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.
But what is laughably ironic is that Mosby’s gag order motion was denied–because Mosby filed it in the wrong court!
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.
FINAL THOUGHTS:
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.
seeingeye2 said:
“…she knows it and is scrambling to keep the defense and the public from having conclusive evidence of her incompetence and malice.”
That ship has sailed.
DNS said:
Hopefully these officers will end up very well compensated for this witch hunt. Icing on the cake would be formal charges filed against every member of the prosecution that had any part in this obvious fraud. Mosby is incompetent to hold a janitorial position in her office. Reminds me of someone else who has a position of power only becasue of his so called disadvantaged skin color.
Mike McDaniel said:
Dear DNS Guns:
Unfortunately, prosecutors and judges have essentially absolute immunity from prosecution or civil suits for their official actions. They may be disbarred for unethical behavior, but that too is relatively rare, and is a process as riven by politics as is politics itself.
Elliott said:
They do according to Buckley v. Fitzsimmons, 509 US 259 (US Supreme Court 1939) EXCEPT when the police are not the investigators as Mosby has claimed repeatedly by using her own investigators who are solely within her control. http://legalinsurrection.com/2015/05/freddie-gray-case-detailed-analysis-of-motion-to-recuse-prosecutor/ “Buckley also notes, however, that a prosecutor who acts as an investigator and not as an advocate does not enjoy absolute immunity.” Add this to the problem that her own investigators will be called to testify at trial for further conflict of interest. She has no idea what she is doing.
everlastingphelps said:
Even in those cases, though, Buckley limits the qualified immunity to the investigative part, not the actions they take as a prosecutor. If the prosecutor acts like an investigator and violates a witnesses’ rights in an interview or illegally serves a bad warrant, they have qualified immunity. Anything that they do that is in the normal scope of prosecution, even if they have done other investigatory things, is still under absolute immunity.
Mike McDaniel said:
Dear everlastingphelps:
Quite so. Thanks!
BillDes said:
Well said Mike! Thanks.
If Mosby does actually have something more than she is letting on…she should really take her game to Vegas as she would be one hell of a poker player.
It certainly appears everybody can see right through her bluff, and she knows she’s screwed.
Leonard Jones said:
I predicted this on Mike’s Blog back in the Michael Brown case. By now, everyone
on this Blog is aware that I am opposed to the pretrial release of information
(from either side.) But I am also aware that when the criminal justice
system is corrupted by a political agenda, this may be the only way to
correct a false narrative.
Only after a never ending false narrative and corruption of the process
did the Sanford Florida PD release the details in the George Zimmerman
case. Learning from their mistakes, the progressives were calling
for the criminalization of leaks of information about the case to
the media during the Michael Brown saga.
The left seems hell-bent on creating secret “Star Chambers” to replace
the worlds greatest criminal justice system. These cases are just the
first shots in this war. I have been seeing this trend for decades
starting with the McMartin and Rodney King cases. The system
worked despite 24/7 coverage of these cases because the process
was preserved. Now that the left is attempting to change the rules
in the middle of the game, there may be no way for someone to
escape a political witch hunt.
By now, nothing would surprise me but I hope the city of Baltimore
has a strong chain of evidence system, otherwise there will be
a 2″ penknife produced at trial. I may be getting cynical in my
old age, but I am never disappointed whenever I say that the
the progressive left will do ANYTHING to win!
Occasional Thinker said:
I have never been in law enforcement but spent several years in EMS. My old paramedic gut response to this since the beginning has been seizure disorder. Pick the known fact of this incident that would not be explained by a grand mal seizure. It will be hard to prosecute anyone for self inflicted injuries secondary to a seizure. It would be an excellent reason to conceal medical records and autopsy reports as long as possible. As said, nothing to back this but a gut feeling which I learned to trust as a survival asset in some bad situations.
Mike McDaniel said:
Dear Occasional Thinker:
Welcome to SMM and thanks for your comment. As I’ve suggested in earlier articles, a complete autopsy, looking into such things as a seizure disorder, will be absolutely essential in this case. The fact that Mosby is trying to hide the autopsy results thus far obtained suggests strongly that those results are not helpful to her narrative. If the information about early and significant lead exposure is right, brain damage, including seizure disorders, are surely possible.
Thanks again!
Elliott said:
And his treatment records in the hospital since that is where he died. His labs and tox reports at admission and at death may be quite different. He also had major orthopedic surgery with neurological damage which has mortality risks in itself. Mosby only got the autopsy a couple of hours before she announced the charges. Did she even read it? Did she understand it as a non-medical person? How could she go through it in a couple of hours?
pk said:
Hi Mike. Do you think well be in trouble in Charlotte, NC after the Kerrick trial starts next month? CMPD officer Randall Kerrick was arrested within hours (less than 24)after he shot Jonathan Ferrell. I’m sure that’s why its been so quiet. Oddly enough our police chief announced that he will retire July 1st, so the timing isn’t ideal.
Mike McDaniel said:
Dear pk:
Hard to say. That one hasn’t received much national attention. Much will depend on whether there are any political points or money to be made, compared to the more widely publicized cases like Freddie Gray.
pk said:
One thing that seems odd to me is that the 1st grand jury sent it back as no true bill, so it was resubmitted to another when they changed a week or so later. It seems odd that they can just resubmit until they get the answer they want.
The city already settled with the family for 2 mil so that may keep things low key if he’s not convicted. I doubt the circumstances will allow for one.