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The Bill Of Rights

The Bill Of Rights

Angela Corey is the unethical prosecutor that lost the George Zimmerman case.  More of the kind of unethical behavior I’ve been expecting From Baltimore prosecutor and her assistants has apparently cropped up. From the Baltimore Sun: 

Defense attorneys for the officers charged in the arrest and death of Freddie Gray are accusing prosecutors of misconduct by ‘judge-shopping’ to get a search warrant approved.

In the latest filing in the case, the defense attorneys cite a police memo turned over by prosecutors that indicates an April 24 application for a warrant to search the officers’ phones was rejected by a District Court judge, who found it lacked probable cause.

Three days later, an officer writes in the memo, a prosecutor called and said he or she had found a judge who had agreed to sign the warrants.

It’s not clear what, if anything, investigators found on their phones.

Oh dear. This is amazing. Unethical, unprofessional, foolish, desperate, plainly stupid–and amazing. Allow me please, gentle readers, to explain.

The power of the government to search and seize property and persons comes directly from the Fourth Amendment, as does the language used in the law and in common conversation. Every viewer of TV crime dramas knows the term “probable cause”–PC–which is actually in the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Keep this in mind.

Nick and Marilyn Mosby credit: the dailymail

Nick and Marilyn Mosby
credit: the dailymail

The defense attorneys say taking a search warrant application that has been denied to another judge is improper. They want a hearing to determine whether any evidence obtained in the search should be suppressed.

Prosecutors have not responded to the motion, which was filed Monday [07-13-15]. The office declined to comment on the allegation.

Staci Pipkin, a defense attorney and former prosecutor in the major investigations unit of the state’s attorney’s office, said the methods the defense attorneys allege the the prosecutors used would be ‘highly irregular.’

‘It’s very frowned upon, because it makes both judges look bad,’ said Pipkin. She is not involved in the case.

Here is what Pipkin is talking about: the document a judge reads to determine whether there is probable cause to authorize a search warrant is called the affidavit. In that document, which is almost always written and delivered by the investigating detective, the detective identifies himself, lists his experience and explains how he came to be working the case. Then he lists all the pertinent facts relating to the request for a search warrant. In effect, he establishes probable cause, which are facts and observations that would cause a reasonable police officer or jurist to believe that specific evidence or fruits of a crime may be found at a particular place. The detective must explain how he came by that information, exactly what the information is, and exactly how it relates to specific crimes.

No competent detective takes an affidavit lacking probable cause to a judge, because he knows the judge will–or should–deny a warrant, and his–the detective’s–credibility will be shot from that point forward–judges talk with each other about such things, and ultimately, all cops have is their reputation for integrity. Once that is lost in the criminal justice system, they’re damaged goods.

David Lat, a former federal prosecutor and managing editor of the Above the Law blog, said prosecutors whose warrant applications are rejected typically seek to improve their argument or present more evidence to the same judge, rather than find another judge.

‘Statistically, search warrants are granted fairly liberally,’ Lat said. ‘So to get dinged on a search warrant usually means the submission was pretty deficient.

Lat is entirely correct. In the normal course of business, detectives understand well what PC is, and virtually always do it right. Judges, for the most part, know this, and assume that any affidavit a detective brings them will be correctly done and will contain adequate PC. Many judges only skim over an affidavit; they don’t read it in depth, because they know they’re dealing with people that have done it right in the past and there is some degree of trust involved in such transactions. The same is true for prosecutors. Judges, for the most part, do not suspect that prosecutors will mislead or lie to them. When they discover that prosecutors have lied to them, they are not amused, and for very good reasons. Not only is it a personal insult, it strikes at the very heart of the confidence the public must have in the criminal justice system. If prosecutors can’t be trusted to uphold the law and to play fair, who can? Who can be confident they won’t be railroaded by corrupt prosecutors?

In this case, if the defense motion is correct, the affidavit must have been absolutely lacking in probable cause. We don’t know if it was written by an investigator or an assistant prosecutor, but–and I am speculating here–what may have happened is the affidavit said they wanted to seize and search the phones of the officers just because people talk on their phones and something on those phones might relate to the case. In order to seize and search a phone, there must be far more specific evidence involved. If not, any officer could seize anyone’s phone for no reason other than that the phone number of a criminal could be stored within, or maybe something in some way relating to a crime was once discussed or texted. If this is the case, no wonder the initial judge denied the warrant.

This is an indication of why discovery is so important:

The police memo that documents the prosecutor’s actions is dated May 12 — 11 days after State’s Attorney Marilyn J. Mosby filed charges against the officers. The officer wrote that he or she decided to write the memo after advising an unknown person about the ‘events surrounding the issuing of the warrants.

As Lat noted, if for any reason a judge refuses a warrant, the detective will never go judge shopping, but will work to find and document sufficient probable cause. Sometimes it’s nothing more than failing to fully write what they know on the affidavit, in which case a quickly and easily revised affidavit does the trick. Sometimes it requires more investigation. This is done because the detective knows he has to rehabilitate his reputation in that judge’s eyes. If he comes up with PC, he’s good. If not, the judge has to suspect that the detective tried to pull a fast one on him, and/or that the detective doesn’t much care about the law/Constitution.

Most states have no law against judge shopping, but competent detectives and prosecutors absolutely will not do it. As Pipkin said, it makes both judges–and the police/prosecutor–look bad. The very fact that a second judge was sought after the first declined to issue a warrant directly implies that the state is up to no good and is trying to trick the second judge into doing something illegal. If a judge can’t trust the word of the police or prosecutors–and judges absolutely talk among themselves about that sort of thing–those officers and prosecutors are severely handicapped.

Again, if the defense motion accurately represents what happened, it looks very much like the prosecutor had no PC for a search warrant, and having been denied by the first judge, went actively judge shopping, not with an affidavit improved by additional investigation and containing sufficient PC, but to find a judge willing to issue a warrant for political or personal reasons. Apparently, they found such a judge, or at least a judge willing to do less than skim the affidavit.

This does not automatically mean any evidence found on the phones will be suppressed. However, judges tend to take such things personally, and they also have strong motivation to maintain the integrity of the system. If the prosecution did what the defense alleges, it’s certainly possible, perhaps even likely, any evidence gathered as a result of judge shopping will be suppressed.

I suspect more of this kind of thing will be uncovered in the months to come.

Hide and Seek:

And speaking of suppression of evidence, there is an additional defense motion of interest. The Baltimore Sun has the report: 


Three of six Baltimore police officers charged in the death of Freddie Gray argued in court filings this week that they provided statements to police investigators under duress because they feared losing their jobs.

Two of the officers said that when investigators asked them to provide statements about the circumstances surrounding Gray’s arrest, they were led to believe they were doing so as witnesses — not as suspects.

Another said she provided a statement without being advised of her Miranda rights, then was ordered to return five days later to be read her rights and provide another statement.

Now those statements are key evidence in the case. Defense attorneys for Lt. Brian W. Rice, Officer William G. Porter and Sgt. Alicia D. White — all charged with manslaughter — have asked that those statements be suppressed, which would prevent prosecutors from using them in court.

In such situations, officers must defend themselves on two fronts: administrative and criminal. An officer might never be charged with a crime, yet be found in violation of procedure and disciplined or fired, which can be a career ender. Normally, officers have no reason to believe they are in danger of being charged with crimes. If the officers involved, particularly those that had little or no actual contact with Gray, believed themselves to be doing nothing more than daily, unremarkable, police procedure they would have no reason to think criminal charges possible, and no reason not to fully cooperate with a departmental investigation, particularly during the early hours and days of the case.

Investigators with the Force Investigation Team brought Rice in for questioning within hours of Gray’s arrest, according to a motion to suppress his and Porter’s statements.

Rice had returned to bike patrol in the Western District when he received orders to report to police headquarters. His interrogation began at 1:24 p.m., exactly four hours after the first call went out for a medic to respond to the Western District station where Gray had been transported.

Investigators told Rice the interview was ‘strictly’ a procedural matter, according to the motion, and that he was being interviewed before the other officers involved in Gray’s arrest because ‘rank has its privileges.’

Investigators repeatedly referred to him as ‘L.T.,’ in deference to his rank, which put him ‘at ease,’ according to the motion.

Porter also was ordered to report to headquarters for questioning. “He was not asked if he was willing to report: he was told,” the motion stated. ‘It was a question of when, not if.’

Rice and Porter acknowledged they were read their Miranda rights, and that they signed a form indicating they were aware of their rights under the Law Enforcement Officers’ Bill of Rights, a state law that provides officers certain protections in internal reviews.

But both contend that signing the form was not equivalent to their waiving rights afforded to them under the law.

Investigators also called White to give a statement on the day of Gray’s arrest, and she did so, according to another motion.

Five days later, she said, she returned to give a second statement after being told ‘investigators ‘wanted to clear things up’ and that the State’s Attorney had additional questions for her based off of her initial statement,’ the motion stated.

If accurate, this sounds very much like the investigators were already thinking of criminal charges, but doing their best not to give any indication of their intention to the officers. We have no idea what, if anything the officers said that might be incriminating. Perhaps Rice might have made some comments, which to him and most officers in most circumstances, would be taken as suggestions for improvement rather than statements about procedural mistakes or potential crimes. If so, an unscrupulous prosecutor could easily misuse such statements to paint a picture of malice where none existed. Supervisors often tell officers, “hey, I’d appreciate it if you’d do ‘X’ a bit differently next time,” or “next time we run into that situation, let’s do ‘Y’ a little differently, OK?” None of this suggests wrong doing, and is normally done to avoid potential citizen complaints, to make things that are entirely proper, but might be misinterpreted by the uninformed, less likely to cause problems.

This is an entirely expected motion. It will be interesting to see what comes of it, though I doubt it will have a great deal of influence on the case.

Mosby’s Cop Family Past: Uh-Oh!

credit: abcnews

credit: abcnews

Marilyn Mosby, despite considerable evidence to the contrary, has steadfastly maintained that she can prosecute the case objectively because “five generations” of Mosbys have been cops. The local Fox affiliate reports that while some of Mosby’s relatives have been cops, there is more than sufficient reason to doubt that fact as bearing on Mosby’s objectivity:

To the rank-and-file officers of the Baltimore City Police Department, please know that these accusations of these six officers are not an indictment on the entire force,’ said Mosby. ‘I come from five generations of law enforcement. My father was an officer. My mother was an officer. Several of my aunts and uncles.

The truth is rather less encouraging:

Mosby’s mother, Linda Thompson, had nine disciplinary actions against her in her 20 years on the force.

The Boston Police Department turned over a document that shows she violated the ‘substance abuse policy’ in 2006. A source familiar with the incident said that Thompson tested positive for cocaine. [skip]

Thompson accepted the 45-day suspension, which meant she agreed to go to a drug rehab.

In 2003, Linda Thompson was suspended for ‘using profane language toward a superior’ and for her ‘refusal to leave a restricted area.’

Other records show she was suspended for two separate incidents in 1996 for not ‘reporting for duty’ and ‘neglect of duty’ — among other charges.

Boston Police Internal Affairs launched an investigation in 1990 into various charges, which a police source told us indicated she lost her police gun. After a hearing, Linda was suspended in 1993 for it.

Most officers with a record of this type would have been fired after the first couple of offenses. Mosby’s Dad didn’t fare quite as well:

Mosby’s father, Alan James, was fired from the Boston Police Department in 1991 on the same day he was acquitted by a jury for assault and robbery.[?!] According to an article in the Boston Globe at the time, the police commissioner fired him for ‘conduct unbecoming an officer.

For any officer to be prosecuted for assault and robbery–unless the prosecution was politically motivated–is extraordinary. But, as the late night TV commercials say: “wait! There’s more!”

Preston Thompson, who is Linda Thompson’s brother and Mosby’s uncle, was fired in 2001 for using cocaine. His record says he was on disability when he was charged with ‘substance abuse policy – two counts,’ ‘conformance to laws – two counts’ and ‘conduct – two counts.’

According to Boston police policy, you get fired after the second time you test positive for drugs.

“Conduct” no doubt means “conduct unbecoming an officer.” This is normally behavior that while not specifically illegal or against procedure, is obviously not the sort of thing anyone wants police officers to do.

However, Preston Thompson then filed a lawsuit against BPD challenging the termination. In a court document, he asserted that hair drug tests don’t prove you ingested the cocaine and could get on your from various ways, including ‘vapors.

“Vapors?!” Right. Unsurprisingly, race also entered into it:

The lawsuit also alleged that ‘BPD hair testing process had a disparate impact on African Americans.’ The plaintiffs added that ‘hair color, racial and/or ‘cultural’ factors, biased the results of a hair drug test, due to the differences in the melanin content, structure and cosmetic treatment of black and African hair versus brown and blonde hair.

As Marilyn Mosby suggested, it runs in the family:

Preston’s brother, Harry Thompson, was also fired from the Boston Police Department. That uncle of Marilyn Mosby was terminated in 1991 after a hearing for three charges from the same event – ‘conduct unbecoming an officer,’ ‘inaccurate reports’ and ‘unreasonable judgment.’

Sources familiar with the BPD polices say that violating these rules alone generally doesn’t get you fired.

“Sources” are probably right. The point is there is almost certainly much more to the incident than the records reflect.

How does this relate to Marilyn Mosby? The records of her relatives–which don’t come close to spanning five generations–are not those that would tend to make any Mosby family member feel warm and fuzzy about the police. Any police officer learning of Mosby’s family history would see her as a rank opportunist and a liar. Police officers are very sensitive about maintaining their good standing as officers, and the errors of ancestors, unfairly or not, reflects on them.

Final Thoughts:

Attorneys for five of the six officers have filed motions for separate trials. Only Officer Goodson, the driver of the police van, has not asked for a separate trial–yet. There are a variety of tactical reasons why the officers might want to be tried together or separately, but in this case, I suspect attorneys don’t want the sheer number of stacked charges to be confusing or influential. A jury might tend to think that with all the charges, the officers must be guilty or something, and if one is guilty of something, it might be unjust for the rest to get off without being found guilty of something or other. Juries sometimes make odd or irrational decisions.

As more and more evidence seems to suggest, so do prosecutors in racially charged, high profile cases.