Is Marilyn Mosby a social justice warrior, determined that social justice be done at the expense of the rule of law, or a nonpartisan public servant, dedicated to equal justice for all? Go here for an explication of the difference between social justice and the rule of law. There are many ways to consider this question, but I’ll focus primarily on one in this article.
Police reports, which includes autopsies, officer’s written reports, diagrams, interview transcripts, evidence forms, photographs and any other documentation relating to a given case are public records. Joe Average Citizen can walk into the local police department and ask for a copy of any report. Police agencies normally charge copying fees for such things, and depending on the size and scope of a case and its investigation, those fees can be sizable, but the information remains public.
There are some obvious exceptions. If an investigation is still ongoing, at least some information may be withheld. Some police agencies and prosecutors may use this exception to conceal things, but eventually, every investigation must end—how can an investigation be ongoing as a trial resulting from that investigation begins?—and then all documents are normally releasable.
In some states, there may be some information shielded from the public by law, but that does not appear to be the case in the Freddie Gray debacle. In that continuing disaster, we now know some interesting facts that shed light on the question of Ms. Mosby’s intentions.
Ms. Mosby has not allowed the defense attorneys representing the six officers to examine the knife taken from Freddie Gray. If the knife is truly legal, this is the first thing she would want the defense to know.
Ms. Mosby is demanding extra time to answer defense motions written by six lawyers, despite having some 200 attorneys on staff.
Ms. Mosby has refused to provide a copy of the autopsy report to the Baltimore Police, the agency charged with the investigation of the alleged crimes.
Because most of the officers have been charged with felonies, their salary and benefits have been cut off, impoverishing them and their families.
Ms. Mosby is refusing to turn required discovery over to the defense.
And then there is this, from the Baltimore Sun:
Baltimore State’s Attorney Marilyn Mosby plans to seek a protective order that would block the release of Freddie Gray‘s autopsy report and other ‘sensitive’ documents as she prosecutes the six police officers involved in his arrest.
Mosby told The Baltimore Sun that prosecutors ‘have a duty to ensure a fair and impartial process for all parties involved’ and ‘will not be baited into litigating this case through the media.
This is deeply disturbing. Allowing the public to see the documents they own is hardly “litigating this case through the media.” It is, in fact, Mosby’s many press conferences and other public appearances that have sparked public interest in the case.
But an attorney for one of the officers said the effort shows that ‘there is something in that autopsy report that they are trying to hide.’
‘Mrs. Mosby is the one who did an announcement discussing what she said the evidence was in a nationally televised speech,’ said Ivan Bates, who represents Sgt. Alicia White. ‘Now that it is time to turn over the evidence, to ask for a protective order is beyond disingenuous.
‘It’s as if she wants to do everything to make sure our clients do not get a fair trial.
It would indeed be reasonable to suspect that.
Baltimore’s chief prosecutor declared her intention to seek the protective order in a court filing Monday. She also asked for more time to respond to defense motions that she and her office be removed from the case and that the case be tried outside Baltimore.
The move is the latest effort by Mosby’s office to restrict information in the high-profile case. Her office has also sought a gag order to prevent participants from discussing the case in public, and has broken with a long-standing practice by not giving a copy of the autopsy report to Baltimore police.
And it just gets better:
In a response to Mosby’s latest filing, defense attorneys said Wednesday that they have been denied an outline of evidence and claims against the officers, and have not been allowed to inspect a knife that was taken from Gray during his arrest.
Bates said the protective order would allow only prosecutors and defense attorneys to see the documents, and could require the court to seal all new filings that make reference to information in the documents.
In that way, he said, it would be more restrictive than a gag order.
‘Nobody would know anything but the state and the defense, so they would totally hide it from the public,’ Bates said. ‘If your case is as good as you said it was, why don’t you just show the evidence? … You can’t holler and say, ‘I’m about accountability for the citizens,’ and then run around filing for a protective order.
Mosby’s behavior is virtually identical to the behavior of the prosecutors under Angela Corey in the George Zimmerman prosecution. After initially making broad public pronouncements that upheld their social justice narrative, they shut down all information to the public. In addition, they stonewalled and obstructed the defense, refusing to release evidence they were legally bound to make available, in many cases, notifying the defense of significant developments, such as the revelation one of their key witnesses was a perjurer, only hours before they would be exposed in court. They went so far as to completely withhold massive amounts of data from Trayvon Martin’s cell phone until mere hours before the trial began. At trial, the reason for their obstruction rapidly became apparent: they had no case. It was the impression of the defense attorneys in that case that only as their case fell apart before their eyes, day by day, did at least some of the prosecutors come to realize they never had a case.
Mosby filed charges against the officers on May 1 based on what she said was an independent investigation conducted by her office. A grand jury indicted White, Lt. Brian Rice and Officers Caesar Goodson, William Porter, Edward Nero and Garrett Miller three weeks later.
In her filing Monday, Mosby said prosecutors had ‘attempted to reach an agreement’ with defense attorney Michael Belsky for more time to respond to the defense motions. Belsky is defending Rice and serving as the ‘designated contact attorney’ for all of the officers.
Belsky agreed to give the state more time to respond to defense motions to dismiss the case, Mosby said, but only ‘in exchange for the State releasing certain discovery,’ including Gray’s autopsy report, medical records and ‘all statements made by the defendants.’
He did not agree to give the state more time to respond to the motion to remove the case from Baltimore, Mosby said.
Notice that the defense is forced to bargain with Mosby to get even a portion of the evidence they are required, by law, to provide. Ethical prosecutors are more than happy to provide the evidence they have, because they do not file unsupportable charges. They know that giving the defense all of the evidence available as soon as possible is to their advantage in that it will encourage the defense to arrange a plea bargain on terms favorable to the prosecution. This is made possible because ethical, competent prosecutors would not think of filing charge before an investigation is completed, or is so nearly completed that there is more than sufficient evidence to prove the case beyond a reasonable doubt even before additional evidence is available.
This would normally mean that there might be a technical report, or an additional supplementary report from an officer still outstanding. In such cases, any additional information would merely be icing on the cake of the prosecution’s case. Under no circumstance would a competent prosecutor file charges he could not be certain he could prove in court. Not only would that be grossly unethical, it would blow up in his face, damaging not only his own credibility, but the credibility of the entire criminal justice system. Prosecutors have enormous power. Abuse of that power is terribly damaging to the trust citizens must have in the system if it is to work.
The officers’ attorneys, in their response, said prosecutors mischaracterized conversations between the sides and failed to provide a reason why an extension is needed. They said the arraignment date has ‘no impact’ on the need for timely responses to their motions.
They noted Mosby’s office took less than two weeks to conduct an investigation into the officers, and said they had ‘deep-seated concerns’ about Mosby attending public events such as a Prince concert and a circus and doing interviews with outlets such as Vogue Magazine while the lives and careers of the officers ‘remain in jeopardy.
Mosby attended a circus for publicity purposes?! It certainly is in character.
The attorneys added that time ‘is not a luxury as the careers, livelihoods, and liberty of the Defendants hang in the balance, four of whom are charged with felonies and thus are no longer receiving the salaries necessary to support themselves and their families.’
White, Rice, Goodson and Porter have been charged with felonies.
‘It’s very disconcerting that six [defense] lawyers were able to write these motions in two weeks, and the state’s attorney’s office has over 200 or some attorneys and they need an extension,’ Bates said. ‘To me, it’s almost as if the state’s attorney’s office is playing games.
Ethical prosecutors do not make prejudicial public statements, nor do they address themselves to mobs and their ill-defined narratives. They do not appear on stage with entertainers, whether at a rock concert or a circus, or give interviews to fashion magazines.
They absolutely provide the evidence necessary to prove their charges to the defense. They do it as early as possible, and hold nothing back. This is so not only because it is their legal, ethical duty, but because it is to their advantage and the advantage of the public. They do not seek gag orders and shut out the public unless there are extraordinary factors involved, factors such as protecting the lives of witnesses or preventing criminals not yet identified or captured from getting information that would help them avoid justice.
They also do not conduct their own investigations. The police are their investigators. They surely do not withhold autopsy reports from the police.
During my police days, I would routinely hand carry reports and updates to the defense attorneys involved with my cases. The prosecutors were only too happy for me to do that as it saved time and money for their staffs, and it always encouraged the defense to quickly plea bargain their cases. The defense knew we were hiding nothing, and that everything we had was unassailable.
Everything that has thus far come to light suggests that not only does Ms. Mosby not have sufficient evidence to sustain the charges, she knows it and is scrambling to keep the defense and the public from having conclusive evidence of her incompetence and malice.
As I have repeatedly noted, these apparent failings do not mean that at least some of the officers involved may not be culpable. It does mean that there is, for the time being, no evidence of their guilt, and Mosby’s actions do not tend to make one confident that such evidence will ever be produced. Quite the opposite.
The SMM Freddie Gray case archive is available here.