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credit: baltimoresun.com

credit: baltimoresun.com

Considering the torrent of entirely reasonable criticism of Baltimore Prosecutor Marilyn Mosby for behaving like an egomaniacal rock star rather than a prosecutor, one would think she would be very cautious about her public appearances and utterances. One would be wrong. The Baltimore Sun, which, by the way, is a traditionally progressive newspaper, has the story:

I was told I was too inexperienced [to run for prosecutor], that I couldn’t raise enough money, that my decision to run could not only disrupt but potentially destroy my husband’s political career,’ she recalled during a speech Sunday in Philadelphia. “For me, as a young black woman, to run against an older white male incumbent, powerful, with the ability to raise close to a million dollars, the skeptics wanted to know: How could I have the audacity?’

It was a line that drew cheers from the largely female crowd of more than 500 people gathered at an NAACP empowerment forum, part of the organization’s 106th annual convention. Mosby ignored the advice and was propelled to victory. At 35, she is the youngest chief prosecutor in any major American city.

‘I tell you my story not to brag or to boast. I tell my story, I share my testimony, because I recognize that I got to where I am today not because of my own doing but because of the blood, sweat, tears and sacrifices of the audacious warrior women who have come before me, who lived their lives by example for all of us,’ she said.

Aw. Isn’t that self-effacing and humble of Mosby?

During her speech Sunday, she shared personal stories of loss, including the shooting death of a beloved cousin when she was 14 that she said helped her turn her pain into her passion to reform the criminal justice system. She talked about setbacks, like when she was wait-listed at every law school she’d applied to and then failed the bar exam the first time she took it. She described how others had doubted her, sometimes causing her to doubt herself. [skip]

‘All too often, in our communities, when we feel we’ve obtained a level of success, we want people to see where we are and not how we got to where we are,’ she said. “But we, as women, must cast our shame, our pride, our egos aside and continue to pass on our testimonies, our tried and tested journeys, to the generations coming behind us.

Uh, right. Whatever that means. Note her use of “testimony,” which has strong religious connotations, as in one that shares “testimony” about their great devotion to God.

Mosby ended by telling the crowd: “Ladies, we have work to do and the time is now.”

Well, there is no doubt that Mosby thinks this is her time to make the most of Marilyn Mosby. Her early critics were right about one thing: she’s proving, in spectacular fashion, that she is too inexperienced.

Change of Venue:

Pre-trial legal maneuvering continues, and one of the most significant issues is whether the trials should be moved elsewhere. The Baltimore Sun updates: 

credit: foxnews.com

credit: foxnews.com

The feeling of unrest among city residents is still chillingly evident as violent crime continues to climb to the highest level in decades, police and community relations remain embattled, and Freddie Gray remains fresh in the minds of Baltimore City citizens,’ the officers’ attorneys wrote.

The recent firing of the Police Commissioner, and the absolute mistrust between the police force and its leadership and the mayor, are significant factors in Baltimore’s increasing lawlessness.

Mugshots for the six officers ‘continue to frequent the local newspapers and TV news broadcasts,’ they wrote, and publicity surrounding the case and the associated unrest ‘has not subsided and shows no signs of stopping.’ [skip]

There are, of course, a great many additional reasons to seek a change of venue, including the surprisingly small jury pool, composed of registered voters. The article does not mention another significant issue: local allies of Mosby and the progressive community have instituted a registration push with the express purpose of getting biased blacks on any jury to ensure convictions regardless of the evidence. The motion (available here) also cites former Commissioner Batts’ public betrayal of the six officers, Mosby’s many prejudicial statements and actions, and the blatantly prejudicial statements and actions of Mayor Stephanie Rawlings-Blake, various city councilmen–including Mosby’s Husband, Nick–and others. The defense also cites voluminous and convincing precedent in support of their motion. Absent from the motion is the snide, condescending language the prosecution has already employed in their legal filings. Again, the defense is behaving ethnically and professionally.

The defense attorneys raised their concerns again in the filing Monday, when they wrote that a ‘review of just a sampling of local press through the Baltimore Sun’ provides ‘clear evidence of the daily articles published either regarding the [officers], Freddie Gray, the riots or all of the above.’

They also cited the ‘media frenzy’ that they said came after The Sun obtained Gray’s autopsy report.

The defense attorneys said that prejudices in the community about the unrest that came following Gray’s death can’t be separated from the case against the officers, even if prosecutors are right that several factors contributed to the unrest.

‘Although there is no question that the general unrest and disenfranchisement of Baltimore City residents stems from a number of social and economic issues, there is no doubt that but for the arrest and subsequent death of Freddie Gray the protests and riots would not have taken place in Baltimore City,’ the officers’ attorneys wrote.

They also reasserted that there are only 276,029 eligible jurors in Baltimore, while prosecutors have cited a much larger regional population total. They included in their filing a letter from Robb Holt, of the Court Operations Department of the Administrative Office of the Courts, corroborating the number.

Attorneys representing the defendants have already filed motions for separate trials for at least two of the officers. Finding a sufficient number of jurors and alternates for multiple trials only compounds the probability that inherently prejudiced juries cannot be winnowed out. If there was ever a clear case for a thoroughly prejudiced community, this is it. What more would be necessary? Signed affidavits of prejudice from every registered voter?

The Relentless Hunt For Justice:

What of the hundreds, even thousands that committed multiple felonies during the Baltimore riots. Is there any effort to identify and apprehend them? The Baltimore Sun has the story: 

credit: washingtonpost.com

credit: washingtonpost.com

More than two months after Baltimore erupted in rioting, teams of police and federal investigators are still combing evidence in a hunt for those responsible for the destruction and looting.

The Baltimore Police Department has formed a task force to identify suspects, while the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives and the Drug Enforcement Administration have called in additional agents to handle the work.

‘The cases are particularly important because many of the people who were involved in committing these crimes acted with the assumption that they had impunity,’ said Rod J. Rosenstein, the U.S. attorney for Maryland. ‘There is a sense of urgency.

And how many have been arrested thus far? According to the article, 20 arrests have been made and they have outstanding warrants for eight more. The DEA has discovered surveillance video of 13 potential suspects and is showing stills of the suspects around, but “No arrests have been made.” The article suggests that some 546 people were initially arrested in relation to the riots, but it is vague on charges. It does mention some 50 that were released because the police didn’t or couldn’t file charges, but is mute on the rest. This is likely because nothing was done with them as well.

Local politicians were less than interested in arrests:

City Councilman Brandon M. Scott said it might not be worthwhile for police to revisit minor cases but that it is right to pursue serious crimes.

‘If it’s people that have destroyed someone’s property and things like that, then of course [police] should still be looking for them,’ Scott said. Focusing on the riot should not distract police from ongoing violence in the city, Scott said, but he’s confident they can handle both.

The article mentions one Wayne Gray, who ended up with a ten-day jail sentence, and was upset with the police. Why? They arrested him and not everyone else that was rioting. Gray quipped:

I made a mistake and misinterpreted my constitutional right.

Yes, Mr. Gray (no apparent relation to Freddie Gray), I’m sure you did. That’s so easy to do: to riot or not to riot? To loot or not to loot? That is the constitutional question. The article also speaks of the cases of the apparently very few actually arrested and charged with crimes thus far, including a rioter described as a high school honor student. Judging from this article, it would not be unreasonable to believe that the political class in Baltimore is not particularly interested in seeing that a significant number of their constituents be arrested for their contributions to chaos.

A View From The Left:

Alan Dershowitz credit: the crimson.com

Alan Dershowitz
credit: the crimson.com

Alan Dershowitz, professor of law Emeritus from Harvard, is one of America’s best know attorneys, and a life-long progressive. However, he can generally be trusted to rationally interpret the law. This article from Newsmax, appeared shortly after Gray’s death:

This is a very sad day for justice . . . Today had nothing to do with justice. Today was crowd control. Everything was motivated by a threat of riots and a desire to prevent riots,’ Dershowitz said on ‘The Steve Malzberg Show.

As Sarah Palin would say: “how’s that workin’ out for yah?”

The mayor outrageously said we’re going to get justice for the victim, the family and people of Baltimore, never mentioning the defendants. Under our Constitution, the only people who are entitled to justice are the defendants.

That’s an important and little understood point: justice is what the system is designed to provide the accused, who stands, alone, against the full might and resources of the state. It is the accused that needs the protections we lump under the category of justice. Social justice, which is what Mosby and her supporters are talking about, has nothing to do with the rule of law.

I understand why the mayor and state attorney want to prevent riots . . . but that’s not the job of the justice system . . . You cannot allow police officers or any other defendants to become scapegoats for crowds demanding a continuation of rioting,’ he told host Steve Malzberg.

‘There’s no plausible, hypothetical, conceivable case for murder under the facts that we now know them. You might say that conceivably there’s a case for manslaughter. Nobody wanted this guy to die, nobody set out to kill him, and nobody intentionally murdered him.’

‘The worst-case scenario is a case for involuntary manslaughter or some kind of reckless disregard, but the idea of without further investigation coming down with murder indictments . . . This is a show trial. This is designed to please the crowd. It’s designed to lower the temperature.’[skip]

‘It may have been the criteria in Rome, for Fidel Castro, in Iran, and in other countries, but in our country you don’t base indictments on what impact it’s going to have on the crowd. You base it on a hard, neutral, objective view of the evidence, and it doesn’t look like that was done here . . . They have invited a mess. What they did is they bartered short-term results today for long-term problems in the future.

As I’ve previously written (the Freddie Gray case archive is here), at trial, Mosby will have to be able to prove beyond a reasonable doubt, each and every element of every offense for every defendant. As with the George Zimmerman trial, Mosby will be proving the defense case, while the defense follows along behind adding a supportive point here or there. Dershowitz agrees:

My prediction? They’ve overplayed their hand, it’s unlikely they’ll get any convictions in this case as a result of this, and if they do, there’s a good possibility it’ll be reversed on appeal and will just postpone the riots for months ahead.

It should be understood that prosecutors often overcharge. Most do it with legitimate charges–actual crimes a defendant has committed–in the expectation of using them in a plea bargain. When I worked car burglaries, I would commonly make cases where a burglar committed fifty or more separate burglaries, committing multiple felonies during each burglary. Prosecutors rightly believed that while they could prove each and every offense, no judge would sentence the maximum, putting the burglar away for centuries. All of the evidence would tend confuse a jury. So we’d offer a guilty plea to three felonies of our choice and dismissal of the rest. There would be no trial, the judge could be informed of all the burglaries–a jury couldn’t–and the burglar would get about the same sentence in either case. In such cases, a plea bargain is a reasonable thing to do, and if the defendant were determined to go to trial, the prosecutor would pare the charges down to a more reasonable number anyway.

Occasionally, however, as in the Gray case, overcharging is done for political reasons. Sometimes the prosecutor is inexperienced or simply not thinking straight. They’re egomaniacs, and/or caught up in progressive ideology. They charge based not on the law and the evidence, but based on what they think things ought to be, and take any attempt by the defendant to actually put on a defense as a personal affront.

In this case, the charges are clearly politically motivated. Mosby declared Gray was murdered, so someone had to be charged with murder regardless of the lack of evidence to support that charge. Desperation also plays a part. Since she actually changed charges, Mosby is clearly hoping that at least a few will stick. Surely a Baltimore jury will convict at least some of the officers on at least a few of the charges?

You heard it here first: if the charges are dismissed or the officers acquitted, Mosby will attack and slander the law and the justice system she claims to serve.

I Knew It:

In Update 9.4–Shhhh! No Talking! 

This coming week, Friday the 26th, is the date Prosecutor Marilyn Mosby is required to turn over all discovery gathered to date to the Defense. I seriously doubt that she will do that. If she turns over any materials, I suspect they’ll be incomplete at best.

As it turns out, I was right. I claim no omniscience. Experience is a good teacher, and the unethical, unprofessional behavior of the George Zimmerman prosecutors is being replayed, virtually move for move, in the Freddie Gray case. The Baltimore Sun reports: 

Attorneys representing the six police officers charged in the arrest and death of Freddie Gray say Baltimore State’s Attorney Marilyn J. Mosby has not shared evidence from her office’s independent investigation into the incident.

In a motion filed Friday in Baltimore Circuit Court, the attorneys sought a subpoena demanding that she turn it over.

As I’ve reported earlier, Mosby conducted her own investigation using some elements of the Baltimore Sheriff’s Office, and her own investigator. She based her charges on this investigation. The Baltimore PD investigation wasn’t completed until much later. It is her investigation she is withholding.

On the day Mosby announced charges against the officers, she said her team ‘worked around the clock — 12- and 14-hour days’ — and recounted their work interviewing dozens of witnesses, watching hours of video footage, listening to hours of police videotaped statements, surveying the route of the van in which Gray was riding and reviewing voluminous medical records.

But defense attorneys say Mosby didn’t include files from the investigation when her office turned over evidence it expects to use in the case to the defense last month.

‘It is the belief of undersigned counsel that the investigation conducted by the Office of the State’s Attorney will be relevant and necessary to the defense in this case,’ the defense attorneys wrote.

Rochelle Ritchie, a spokeswoman for Mosby, declined to comment.

I’ll bet they did. Obviously any investigation used in making charges will be integral to the prosecution of the case and must be provided to the defense. Even someone as inexperienced as Mosby would have been exposed to this basic fact in law school. Why would they seek to withhold it? Two primary reasons: to annoy and harass the defense, and because they’re hiding something. I suspect their evidence does not support the charges, or the conclusions of this hasty investigation blatantly contradict the conclusions and evidence of the later, more thorough and professional investigation. Mosby obviously hopes to bluff or mislead the court and keep it hidden. In the Zimmerman case, that partially worked because the judge was in the tank for the prosecution. Whether that will be true in this case remains to be seen.

This is bizarre:

She [Mosby, in an early public statement] also said that her office had ‘leveraged the information made available to us by the Police Department, the community, and the family of Mr. Gray.’

‘The findings of our comprehensive, thorough and independent investigation, coupled with the medical examiner’s determination that Mr. Gray’s death was a homicide, which we received today, has led us to believe that we have probable cause to file criminal charges,’ she said at the time.

And what information could have been provided by “the community,” and “the family of Mr. Gray”? Obviously, community members could have been witnesses, though apart from Donta Allen, the man who was arrested and riding in the van with Gray for some distance, no one would have direct knowledge of how Gray was injured. That’s also a very odd way to speak of potential witnesses, not something an experienced prosecutor would do. Gray’s family, likewise, would have nothing to add. And how does one “leverage” such testimony? That’s the type of language used by community organizers, not prosecutors.

o-FREDDIE-GRAY-2ND-PRISONER-facebook

Recently, Fox’s Megan Kelly broadcast a special on the Gray case, and provided information about Donta Allen that bodes very well for the defense. Allen, the day of Gray’s death, was in a separate cell of the transport van; he could not see Gray. However, he gave a recorded statement where he said that Gray was making a great deal of noise, and he believed he was trying to hurt himself (prisoners often do this). He also made comments to the effect that he was upset that the police would put him in a van with a “crazy person.”

Kelly then showed video of Allen being interviewed weeks later, after he came to understand how his earlier, true statement, would be taken in the community, and he absolutely denied making that statement, and downplayed what he heard and experienced. Fortunately, as I mentioned, his early statement was taped. In addition, Allen did not present himself as intelligent, and he’s a very poor liar.

This is entirely expected, and is the kind of thing Mosby would want to hide. The prosecution will have to put Allen on the stand–he’s one of their most important witnesses–knowing he’s going to lie. When he does, the defense will impeach him–he’ll figuratively burst into flames on the stand, just as “Dee Dee” did in the Zimmerman case–and the prosecution will look not only like idiots, but dishonest, malicious idiots.

Final Thoughts:

credit: youtube.com

credit: youtube.com

Apparently, Marilyn Mosby believes this time is hers, and she is going to use it to the maximum personal, political advantage. Any rational prosecutor would understand that the day will come when they’ll have to put up or shut up, but Mosby seems unable to confront this reality. Or perhaps she’s such an audacious social justice, woman warrior, she can’t see anything other than the delusional world social justice imagines ought to exist.

The problem is we’re not just dealing with one young woman’s inexperienced, irrational imaginings. We’re dealing with the lives of six police officers and their families, and with the fate of an entire city. We must also remember that whatever happens in this case will be “leveraged” in the cause of racial division and social justice around the nation.

Marilyn Mosby and her political handlers are going to cause more damage to Baltimore and America than we can, at this point, easily imagine, and the federal Department of Justice will be close behind.

I’ll continue to report on the case as new developments warrant.

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