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credit: baltimoresun

credit: baltimoresun

Supporters of Baltimore Prosecutor Marilyn Mosby continue to protest the slightest suggestion that Mosby’s prosecution of six Baltimore PD officers is in any way politically motivated. Such protestations are made somewhat less effective by Mosby’s political rally announcing the charges where she spoke directly to the mob, telling them it was their time, and she heard their cries for “no justice, no peace,” and similarly trendy social justice narrative catch phrases. Also less than helpful is Mosby’s campaign fundraiser scheduled for September 16, 2015. Why is this less than helpful? She is not up for reelection until 2018. The Baltimore Sun has the story: 

Baltimore State’s Attorney Marilyn J. Mosby has a campaign fundraiser with tickets ranging from $250 to $1,000 scheduled for Sept. 16 — just days after key pretrial hearings in her case against the police officers charged in Freddie Gray’s arrest and death. [skip]

‘Certainly in the midst of so much attention and the nervousness of the city during this period of time, it probably could have been saved for another time,’ said Warren A. Brown, a Baltimore defense attorney who is not involved in the Freddie Gray case. Brown supported Mosby’s opponent, incumbent Gregg Bernstein, in the 2014 Democratic primary.

The article does quote supporters of Mosby, suggesting reasons why politicians need to raise money. However, for many, this is the soul of the problem:

Mosby opted to announce the charges on May 1 from the steps of the War Memorial, drawing cheers from those who wanted to see the officers prosecuted, but criticism from those who saw it as the first of a series of attention-seeking turns. Since then, her appearance on stage at a concert by Prince, as a guest ringmaster at the UniverSoul Circus, and on the pages of Vogue and other magazines have led some to question whether she draws too much of the spotlight to herself rather than to the work of her office.

Please, gentle readers, remind me of other prosecutors who have appeared on stage with rock stars, done Vogue, Cosmo, etc. I’ll wait.

The September fundraiser is yet another of these ‘dangerous missteps,’ said Laura Coates, a former prosecutor in Washington who now teaches and writes about the law. Coates previously criticized Mosby for appearing at the Prince show in a Baltimore Sun op-ed article.

‘It’s almost as if she’s deliberately thumbing her nose at critics,’ Coates said.

Actually, it not “almost as if,” she is thumbing her nose at everyone interested in the rule of law and of equal justice for all.

Carla Miller, the ethics officer for Jacksonville, Fla., who founded a nonprofit, City Ethics, as a clearinghouse for local governments, said she didn’t see a conflict of interest in Mosby having a fundraiser as the Gray hearings were beginning.

Still, the public perception of the fundraiser could be problematic for Mosby. ‘If [your re-election campaign] is three years away, why are you doing it now?

Why indeed?

Elected officials are always subject to people questioning their every move,’ Miller said. ‘Are you taking advantage of the timing? Are you taking advantage of the attention the trial is bringing?’

Brown, [a] defense attorney, said the campaign event may have been scheduled this month to avoid future problems raising funds should the case not go Mosby’s way. ‘This could sour her relationship [with current supporters] and dull her star if things don’t turn out right for her,’ he said.

In other words, she’s raising money now while she can ride the social justice tide, because when she has to produce actual evidence to prove each and every element of each and every crime charged against the officers, her star is going to go supernova. Violent mobs and race hustlers are notoriously fickle. Politicians like Mosby, praised as paragons of social justice righteousness one day, find themselves bouncing off the undercarriage of the progressive bus the next.

Motions Hearing #1: Analysis 

The Guardian reports: 

A Baltimore judge on Wednesday denied a raft of motions aimed at removing state’s attorney Marilyn Mosby from a case involving six police officers criminally charged in the death of Freddie Gray. [skip]The Counted: people killed by police in the United

In court, attorneys for the defence claimed statements made by Mosby on the day she announced the charges ‘poisoned the minds’ of potential jurors, ‘basically trampled’ on the defendants’ fair-trial rights and ‘made a fair trial difficult or possibly impossible’.

The defence also claimed that Mosby had ‘led a sort of pep rally’.

As her representatives defended her against a motion they called ‘nonsensical and ridiculous’, Mosby sat silently in court.

credit: baltimoresun.com

credit: baltimoresun.com

Reasonable observers might be forgiven for imagining that Mosby did, in fact, poison the jury pool with a “pep rally.” Baltimore’s mayor, who said she gave criminals “space to destroy,” while rioting, and later tried to deny she said any such thing, displayed the same kind of respect for justice and the rule of law in commenting on the first motions hearing:

Blake Fires Batts

At a press conference, mayor Stephanie Rawlings-Blake said that this [the ruling that each officer must be separately tried] would mean six potential ‘flashpoints’ associated with them, but said the city would be prepared.

One might also be forgiven for imagining that Ms. Rawlings-Blake is somewhat less than concerned for the rights of the officers charged in this case, as are Ms. Rawling-Blake’s constituents:

The protesters chanted: ‘Indict, convict, send those killer cops to jail. The whole damn system is guilty as hell.’

One protester, Lee Paterson, said he remained concerned that charges could be dropped.

He also said: ‘You know, this whole thing is bigger than Freddie Gray. It’s about poverty.

Uh, poverty…right.

The result of the first motions hearing was entirely predictable. Mosby will not be removed from the case, there will be no sanctions against her (more on this shortly), and each officer will be tried separately. There is still a motions hearing scheduled for September 10, which will primarily decide whether the trials will take place in Baltimore or if a change of venue is necessary.

The media have been nearly unanimous in declaring the hearing a great victory for Mosby, but this is quite misleading. By the normal standards of professional prosecutorial conduct, Mosby has behaved abominably. She has clearly politicized the case, and acted far more like a social justice race hustler and self-aggrandizing politician than a professional, rational prosecutor doing her best to uphold the rule of law and the Constitution.

It may surprise some to learn she was not cleared of all ethical impropriety. Judge Williams observed that he believed the ethics charges were properly addressed by the Maryland bar, not by his court. Practically, this means that she will face no discipline at all. It is possible that if the cases blow up in her face, her political capital may sink so low that even the bar in a very liberal state like Maryland might feel the need for a Shylockian pound of flesh, but no one should hold their breath waiting for that unlikely event.

Keep this in mind: if the rule of law wins the day, if the cases are decided by the letter of the law, based on what is currently known, there is no possibility of conviction on any of the charges. If, however, stealth jurors are seated, or if politics are allowed to play a role, at least some of the officers will be convicted on at least some of the charges, not because they will have been found guilty beyond a reasonable doubt, but because social justice–not the law–demands retribution for every imaginable past, present and future pseudo-wrong. Either outcome may easily become another opportunity for Baltimore citizens and others to help themselves to prescription drugs, and various consumer goods when Mayor Rawlings-Blake provides more “space to destroy.”

Most important is the separation of the trials. Mosby wanted to combine trials in the hope of overwhelming a jury with a smoke screen of insupportable accusations and innuendo. In such a climate, it would be very difficult for jurors to separate every fact and charge and to consider them fully and fairly. It would be easy for the prosecution to so confuse the jury they might be willing to convict somebody of something because where there’s smoke there’s fire. Once any officer was found guilty of any charge, it would have been far easier for a jury to find others guilty on at least one charge. After all, if officer “A” was found guilty of charge 2, why shouldn’t every other officer who was also facing charge 2 also be guilty? Wouldn’t that be fair? Wouldn’t that be justice? The prosecution would surely make that argument.

As I’ve repeatedly noted (the SMM Freddie Gray case archive is available here), this case, like the George Zimmerman case, is a backward case. The roles, intentions, tactics and intent of the prosecution and the defense are, for the most part, reversed. Normally, prosecutors want trials where they are able to present the proof against a defendant in a clear, logical, and simple manner. They don’t want multiple defendants–in most circumstances–because that tends to complicate things and confuse juries.

Normally, the prosecution is concerned, first and foremost, that the rule of law be upheld, that justice be done. It is the defense that has the tendency to do whatever is necessary to obtain an acquittal, and damn the rule of law.

Of course, in most cases, the prosecution does not bring charges they cannot easily and completely prove. More, they don’t rely on the bizarre theory that people can be convicted of murder not for what they did do, but for what they might not have done if a theory of what might have happened is true.

By forcing the prosecution to try each officer separately, the prosecution will have a much harder time concealing the fact that there is not only no probable cause to arrest each officer, but no actual evidence to prove each and every element of each charge beyond a reasonable doubt. Just as the prosecution did in the Zimmerman case, Mosby and her deputies, in presenting their case, will be making the defense case, in essence, proving that the officers could not have committed the crimes. The defense lawyers will merely have to bring up details and make connections that the prosecution tries to conceal, and they will try to conceal any evidence of innocence, and prosecution malfeasance.

If the first officer tried is found not guilty, this will have a very damaging effect on the remaining trials. Not only will that officer be

free to testify to aid his–or her–fellow officers (though the defense may not choose to use this tactic) riots are highly likely.

Which brings us to the September 10 hearing regarding change of venue. It would be difficult to imagine a more compelling case for a change of venue. The negative, prejudicial publicity, fueled by Marilyn Mosby and the media, against the officers is probably unprecedented in American history. Changes of venue have been granted in far less inflammatory circumstances. Regardless of the outcome of any of the trials, but particularly in case of acquittal, riots, arson, and general mayhem are a virtual certainty. The only factor that might tend to dampen such exuberance would be a change of venue, but even that might not suffice.

More than anything, the prosecution will be desperate that all trials remain in Baltimore. Their media publicity team will do all it can to assist.

Judge Williams is not in a good position. He is very much damned if he does and damned if he doesn’t. There is substantial case law on both sides of this issue, but if a change of venue is not granted, the defense will have an unusually powerful issue for appeal, and judges very much hate being overturned on appeal.

At trial, after the prosecution presents its case–which will actually be the defense case–the defense will move for a directed verdict, claiming that the prosecution has failed to make its case. This is normally done by any defense attorney if for no other reason than to cross every “T” and dot every “i,” and to get the motion on the record in case of appeal. Normally, no one expects a judge to grant such motions, but this case may be different.

Unless Mosby can come up with compelling, honest evidence that is, as yet, completely unknown, she will not be able to prove her case and any competent judge should dismiss the case with prejudice when the defense so moves. Given the chance to present all of her evidence in the light most favorable to the prosecution, Mosby will not be able to meet the most minimal standard of proof beyond a reasonable doubt. However, in this politically charged case, where lives, the political careers of many, and the economic viability of a major American city hang in the balance, any judge will be likely to allow the trial to continue to its conclusion so he can blame the jury. It’s what normally happens, so why not let it go to the jury?

Donta Allen: The Plot Thickens

WBALTV reports: 

Donta Allen credit: baltimoresun

Donta Allen
credit: baltimoresun

Donta Allen is considered a key defense witness for the six officers charged in the police in-custody death of Gray. But legal experts believe Allen is becoming a liability. Allen is being held in Baltimore without bail on a fugitive warrant from York County, Pennsylvania, on accusations of forgery and theft by deception.

‘Mr. Allen passed a fraudulent check for over $800 at one of our banks in the area, and he is considered a fugitive at this time,’ York Area Regional Police Officer Peter Montgomery said.

Court papers indicate Allen presented a counterfeit check on July 3 to the York Traditions Bank in York Township, Pennsylvania. Investigators said he tried to pass a business check off as from Yoe Concrete Industrial Services, located just down the street from the bank.’ [skip]

‘In this case, you have credibility problems threefold. One is Donta Allen gave inconsistent statements from one day to the next. Two, Mr. Allen has a prior conviction for armed robbery. Three, he’s pending charges in another state, in Pennsylvania, for stealing money using a counterfeit check. So those are three problems, none of which you want to have,’ [local defense attorney Walter] Alperstein said.

Donta Allen, regular readers will recall was arrested at about the same time as Freddie Gray and rode in the same van with Gray for at least part of the time in question. His initial statement was that Gray (he had no idea of Gray’s identity during their shared ride) was beating himself on the walls of the van–they were not visible to each other and were separated by a metal wall–and he believed Gray was trying to hurt himself. He reportedly told the investigators that he was upset the police put him in a van with a crazy man. Allen wouldn’t have been surprised by Gray’s actions; such things are an integral part of the petty criminal’s bag of tricks, common street knowledge and tactics. However, it didn’t take Allen long to realize that his statement would not be helpful on the street, and Allen has since denied he said any such thing.

Presumably his statement was recorded in some way, and investigators will be ready to testify to what Allen said. Arguments that Allen’s credibility is poor are, in most respects, beside the point. Criminal trials deal with people who are less then ethically pure every day. Relatively few nuns find themselves being prosecuted for felonies. Everyone involved knows that criminals are inherently dishonest. People who, Vulcan-like, cannot tell a lie, tend not to find themselves in the backs of police transport vans.

One should only be surprised if Allen were not in trouble with the law.

The question will be what Allen’s motivations were when he was making statements, and considering those motivations and the situation at the moment, when he was most likely to be telling the truth. The defense will surely be skillful enough to make the case that Allen was telling the truth about Gray’s behavior when he had no idea who Gray was and had no idea of the political firestorm surrounding the case. Thereafter, Allen would have had every incentive to deny his earlier statement and to lie.

Final Thoughts:

The next important motions hearing is scheduled for September 10. I have no idea which way Judge Williams will rule, though there is more than enough compelling reason to grant a change of venue.

I cannot emphasize sufficiently what is likely to occur in these trials. In order to obtain convictions, Marilyn Mosby must be able to prove, beyond a reasonable doubt, each and every element of each and every crime. Normally, much of that evidence–or at least its essence–is present in the initial probable cause statements. In this case, the PC statements were simply copied, cut and pasted, for each of the officers. They were essentially identical, and in each PC statement, there was no probable cause to believe that the officers had committed a single crime. In the normal course of business, no charges would have ever been filed. In the normal course of business, if the system failed to that point, when the defense pointed out to the prosecution that there was no PC, and, behind closed doors, presented a logical argument why their case would fail, the prosecutors would quietly dismiss the case before it came close to a courtroom.


One final point: Marilyn Mosby would be foolish to have any active hand in prosecuting these cases. There is scant evidence that she has any real trial experience, and virtually none as a prosecutor. There are very good reasons that lawyers specialize. Becoming a competent prosecutor takes many years of serious and diligent study, effort, and practice, none of which Mosby has done. There is likewise no evidence of Mosby’s experience in a management role. She will surely feel the compulsion to grandstand, to be seen as a righteous social justice avenger, to deliver the moment about which she bragged to the mob, but if she does, it is highly likely that the experienced defense lawyers involved will hand her head to her on a platter. Whether wiser legal and political advisors can have any effect on an instant celebrity like Mosby when her ego is so badly overinflated remains to be seen. Whether such wiser advisors exist in this case also remains to be seen.

Nothing about this case is pretty. It, like the Zimmerman case, will one day be taught in competent schools of law as an example of how not to handle a prosecution.