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credit: Annie Lebowitz for Vogue

credit: Annie Lebowitz for Vogue

I’ve previously observed (the SMM Freddie Gray case archive is here) that the Freddie Gray case, like the Trayvon Martin case, is a backwards, bizarro world case. The roles of the prosecution and defense are reversed. Instead of being a model of ethical probity and calm, professional demeanor and argument, the prosecution is behaving like stereotypical defense lawyers that will say and do anything to get their client (defendants) off (convicted). Hysteria, hyperbole and deception are theirs. Normally, it is defense lawyers that grandstand for the media and behave like rock stars with all their excesses. Instead, Marilyn Mosby appears onstage with Prince, has become the new media darling and giver of “the narrative,” and is drenched in fawning articles in Vogue (available here)–complete with an Annie Lebovitz photo–and Cosmopolitan (available here).

From the Vogue article:

A stunned cheer rose from the crowd as 35-year-old Mosby made her statement. The six officers involved in the arrest of Freddie Gray, who had died in April from spinal injuries sustained in custody, would face 28 counts, ranging from false imprisonment to second-degree murder. In forceful language, Mosby described her department’s investigation and how the state’s medical examiner had ruled Gray’s death a homicide. She acknowledged the unrest in Baltimore, coming on the heels of police killings in other cities of Michael Brown, Eric Garner, and Tamir Rice.

‘I have heard your calls for ‘No justice, no peace,’ she said. ‘However, your peace is sincerely needed as I work to deliver justice on behalf of Freddie Gray.’

Suddenly this young prosecutor who had served barely 100 days in office had become a national figure. ‘I was on CNN, and we were all assured that it would be a routine press conference,’ says Marc Lamont Hill, a political commentator and professor of African-American studies at Morehouse College in Atlanta.

“Instead, Mosby came out swinging for the fences. I was in shock.’ Her statements gripped a country embroiled in a debate about race and police misconduct, and energized those who believed that officers were not being held accountable.

Selma director Ava DuVernay tweeted that she wanted make a documentary about Mosby. The U.S. congressman for Maryland Elijah Cummings, a central figure in the Baltimore protests, told the cameras, ‘Thank God [for] Marilyn Mosby and her team.’

‘It was a powerful act that allowed the city to begin healing,’ says Hill.

‘Within an hour of that announcement, the entire black community was laying claim to her—ready to saint her because she did her job.

“Because she did her job?” One might be forgiven for believing their desire for canonization had a rather less noble motivation.

The Baltimore Sun, in restrained style–I’ll provide excerpts from the actual legal documents involved shortly–provides a hint of some unusual and unprofessional legal wrangling: 

Baltimore State’s Attorney Marilyn J. Mosby’s office has fired back at a defense argument that she should be removed from prosecuting six city police officers in the arrest and death of Freddie Gray because of conflicts of interest, saying in a strongly-worded rebuttal the officers and their attorneys are distorting facts in the hope that ‘vitriol will trump logic.’

The officers’ attorneys have argued for weeks that Mosby and her office should be recused from the high-profile case because of conflicts of interest — including that Mosby could become a ‘central witness’ in the case because her office communicated with police about increasing drug enforcement on the corner where police came in contact with Gray weeks prior to his arrest.

Do you, gentle readers, see what I mean by “restrained?” Mosby is a “central witness” because only a few days before Gray’s arrest, she told the police to focus on drug enforcement at the very corner where Freddie Gray was arrested, a corner that coincidentally happens to be in the district of her husband, a city councilman.

Defense attorneys have also claimed conflicts exist in the fact that Mosby’s husband, City Councilman Nick Mosby, represents the district where Gray was arrested; that Billy Murphy Jr., the Gray family’s attorney, once represented Mosby, sat on her transition team and donated to her campaign; and that Deputy State’s Attorney Janice Bledsoe is in a relationship with WBAL reporter Jayne Miller, who interviewed a key witness in the case and could become a witness herself.

credit: kila.com

credit: kila.com

Let’s review: Mosby has turned Baltimore into a media circus, there has been horrendously destructive rioting, with more virtually certain, the mayor of Baltimore actually said that she gave rioters “space to destroy,” and it is been proved that she ordered the police to do nothing to stop them, though she has lied about both examples of social justice incompetence. The federal DOJ is investigating the case and will surely forcibly take over the Baltimore PD, and the political fortunes of the mayor, Mosby and her husband are directly tied to this case. Gee, I don’t know…could this, and the other issues mentioned in the Sun article, be reasonable grounds for a change of venue and recusal of Mosby, or are these the common, everyday circumstances we see revolving around any trial anywhere? Back to The Sun:

In a 15-page rebuttal to the conflict of interest claims filed Wednesday, Chief Deputy State’s Attorney Michael Schatzow tore into the defense claims — calling them ‘baseless theories’ that are short on facts and devoid of legal foundation.

He said defense attorneys have filed similar motions twice before, to no avail, and have now attempted to remove Mosby’s office from the case five times.

Of course, The Sun doesn’t mention that Mosby has done a do-over on the charges, filed papers in the wrong court, and in general, made a mess of things, requiring quite a bit of extra, updated, legal work on the part of the defense. Some of her actions, such as her ordering the police to focus on her husband’s district, came to light late in the game, requiring revised filings by the defense, as did several other revelations, so Schatzow’s claim of a number of frivolous motions is just a bit disingenuous.

They make arguments for which they can find no authority,’ Schatzow wrote. ‘They distort facts when they do not invent them. They abhor logic, so they do not use it.’

Schatzow called the argument Mosby could be a ‘central witness’ in the case because of her office’s communication with police prior to Gray’s arrest ‘preposterous’ and ‘a fairy tale,’ saying a member of Mosby’s office had ‘merely asked police if they would be interested in a collaborative effort’ to address a crime-ridden corner. He said Mosby never ‘directed’ police to do anything.

Police commanders have already made clear that Mosby did not “ask” the police anything. Rather, she told them what to do. When the prosecutor tells the police to focus their resources on a particular place, that’s not a suggestion, nor do they take it as such. It is not unreasonable to believe that the fact that she directed the police to focus on her husband’s district is not mere coincidence. She will be a central witness because absent her orders, the officers that had a hand in Gray’s arrest would not have been present that day. They were assigned that area in direct response to her directive. Notice this bit of sanctimony:

He wrote that: ‘Mrs. Mosby did not direct the defendants to chase Mr. Gray; she did not direct them to arrest him; she did not direct them to handcuff him and place him in a police wagon without putting him in a seat belt, in violation of a [Baltimore Police Department] General Order; she did not direct them to shackle his legs and put him in the wagon on the floor handcuffed and shackled, but not in a seatbelt, in violation of a General Order; she did not direct the defendants to ignore Mr. Gray’s requests for a medic; she did not direct defendants to ignore Mr. Gray’s medical condition; and she did not direct defendants to pick up another individual in the wagon instead of taking Mr. Gray to the hospital.

The sainted Ms. Mosby did not direct the officers to use the bathroom, comb their hair, breathe, or eat lunch either, but none of that has anything to do with the legal issues at hand either.

Schatzow called the suggestion that Mosby brought charges against the officers to further her husband’s political career a ‘truly breath-taking non-sequitur’ that, if given credence, would prevent her from trying cases in an entire councilmanic district.

‘Mrs. Mosby has shown herself to be a strong, forceful and independent woman. She, not her husband, holds an office won in a city-wide election,’ Schatzow wrote. ‘The notion that she would sacrifice her moral, professional and legal obligations to play someone’s idea of a seventeenth century housewife is condescending, demeaning, and ridiculous.

How dare anyone file professional, common and unremarkable motions in the most-highly publicized and explosive murder case in years! How could anyone possibly suggest that the soon-to-be canonized Marilyn Mosby, “a strong, forceful and independent woman” could possibly have less than saintly motivations for anything she does! Don’t they know who she is?!

On the relationship between Mosby and Murphy, the Gray family attorney, Schatzow said Murphy’s $4,000 contribution to Mosby’s campaign represented just 1.3 percent of her overall campaign funds and ‘hardly seems significant,’ especially considering the Fraternal Order of Police, the union that represents Baltimore police officers, donated $3,250.

Uh, $4000 in a local prosecutor’s election–some sources suggest it was $5000–is a substantial sum of money, and Mosby, no doubt, was glad to have it. Bringing up a FOP contribution is nonsensical. Big city police unions virtually always donate to both DA candidates. If they had not donated to Mosby, that would be worthy of mention.

Schatzow said Murphy’s role as one of 14 members of Mosby’s transition team also ‘does not satisfy the closeness of personal relationship required for recusal,’ and that Murphy’s representation of Mosby was in a ‘frivolous’ Bar Counsel proceeding.

‘The matter involved little work, was resolved in Ms. Mosby’s favor, and is over,’ Schatzow wrote.

Murphy has previously dismissed the claim that his support of Mosby created a conflict.

Attorney Billy Murphy

Attorney Billy Murphy

Any complaint before the bar is a significant matter to attorneys, and this one occurred only six months prior to the Gray case. There is every indication that Murphy remains Mosby’s lawyer. A reasonable observer might be tempted to conclude that Mosby’s actions thus far have been calculated to give Murphy great advantage in his civil proceedings. I’m quite sure Mr. Murphy is denying any conflict, but that too does not bear on the issues at hand.

Schatzow said the claim of an alleged conflict based on the relationship between Miller, the WBAL reporter, and Bledsoe, the deputy state’s attorney, ‘defies common sense.

Really. There is, unquestionably, an intimate relationship. The reporter has been covering the case. What reasonable person would not see a conflict of interest in that, particularly considering that Mosby’s office employs some 200 lawyers, many of whom are presumably capable of prosecuting this case? This is defiance of common sense?

The defense change of venue motion is available here. 

I encourage you to read it and see for yourself if the defense is failing to cite proper legal authority or is refusing to use logic. Such documents are expected to stick to the issues at hand, and to avoid hyperbole, ad hominem attacks and personal insults. It is a very well researched and written legal document, done in the appropriate manner and tone. It is also very convincing. Any rational person reading it cannot help but to be impressed by the voluminous attention to detail and the many supporting citations of fact, precedent and law. Some examples:

In the aftermath of Freddie Gray’s death on April 19, 2014, Baltimore City was engulfed by rioting, burning, looting, and massive destruction. In an effort to restore peace, a state of emergency was declared resulting in Baltimore City being occupied by the National Guard, the State Police, Officers from surrounding counties and states, as well as the Baltimore city Police Depart, in addition to a daily curfew being imposed on the citizens.

During the course of the riots, law enforcement personnel and citizens were injured, millions of dollars of property was destroyed, the economy was severely damaged, city government was shut down and the daily functioning of medical facilities, education, the judiciary, public transportation, traffic and business were disrupted. the reaction to the riots was intense and extensive, including coverage by local, national and social media, public comments by city and community leaders and public demonstrations declaring ‘NO JUSTICE–NO PEACE,’ and ‘NO BUSINESS AS USUAL.’ The criticism from these sources of the actions of the Officers in this case was unrelenting and overwhelmingly negative.

Consequently, each and every citizen of Baltimore City was left with an indelible imprint of the Freddie Gray case as a result of these events. The confluence of these circumstances creates an insurmountable prejudice to these Officers finding fair and impartial juries in Baltimore City and no voir dire process could eliminate.

credit: wbax.net

credit: wbax.net

And this from Mosby’s now-infamous news conference/pep rally:

Screen Shot 2015-07-03 at 10.48.46 AM

Unless this sort of thing–isn’t the National Guard called out all the time to suppress riots?–is a common occurrence in response to similar cases throughout America, it’s hard to imagine how this does not amount to a powerful case for a change of venue. If the request is denied, it’s certainly a powerful issue for appeal.

The motion for recusal of Mosby is also written entirely professionally and does not engage in insults or hyperbole. A copy of that document is available at Legal Insurrection in a related article by Andrew Branca.  I recommend that you read that as well, at least in part, to better understand whether it is the defense or prosecution that is behaving ethically and professionally in this case.

In case you haven’t the time, I’ll enclose some of the prosecutor’s responses to the defense’s well-written and professional motion. That document may be found here. These are the first two paragraphs of the response:

This is the third time Defendants have filed this motion, and it is their fifth separate filing, so far, aimed at preventing Baltimore’s duly elected prosecutor and her entire office from prosecuting them. Bereft of legal authority and factual support, Defendants spew invective, hoping that vitriol will trump logic.

In their quest to avoid the consequence of their action and inaction, Defendants fail to acknowledge adverse controlling authority, despite it having been specifically brought to their attention. They make arguments for which they can find no authority. They distort facts when they do not invent them. The abhor logic, so they do not use it.

The psychological term for this is “projection.” Recusal, in this case, would amount to Mosby and perhaps one other prosecutor, not the entire office. This is particularly deceptive:

Essentially Defendants write that one Donta Allen was a passenger in the police wagon with Mr. Gray during part of the time that Mr. Gray was in the same wagon. Although Defendants have no legitimate access to Mr. Allen’s recorded statement to the police, on the basis of a snippet of the statement in a search warrant affidavit they allege that his statement is helpful to them.

What the prosecution conveniently fails to mention was that when the response was written, the prosecution was refusing to turn over any discovery to the defense. Any lack of knowledge by the defense was the prosecution’s fault.

Consider the tone of this passage, which misrepresents the Defense argument, as does most of the rest of the response:

What is truly stunning and disturbing about this farcical defense argument is that the Defendants contend that if the arrest were legal, there is no basis for any charges against any of the Defendants. Thus, consistent with their acts and omissions on April 12, Defendants are still of the view that once they arrest someone, they are free to engage in conduct that will cause his death, and to refrain from conduct that will save his life.

The response continues a narrative thread already well established in the public realm. It continues the lie that Terry v. Ohio–stop and frisk–does not exist and that whenever police officers briefly stop a suspect, they are immediately, then and there, arresting them.

Just as the prosecution’s responses to the professional and proper motions in the Trayvon Martin case (an example may be found here) the prosecution’s responses in this case are snide, snarky, unprofessional, lacking in support, and unworthy of serious, adult practitioners of the law.

In response to a prosecution motion for a gag order on all evidence in the case, the Defense was equally professional: 

Defense counsel acknowledges the obligation of both defense counsel as well as the prosecution to respect our judicial system.

They also made a substantive, and ironic, point:

Issuance of a protective order is not necessary to preserve the integrity of the adversarial trial system. Rather, refraining from appearing in glossy magazines before the discovery process has begun may help abate the degree of media attention.

Final Thoughts:

I continue to be watchful for evidence and comportment in this case that would suggest that Ms. Mosby actually has a substantial and legally supportable case against the officers. For example, the prosecution’s argument that Gray’s arrest for an illegal knife now seems to have quietly vanished, even though Mosby is still apparently denying the Defense the opportunity to examine the knife, a matter that is normally done without the slightest hindrance.

The prosecution’s response to what are common, entirely expected and professionally executed motions does not provide evidence of probable cause, nor does its attempts to keep the public from discovering the truth about what seems a near-complete lack of evidence necessary to prove any case beyond a reasonable doubt. In fact, the same unethical and corrupt patterns established in the Trayvon Martin case, are very much in evidence here, and will likely lead to the same result. As Yogi Berra once said, “It’s deja vu all over again.” Unfortunately, unlike the Trayvon Martin case, the rioting, arson and destruction are likely far from over.