

The Choice for State's Attorney

Marilyn Mosby is the most incompetent state's attorney Baltimore has had in my 30 years as a city resident (21 of which I spent in the state's attorney's office.)   Crime has exploded on her watch, and despite her shucking of all responsibility, much of the blame lies with her.  

First, her ethically and legally flawed prosecution of the Freddie Gray "six" produced a profoundly chilling effect on the police department, which could not depend on Mosby to apply the law and facts without bias as it did its work.  Second, she has decimated the State's Attorney's Office, which now lacks the experience and talent to successfully focus resources on fighting crime.  Mosby was not qualified for the job to begin with, and has since demonstrated an unfitness of temperament and judgment to learn anything along the way.

But right now a vote for or against Mosby is a referendum on the Freddie Gray case.   I believe that most city voters who don't understand the law or know how she has destroyed her office will want to reward her for "trying" to do something about police brutality.  Only the passage of more time and escalating suffering at the hands of violent criminals will change that.

Nevertheless, one can hope for a change, although my faint hopes were nearly extinguished when neither one of her two challengers withdrew before the ballot deadline.   A split non-Mosby vote ensures four more years of Mosby ineffectiveness.

But despite my pessimism, I still choose to vote.  On the eve of early voting, for those who want to know my opinion, here it is.

Thiru Vignarajah  is a very smart man, smarter than me, and smarter than Ivan Bates, the other challenger.   He has a plan to fight violent crime that he could very well put in place.  (By the way, all the "plans" sound alike.  Focus on violent offenders, provide treatment for the non-violent, etc. etc.  For me, the devil is in the details, and most especially in one's ability to execute those details.)  Vignarajah appears to understand how to implement a strategy better than  Bates.  I also believe he is the harder worker, who will pour energy into the job. 

Bates is a likable man who came up through the ranks in the city prosecutor's office.  He spent less than two years in the homicide unit, his last stop, before leaving for criminal defense work, so his claim of being "undefeated" in prosecuting murder cases always struck me as hyberbolic.  He got into a spat with Mosby (who tried no murder cases) and Vignarajah about it the other day, but what bothered me more than an exaggerated claim was Bates' resort to a silly conspiracy theory:  that Vignarajah was in the race to benefit Mosby.  Voters don't need more garbage to sort through, especially from someone who wants to be the top law enforcement attorney.

I don't believe that Bates is the high-energy, strategic thinker that Vignarajah is, but he is a competent and intelligent attorney.  I think he will improve recruitment and retention in the prosecutor's office, and will bring in the people who can help him execute a focused plan.  He is not an egotist, someone who thinks he knows better than anybody else, and he will listen, both critical qualities in a leader. 

On strategical thinking, on physical energy, I give the nod to Vignarajah, though I expect Bates to do fine.  But there's a final category that's very important to me: ethics.  Vignarajah came over from the U.S. Attorney's office to lead a special crime-fighting unit for then-State's Attorney Gregg Bernstein.  There he demonstrated the smarts to learn quickly and create strategies.  But he also raised concerns about ethics, both in discovery (turning required evidence over to the defense) and in charging.  In his zeal to attain certain objectives, he was not always careful to heed to each ethical standard, causing alarm among well-respected colleagues.  To me, behavior like this is a symptom of ambition, a willingness to short-cut rules to achieve pre-set goals.  Ambition in politics is expected and normalized.  But ambition for something other than adherence to rules and ethics in a prosecutor scares me.  You know, like what Mosby did.

And then there's his judgment when it comes to women.  He promoted a young woman to his special unit who lacked not only the amount of experience that other applicants had, but the minimum experience needed for the position.  And when he left the State's Attorney's Office for the Attorney General's Office, he changed the qualification requirements so that he could hire her there, too.  (They have since been changed back.)

And while at the Attorney General's office, during the course of an attempted sexual encounter, he gave out information about his office that he admitted would be "really bad" if it came out publicly.  Unluckily for Vignarajah, the woman he pursued was not looking for sex but for suckers to compromise themselves on hidden camera.  

Bates is no saint, either.  As a defense attorney, he once admitted to others that he attempted a "trick" in court that he had learned from another defense attorney,  But when called out and investigated for it, he testified that he had not been involved.

I don't like what Bates did as a defense attorney, but I dislike even more ethical compromising from an ambitious prosecutor.   The first duty must always be to the law and the facts, and decisions can't be influenced by personal desires.  

Vignarajah told me how much money he could raise to defeat Mosby.  He failed to deliver.  As of the last fundraising statement, through May 15, Bates had raised more (if one doesn't count the $250,000 Vignarajah loaned to his own campaign.)  Rather than becoming the leading challenger, Vignarajah will play the spoiler.  

So Ivan Bates for State's Attorney.  And whoever wins, God help the city of Baltimore.