The Freddie Gray case (the archive is available here), like the Trayvon Martin case, is turning out to be another black hole for prosecutorial competence and ethical behavior. In reporting about and analyzing such cases, I strive to provide perspective that can’t be found elsewhere, based largely on my police experience. In that pursuit, I do my best to explain the “between the lines” motivations and actions of all involved, hopefully so that readers can learn what is actually happening. Usually, this is best accomplished by explaining what one would expect to see if the system were working ethically and professionally, and exposing it when it is not.
Most Americans don’t realize that education in the specific role of a prosecutor is not a topic to which much time is devoted in law school. Certainly, all law students must take basic courses in criminal law and procedure, but for the most part, practical learning and training takes place on the job or not at all. This should help us understand the plight of Baltimore Prosecutor Marilyn Mosby, in office only a short time and with no prior experience, when the Freddie Gray case occurred.
Obviously, Mosby is a young woman–and lawyer–very much in the social justice mindset. She ran her campaign using social justice themes and buzzwords, and her public utterances about the Gray case are rife with them. Newly elected prosecutors in large offices normally lay low and learn from the experienced career prosecutors surrounding them. Social justice cractivists believe they have nothing to learn, but much to teach and impose. Whether his name was Freddie Gray or John Smith, there can be no doubt that Marilyn Mosby would file charges against anyone and everyone in such a case; that’s what social justice warriors do.
That said, I am also always on the lookout for evidence that might tend to support the prosecution. It is certainly possible that one or more of the officers involved made mistakes. Whether such mistakes rise to the level of a crime, and what that crime might be, is another matter. In this case, I’ve yet to see any evidence against the officers that rises to even the level of probable cause for arrest. I’ve seen none that would allow a conviction beyond a reasonable doubt. But I continue to see more and more egregious misbehavior on the part of the prosecution.
It’s Déjà vu All Over Again:
Mosby continues to withhold exculpatory discovery, as the Baltimore Sun reports:
Prosecutors have information indicating that Freddie Gray ‘attempted to injure himself’ during a previous arrest, but have intentionally withheld it from their criminal case against the six Baltimore police officers charged in Gray’s apprehension and death in April, the officers’ attorneys said in a court filing Thursday.
‘Based upon information and belief, the State’s Attorney’s Office was informed of this fact, yet failed to disclose to the Defendants any statements, reports, or other communications relating to this information,’ they wrote.
Could any rational, ethical attorney see this information as anything other than directly exculpatory (tending to prove the innocence of the officers)?
In their filing Thursday, the defense attorneys said prosecutors have withheld ‘multiple witness statements from individuals who stated that Mr. Gray was banging and shaking the van at various points’ after his arrest April 12, as well as ‘police reports, court records, and witness statements indicating that on prior occasions, Mr. Gray had fled from police and attempted to discard drugs.’ [skip]
The defense attorneys also said that Mosby failed to disclose her office’s participation in a ‘private meeting’ with Assistant Medical Examiner Carol Allan before receiving Gray’s autopsy report, which ruled his death a homicide.
They also said Mosby was told by police that a knife found on Gray was spring-assisted — and thus illegal — before she brought charges against the officers.
In announcing the charges on May 1, Mosby said the knife was legal, and Gray should not have been arrested.
Unsurprisingly, the prosecution is maintaining that it has given the defense the discovery to which it is entitled. While this sort of response is hardly unusual in these matters, such assertions work only if the prosecution is absolutely dedicated to justice, which means honoring their obligation to provide all exculpatory evidence. There is more than sufficient reason to believe Mosby is interested primarily in social justice with all of its racial overtones, which has nothing to do with the rule of law.
The assertion about Mosby’s prosecutors holding a private meeting with the medical examiner reinforces concerns about Mosby acting as investigator rather than prosecutor, thus making her and her staff witnesses–and not professional, dispassionate witnesses–in the case they intend to prosecute. The assertion about the knife, if true, destroys Mosby’s credibility. A prosecutor pursuing charges against police officers knowing their arrest was fully lawful is one thing. Continuing to disparage those officers in public over many weeks with the same lie, and using the same lie in documents in court is quite another.
The defense attorneys wrote that they have ‘been forced to spend hundreds of hours collectively investigating the State’s violations in order to understand the full breadth of the harm.’
‘While the defense has now obtained some of this evidence through its own sources, the defense has no idea of what else the State has failed to disclose.’
They asked the Circuit Court to sanction prosecutors in Mosby’s office for the alleged omissions and remove them from the case, to exclude evidence that they say was improperly omitted from discovery, to force the release of a long list of withheld information that they say they found through their own investigation, and to compensate them for that investigative work.
They list several allegations against prosecutors but say the list ‘is not all-inclusive and any inaccuracies fall squarely at the State’s door.
Such motions are unnecessary in most criminal cases, which are straightforward: the police investigation is complete; all materials are turned over to the defense; a plea bargain is worked out. That’s obviously not the case here, and while the defense will likely not get significant sanctions at this point in the case, any prosecutor that would put themselves under a cloud of suspicion before the trial begins cannot be said to be acting in the interests of justice, nor can they be said to be competent. What else hasn’t been turned over?
Defense attorneys said in their motion that there are ‘multiple statements, reports, data and other evidence’ — including evidence they say was produced by the police task force — that were not produced by prosecutors in discovery last month or during an ‘open-file’ review of the evidence last Friday.
They said the state has withheld the opinion of a neurosurgeon retained by the task force that ‘no injury occurred to Mr. Gray outside of the transport van,’ and that the task force could not determine where along the route Gray was injured.
If the prosecution actually has a solid case based on medical evidence, they would want the defense to have all of that information. There could be no professional, ethical or tactical reason to withhold or conceal it.
They also said the prosecution has withheld witness statements, allegedly provided during the grand jury review of the case, that Gray was on his knees at the fifth and last stop in the van ride, and a police re-creation of the route the van took using advanced scanning technology.
They said the evidence could shine more light on when, where and how Gray was injured, potentially helping the defense of one or more of the officers, all of whom interacted with Gray in different ways at different points during his arrest.
Witness statements that Gray was kneeling at the fifth stop of the van, for instance, ‘would tend to prove that Mr. Gray’s spinal fracture had not yet occurred and therefore would tend to prove the innocence of some, if not all, of the officers involved,’ they wrote.
Yes. Such evidence would do that, wouldn’t it? If Mosby were actually dedicated to the pursuit of justice, she would know that and be certain the defense had such evidence.
The evidence — including what was said between prosecutors and Allan, the medical examiner — could also raise questions about the actions of Mosby and other prosecutors, they said, supporting an argument that they be removed from the case.
‘They blurred the line between witness, investigator, and attorney during the pre-charging phase of the investigation,’ the defense attorneys wrote. ‘This was not a ‘get ready for trial’ meeting; rather, this was a meeting which took place before the cause of death was even determined.
‘This meeting puts the State squarely in the center of the circumstances leading to Dr. Allan’s opinions — they are essential witnesses.
You Gotta Shop Around:
Attorneys for the six Baltimore police officers charged in the arrest and death of Freddie Gray presented new evidence Wednesday to support their claims that a prosecutor went ‘shopping’ for a judge to sign warrants for the officers’ department-issued cellphones.
The evidence in their motion included text messages between the prosecutor and a police detective investigating the case.
Obviously this tends to suggest that the defense isn’t merely trying to obscure the real issues.
Defense attorneys repeated their assertion that a prosecutor — identified for the first time as Assistant State’s Attorney Albert Peisinger — communicated improperly with a Circuit Court judge to get the warrants signed after the first judge he tried found that they lacked probable cause.
Defense attorneys say they also discovered an unexecuted warrant for the officers’ private cellphones that was never disclosed to them in discovery, and another warrant — for the same personal phones — that was denied.
The defense filing is a response to a motion filed last week by the office of Baltimore State’s Attorney Marilyn J. Mosby in which prosecutors called the judge-shopping claim a ‘falsehood’ and suggested it would ask the court to sanction the attorneys who brought it.
The defense attorneys say it’s the prosecutors who deserve to be sanctioned.
‘The State seeks to mask their own misconduct with rhetoric,’ they wrote.
In such back and forth motions, it’s common for accusations to fly. What matters, however, is whether there is anything to support them. It would appear that the defense has the evidence to do just that and it is Mosby that appears to be lying.
The defense raised concerns about the alleged ‘judge-shopping’ by the prosecution in a motion earlier this month. Attorneys cited the account of a detective who said he was directed to present the warrant applications to Judge Timothy Doory after they had been rejected by another judge.
Prosecutors responded quickly with a motion of their own in which they accused the defense of making ‘deliberate falsehoods’ and said that a phone call the defense claimed Peisinger made to Doory never happened.
‘The Defendants simply assert to be true what they know to be false,’ the prosecutors wrote.
False, eh? And what evidence does the defense have?
In the motion filed Wednesday, defense attorneys include a phone log that they say shows Peisinger called Doory’s chambers on April 27, around the same time he was texting with the detective working on the case
That morning, the defense attorneys say, the detective had texted Peisinger to ask if the failed warrant application could be improved by adding information that would provide probable cause.
‘We should be fine,’ Peisinger responded, according to defense attorneys. ‘I will call to see if Doory will possible sign them.’
Eighteen minutes later, the defense says, Peisinger wrote again: ‘Waiting for a call back. Spoke to the judges chambers.’
About three hours after that, Peisinger writes to the detective: ‘Calling you now.’
An hour later, the detective writes to Peisinger: ‘Got them signed thanks for everything.
Again, if this is accurate–and the defense would be idiots to so much as misrepresent this sort of evidence–the prosecution has been lying not only to the defense and the public, but to the courts, which tend to take such misconduct seriously.
The defense attorneys say Doory also signed warrants for the officers’ personal cellphones that another judge had denied.
They say Peisinger’s actions were ‘unorthodox and unusual,’ and that his communications with Doory represent ‘legitimate concerns’ about the prosecution’s approach in bringing the charges.
‘Such action by the State suggests that there could have been undue influence … exerted by the Office of the State’s Attorney in its pursuit of a judge who would grant a search warrant after a detached and neutral court had determined that the affidavit lacked probable cause,’ they wrote.
Exactly. Such actions would also tend to badly embarrass the second judge involved as well as the first. Was the first judge wrong–essentially incompetent–in finding inadequate probable cause and refusing to issue a warrant, or was the second judge wrong–essentially incompetent–in finding sufficient probable cause and issuing the warrant? This is why everyone in the criminal justice system does not engage in judge shopping; it tends to destroy everyone’s credibility. Any judge approached by an officer or prosecutor learning that another judge has already denied the warrant would always send them back to the first judge.
Conflict Of Interest?
If one of the prosecutors involved in the case actually defended Gray in the past, would that constitute a conflict of interest? The Baltimore Sun reports:
A lead prosecutor in the case against six Baltimore police officers charged in the arrest and death of Freddie Gray once represented the 25-year-old, according to court filings.
Deputy State’s Attorney Janice Bledsoe was in private practice as a defense attorney in September 2012 when she was appointed by the Office of the Public Defender to represent Gray in a drug case, according to the records.
The Office of the Public Defender pays so-called panel attorneys to take on cases when conflicts of interest arise and its attorneys cannot represent all of the defendants. Several of Gray’s family members also were defendants in the case, according to the records.
Gray ultimately pleaded guilty to a charge of possession of cocaine in May 2013 after spending a year and five days in jail, court records show. He was sentenced to nine years, with all but his time served suspended, as well as 18 months’ probation, records show. Gray subsequently violated that probation.
This is very much in line with what is publically known about Gray’s past.
Defense attorneys for the police officers charged in Gray’s death have not raised Bledsoe’s previous representation of Gray as a concern.
On Thursday, the attorneys said in a statement that they were ‘just learning about the prosecutor’s prior representation of Freddie Gray and are investigating it as we are investigating every facet of this case. We have filed no Motion relative to this issue at this point and will continue to litigate this case in the courtroom and not in the press.
This is the proper posture for the defense to take at this point. Absent some very specific reason rooted in Maryland law to exclude Bledsoe, this issue will likely go no further. Lawyers in a given city or area often find themselves making changes in their career choices. Such changes do not, in and of themselves, normally constitute a conflict of interest.
The Consequences Of Social Justice:
Baltimore reached a grim milestone on Friday, three months after riots erupted in response to the death of Freddie Gray in police custody: With 45 homicides in July, the city has seen more bloodshed in a single month than it has in 43 years.
Police reported three deaths — two men shot Thursday and one on Friday. The men died at local hospitals.
With their deaths, this year’s homicides reached 189, far outpacing the 119 killings by July’s end in 2014. Nonfatal shootings have soared to 366, compared to 200 by the same date last year. July’s total was the worst since the city recorded 45 killings in August 1972, according to The Baltimore Sun.
The seemingly Sisyphean task of containing the city’s violence prompted Mayor Stephanie Rawlings-Blake to fire her police commissioner, Anthony Batts, on July 8.
‘Too many continue to die on our streets,’ Rawlings-Blake said then. ‘Families are tired of dealing with this pain, and so am I. Recent events have placed an intense focus on our police leadership, distracting many from what needs to be our main focus: the fight against crime.’
But the killings have not abated under Interim Commissioner Kevin Davis since then.
Hmm. Perhaps Rawlings-Blake, who infamously announced that she had given the mob “space to destroy,” injure police officers, loot and burn, bears some responsibility?
Baltimore is not unique in its suffering; crimes are spiking in big cities around the country.
But while the city’s police are closing cases— Davis announced arrests in three recent murders several days ago — the violence is outpacing their efforts. Davis said Tuesday the ‘clearance rate’ is at 36.6 percent, far lower than the department’s mid-40s average.
Crime experts and residents of Baltimore’s most dangerous neighborhoods cite a confluence of factors: mistrust of the police; generalized anger and hopelessness over a lack of opportunities for young black men; and competition among dealers of illegal drugs, bolstered by the looting of prescription pills from pharmacies during the riot.
Federal drug enforcement agents said gangs targeted 32 pharmacies in the city, taking roughly 300,000 doses of opiates, as the riots caused $9 million in property damage in the city.
Could there be any other factors involved? Who runs virtually all big cities in America? Democrats. Who is behind the destructive and racist social justice mentality? Democrats. Who then, is responsible for these “lack of opportunities,” “generalized anger and hopelessness?” Whose social programs are abject failure in every possible way? Could it be…Democrats?
Strained relationships between police and the public also play a role, according to Eugene O’Donnell, a professor at John Jay College of Criminal Justice.
You don’t say!
Arrests plummeted and violence soared after six officers were indicted in Gray’s death. Residents accused police of abandoning their posts for fear of facing criminal charges for making arrests, and said emboldened criminals were settling scores with little risk of being caught.
The department denied these claims, and police cars have been evident patrolling West Baltimore’s central thoroughfares recently.
But O’Donnell said the perception of lawlessness is just as powerful than the reality.
‘We have a national issue where the police feel they are the Public Enemy No. 1,’ he said, making some officers stand down and criminals become more brazen.
‘There’s a rhythm to the streets,’ he added. ‘And when people get away with gun violence, it has a long-term emboldening effect. And the good people in the neighborhood think, ‘Who has the upper hand?’
Who indeed? It’s certainly not the honest, law-abiding public.
In cities like Baltimore, adherence to law and order is determined almost entirely by politicians. Under Rudolph Giuliani, New York City became livable and attractive because he understood that allowing criminals to get away with small crimes, like urinating in the streets or harassing passersby, inevitably leads to more serious crimes and the deterioration of living standards for everyone. Enter Marxist lunatic Bill de Blasio, and stop and frisk–which is entirely legal and proper–goes out the window, the mentally ill and filthy who urinate and defecate in the streets are treated as a protected class, criminals know they have free reign, and NYC is already losing decades of progress and civilization. Crime is rising, and NYC is once again a dangerous place to live and work.
Make it clear to police officers, as has been done in Baltimore, that they cannot trust their own administrators, their politicians and the federal DOJ, and they will do as little as possible while still trying to maintain some semblance of dignity and professionalism. They don’t like it, but they have no choice. Any Baltimore officer that fears–quite reasonably–they may be arrested or otherwise sanctioned for making lawful arrests or follow procedure is not engaging in irrational fear, but well understands the political climate in which they work.
As with all social justice beliefs and endeavors, there are inevitable and predictable consequences for the very public social justice warriors claim to love, serve and represent. The very people they purport to champion are always the people most damaged by their self-righteous pronouncements and policies. In Baltimore, and elsewhere, the suffering has just begun.