Former Baltimore Prosecutor Sarah David (left) credit: baltimoresun

Former Baltimore Prosecutor Sarah David (left)
credit: baltimoresun

As is usual in such cases, with the passage of time, and the lifting of Judge Barry Williams’ gag order, more is known, and some of the unanswered questions about the case, and potential reasons for the inexplicable actions of the Baltimore City Prosecutors, are coming into sharper focus. The Baltimore Sun, now apparently no longer feeling quite so obligated to cover for Marilyn Mosby, reports:

Defense attorneys for three of the Baltimore police officers cleared in the Freddie Gray case slammed Baltimore State’s Attorney Marilyn J. Mosby on Thursday, saying she painted herself as the ‘victim’ of a crooked criminal justice system, rather than acknowledging that she had victimized their clients by filing baseless charges against them.

In their first extended comments since a gag order was lifted after the case concluded Wednesday, attorneys for Lt. Brian Rice and Officers Edward Nero and Garrett Miller told The Baltimore Sun that Mosby had been offered help by the Maryland State Police early in the investigative process, but rejected it.

They said Mosby also could have requested help from a variety of other agencies and prosecutors around the region but did not — instead rushing ahead with what they called a flimsy theory, only to complain after losing about the lack of an independent investigation.

Rice and Nero’s attorneys said their clients had been willing to sit down with prosecutors in the days immediately following Gray’s death to provide a fuller narrative of what happened, but never did.

Regular readers will recall that Mosby claimed to have done a complete, independent investigation, which she said included assistance from the local Sheriff’s Department, before filing charges. As I reported in Update 5, Mosby claimed to have assigned former high-ranking–and thoroughly disgraced–BPD officer Avon Mackel as lead investigator. As I reported in Update 35.6, Sheriff’s Major Sam Cogan, apparently in a deposition, admitted that he did nothing to investigate the case, nor obviously did anyone with his agency. He was given a written PC statement, which he dutifully copied, swearing to the completeness and truthfulness of that which he had no knowledge of.

credit: legalinsurrection

credit: legalinsurrection

But what of Janice Bledsoe and Michael Schatzow, the true believers that relentlessly persecuted the officers any competent prosecutor should have known were innocent? Did they harbor any doubts? Revisit their assumptions?

On Thursday, Schatzow and Deputy State’s Attorney Janice Bledsoe again defended the cases, saying they continued to believe they had enough evidence to convict the officers.

‘We re-examined the cases daily, but no, we never came to the conclusion that there was insufficient evidence,’ Schatzow said.

They said the fact that a grand jury indicted the officers, and that Williams allowed the trials to play out, showed there was merit to the charges.

This statement demonstrates their manifest unfitness for their jobs, and potentially, their inability to recognize, or tell, the truth. After one hung jury and two acquittals, all on the same “evidence” and employing the same “novel legal theories,” they continued to believe there was sufficient evidence? Really? They continued to believe the unbelievable even after the third successive acquittal? Remarkably, it’s possible they did, for they were acting on social justice–emotion–rather than the rule of law: logic and evidence. Of course, there was a great deal of self-interest involved as well. More on this later.

Suggesting the grand jury’s indictments indicate there was sufficient evidence is quite insane. One of the legal profession’s most well-known aphorisms is a prosecutor can get a grand jury to indict a ham sandwich. This is so because grand juries know only what prosecutors choose to tell them. In this case, there is more than sufficient evidence to believe these prosecutors deceived the grand jury.

Judge Williams

Judge Williams

Merely allowing a case to proceed is hardly conclusive evidence of the strength of its evidence. It is a virtual certainty that Judge Williams was allowing the cases to proceed, at least in part, for political reasons. In so doing, he was not doing anything that could be unquestionably seen as reversible error, for such decisions are a judge’s prerogative. It is uncommon for judges to dismiss when defense attorneys move to dismiss at the end of the prosecution’s case, not the other way around, even if judges think the prosecution’s case weak.

In response, Flynn, Belsky and Marc Zayon, who is Nero’s attorney, said Mosby’s lamenting the lack of an outside investigation ignores the fact that the Maryland State Police had offered assistance.

Greg Shipley, a state police spokesman, confirmed that his agency had offered assistance in the case.

‘The Maryland State Police agreed to provide technical assistance to the state’s attorney’s office that would include the expertise of our Computer Crimes Unit,’ Shipley said. ‘Ultimately, we were not called upon to provide any assistance.

That would seem to close off any argument from Mosby or her minions on this issue. Why would they refuse this assistance? They wanted absolute control over the outcome of the investigation and the evidence, particularly the medical evidence. Allowing outside agencies to be involved could easily interfere with their single-minded compulsion for indictments.

The state’s attorney’s office said that ‘while the State Police did offer to provide some assistance, what they were willing to do was minimum and things we were able to do quicker with our known investigators.

Mosby may have known some investigators, but they did no investigation. Her “investigation” was quick indeed. Perhaps this was one of Mosby’s aces in the hole. If Judge Williams were seriously considering forcing her to testify as to the investigation she conducted, she could admit there was no investigation. Bizarre and destructive, yes, but Mosby and her deputies obviously were never thinking straight.

Mosby before the Freddie Gray mural. credit: wbaltv

Mosby before the Freddie Gray mural.
credit: wbaltv

Mosby’s office also could have reached out to any investigative agency it wanted to for help, but didn’t do so, said Zayon, a former Baltimore County prosecutor.

‘For in all likelihood political reasons, this case was indicted within two weeks with basically no independent investigation done, and a very good investigation, done by the Baltimore Police Department, that Ms. Mosby just chose to ignore,’ he said. ‘And now, she should be blaming herself, but instead is trying to deflect the blame and blame everyone else.

But what about the officers? What about their guilty silence? What about their stubborn refusal to abandon their constitutional rights?

Zayon and Belsky both said that in the days following Gray’s death, and before Mosby announced the charges against the officers, Nero and Rice were willing to speak with prosecutors about what had occurred. But they never got the chance, the attorneys said.

‘If there was anything that Mr. Schatzow or Ms. Bledsoe or Ms. Mosby wanted to talk to Officer Nero about, we would have been more than happy to sit down and tell them anything that they wanted to know. But instead of talking and trying to get information from the officers, within two weeks they indict them and charge them with crimes. No one was hiding anything,’ Zayon said.

‘My client was asked if he wanted to give a statement to the state’s attorney’s office, and my reply was that I was inclined to do it. Within 24 hours, I never received a phone call and he was charged,’ Belsky said. ‘He was willing to sit down and talk to them, and instead they just went and charged him. They didn’t care what he had to say.

They weren’t interested in the truth, they were interested in charging,’ Zayon said.

courtesy of: ackbarsays

courtesy of: ackbarsays

Assuming this is true, and I have no reason to doubt it, this clearly indicates the Prosecution’s lack of respect for the law or even minimal professional behavior. After asking officers to give statements, they charged them instead. Any competent prosecutor would absolutely want to have any statement they could get from the officers. Not only would it further their obligation to do justice regardless of where the evidence led, It would allow them to be far better prepared if they went to trial. But in this case, there was no investigation, no investigators to interview the officers, and there was no question about charging the officers regardless of the complete lack of evidence.

Belsky said the defense has ‘no clue’ what prosecutors presented to the grand jury to have their cases ‘sanctioned and blessed,’ as Mosby claimed, but called on Mosby to release transcripts of the proceedings.

Flynn said prosecutors ‘irresponsibly’ made allegations about misconduct by police officers, including her client, both at trial and in their comments on Wednesday and Thursday, without producing any evidence to support the claims.

‘I’m not sure that’s going to go unanswered,’ she said. ‘It’s wildly irresponsible.

Belsky is referring to disciplinary proceedings by the state bar and the civil suits filed against Mosby and her deputies and Major Sam Cogan. Mosby will absolutely fight the release of that information, though it may eventually be leaked through discovery in the civil cases. The information therein will not be surprising, but it will be interesting, and likely, disgusting.

In Update 38, I noted that Deputy Prosecutor Lisa Phelps, who was to have prosecuted the final two cases–those of Sgt. Alicia White and the retrial of Officer William Porter–abruptly resigned shortly after Mosby’s social justice rally announcing the dropping of all charges. It turns out Phelps’ resignation wasn’t the only one, as The Baltimore Sun reports: 

Lisa Phelps (center) credit: baltimoresun

Lisa Phelps (center), Sarah David (left)
credit: baltimoresun

Another prosecutor who was set to try two of the remaining officers charged in the arrest and death of Freddie Gray has left the Baltimore state’s attorney’s office.

The departure of Sarah David follows that of veteran Assistant State’s Attorney Lisa Phelps, who quit last week, two days after State’s Attorney Marilyn J. Mosby dropped the three pending cases. Sources close to Phelps said she had objected weeks earlier to trying the case of Officer Garrett Miller, which was to have begun July 27.

David confirmed that she had resigned from the office and said she will be joining the office of state Sen. Bobby Zirkin, a Democrat from Baltimore County, as his chief of staff.

David, who joined the office in 2014 and was a prosecutor in the misdemeanor unit, declined to address her reasons for leaving but said they were the same as those reported as the circumstances behind Phelps’ departure.

Zirkin, David’s new boss and chairman of the Maryland Senate’s Judicial Proceedings Committee, has criticized Mosby’s comments on the right to bench trials. Zirkin told The Baltimore Sun last week that the idea of giving prosecutors a say in bench trials was ‘moronic’ and had ‘0.0 chance’ of advancing in the legislature.

Zirkin said he had an opening on his staff and has known David for years. She helped manage his first campaign for Senate, and her father was his academic adviser at the Johns Hopkins University.

‘I think Sarah is brilliant, and I’m really lucky to have her,’ Zirkin said.

A common social justice attitude is when the law and due process protections get in the way of a proper social justice outcome, the law and due process should be abolished. Thus does Mosby argue to do away with a defendant’s right to choose a bench trial or a jury. Thus does Hillary Clinton argue that the First Amendment must be abandoned because it allows the little people to criticize her. Fortunately, there are people like Zirkin standing in the way.

David’s resignation, immediately following that of Phelps, makes clearer what happened to end the Freddie Gray case. No doubt Mosby, Schatzow and Bledsoe were hell bent for leather to continue, even though any rational, professional prosecutor would have long ago concluded there was no evidence, no legitimate legal theory, and no possibility that Judge Williams would suddenly convict an officer based on the same presentation he had three times rejected with careful and unassailable reference to the law and the lack of evidence.

And then there was Phelps and David. It’s particularly ironic that it was the persecution team’s own lack of foresight that forced Mosby to appoint them to prosecute the final two cases. Their forcing of officers to testify against their co-defendants, which did nothing at all to help their cases, put them in the position of having to step aside for Phelps and Davis. It also put them in the position of having to testify to convince Judge Williams nothing those officers said would be used in the trials of White and Porter. The last thing they wanted to do, despite their claims to the contrary, was to be forced to testify under oath. All manner of uncomfortable, even criminal, tidbits might come to light.

But more damaging was the almost certain fact that Phelps and David were unwilling to abandon their professional obligations and the rule of law. They, unlike the persecution team, took their oaths of office seriously. They were determined to seek justice; Mosby and her minions were not–quite the opposite.

Did Phelps and David absolutely refuse to prosecute? Perhaps, but that would not have been necessary. Merely expressing grave doubts, making it clear their hearts weren’t in it, making it clear they were not true believers, would have been enough. Suddenly dropping Phelps and David and assigning someone else was untenable. That would have been too public, too bizarre. The impropriety would have been inescapable. Judge Williams, even the local, friendly media, would have to pursue it, and the defense lawyers would have attacked it like a terrier with a rat. Mosby had no choice; the cases had to be dropped. But she did have a choice about upholding the rule of law, or taking the side of social justice. She chose poorly.

Were David and Phelps fired? That’s certainly a possibility. But even if they were not explicitly fired, continuing to work for Marilyn Mosby would have been impossible, not only morally, but practically. She does not strike me as the forgiving, understanding, ethical type.

There is yet another ugly, perhaps despicable and unforgivable, side to the persecution of the officers. This is likely one more reason Mosby and her minions wanted to drag things out as long as possible. It’s also a sign of her bad faith from the beginning. Some have argued the officers really didn’t suffer because they didn’t have to pay their defense costs. Not so. The Baltimore Sun reports:

When six Baltimore police officers were charged in the arrest and death of Freddie Gray, family members and friends sprang into action to help them avoid spending even a single night in jail.

They did so the same way thousands of other lower- and middle-income families in Baltimore help loved ones avoid pretrial detention each year: by promising to pay a bail bondsman 10 percent of the full bail set by the court, regardless of the outcome in the case.

Fifteen months later — with three of the officers acquitted and all charges against the others dropped — attorneys for some of the officers say the debt their clients assumed, and are still paying off despite being cleared, represents a lingering injustice.

They say Baltimore State’s Attorney Marilyn J. Mosby was more interested in ‘political grandstanding’ than in justice when her office recommended bail of $350,000 for the four officers charged with felonies and $250,000 for the two facing misdemeanors.

These are extraordinarily high bails for any criminal defendant outside of capital cases. Bail is established to ensure the appearance of defendants. High bails should be imposed only in the most serious cases, with defendants with no ties to a community, people who are either continuing dangers to the community, high flight risks, or both. The officers were none of these, yet Mosby argued as though they were serial killers, and got her way. A bail of $250,000 dollars for misdemeanors is virtually unheard of. In all my years in the criminal justice system, I never saw anything like it.

The bail debt was particularly devastating for the four officers facing felonies, whose pay was suspended for more than a year while they awaited trial, said Ivan Bates, an attorney for Sgt. Alicia White.

White’s bail was set at $350,000 after she was charged with involuntary manslaughter and other counts — all of which were dropped last month.

‘She doesn’t come from a wealthy family,’ Bates said of White, who put down $7,000 the day the charges were filed and agreed to pay a bail bondsman 70 monthly installments of $400 thereafter, according to court records. ‘She’s really struggled. Really struggled.

Wouldn’t we all? While it’s true the police union picked up the tab for the officer’s defense, no union pays bonds. The union was able to fund the defense only because the involved lawyers gave significant discounts, and even so, the union would have been bankrupted if the officers did not unanimously vote to double their dues. Every officer recognized that with Marilyn Mosby and her minions in office, they would need every penny for their own future defense.

Final Thoughts:

Screen Shot 2016-07-27 at 12.52.23 PM

Marilyn Mosby lied about a non-existent investigation. She lied to the media and the public. She lied to the courts. So did her minions. They lied to the grand jury and indicted honest police officers they knew to be innocent. They arguably suborned perjury. They provided false probable cause statements. They denied exculpatory evidence to the defense–repeatedly. They demanded absurd, unreasonable bonds and politically manipulated the system to get them, ensuring that the six officers–and their families–no matter what, would be badly financially damaged. They acted in bad faith, in violation of their oaths and every standard of professionalism and human decency.

Everyone involved in this grotesque miscarriage of justice, in these crimes, should be disbarred and successfully sued. They should be made to suffer as they have forced innocent men and women and their families to suffer. Marilyn Mosby should be impeached, and her minions fired.

Unfortunately, as corrupt as the Maryland Bar is, and as Mosby and her minions enjoy immunity regardless of their inhuman and illegal actions, this is unlikely. There’s irony for you: a corrupt prosecutor and her lackeys immune from the very law–and punishment–they seek to destroy.

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