In Update 41, we learned, from the mouth of Marilyn Mosby, the morning after Freddy Gray’s arrest and injury, Mosby already decided the police would not cooperate with her, wouldn’t do what she asked, and had made up their minds. This despite the fact that the detectives that would investigate the case probably had not yet been assigned, and had not yet received all the necessary reports. The investigation had not begun. Mosby therefore decided to do her own investigation, which we now know never happened. Mosby had already settled on a social justice outcome and was going to ram it through regardless of the evidence. She would put people she knew to be innocent in prison, if she could. We continue with the story from the New York Times’ Wil S. Hylton:
One element that raised Mosby’s suspicion was the statement of a witness, Donta Allen, who was picked up by the police shortly after Gray and was held in the opposite side of the transport van. Although there was a metal partition separating the two men, the police told Mosby that Allen heard Gray intentionally smashing his head against the dividing wall. ‘Donta Allen, to me, was not a credible witness,’ Mosby told me. ‘This is an individual that says, ‘I know the guy on the other side was banging his head!’ How do you know that? There’s a wall. You don’t know what’s banging. And it’s the same thing that the police officers are trying to say. Meanwhile, Allen hasn’t been charged with anything, and he’s essentially being let go. I need to know who this Donta Allen is. So I had my prosecutors go down to the police station to try to pull the records to see if he’s a confidential informant. My suspicion was that he was.
Notice that Mosby doesn’t answer her own questions. If Allen were an informant, she drops it. Allen was certainly a poor witness, but his statements about Gray’s behavior—before he realized it would be street smart to deny making them–match those of independent witnesses and the police, yet Mosby discards them because they don’t fit her preconceived narrative.
Investigators for the state’s attorney do not have police powers. They can knock on doors, interview witnesses and request public documents, but in order to file a search warrant, they need police support. Mosby said that on a series of requests, she could not get the Baltimore police to comply. “We couldn’t trust that they were going to follow through with everything that we needed,” she said. One of her requests was to execute a search warrant on the personal cellphones of the officers involved. Mosby told me that she knew the officers exchanged several text messages while Gray was in the van, and she believed that the content of those messages would be important to determine what happened.
‘We got a judge to sign off on the search warrant,’ she said, ‘and a police investigator failed to do it. She didn’t execute it, and then returned it and didn’t tell us. It was just incredibly, incredibly frustrating. It was at this point where I was just like, ‘You all, we cannot rely on them, so we have to do something other than working with them.’ The lead investigator for the police, Dawnyell Taylor, told me that the cellphones were actually a ‘nonfactor’ because another officer turned over a personal cellphone to the grand jury that contained innocuous messages with some of the cops involved. ‘You got to see it all,’ Taylor said. ‘It wasn’t going to give us jack.’ (A police spokesman defended the investigation, saying detectives worked with the ‘utmost integrity.’)
Mosby and her chief Deputies, Janice Bledsoe and Michael Schatzow, engaged in a public brawl, savaging Taylor on the witness stand, which blew up in their faces. There is no reason to think Taylor’s account of the cellphones—the police did examine the officer’s cellphones, but did not take them into evidence because there was, by their account, no evidence there—anything but accurate. As with every other element in the case, the prosecutors had no evidence. Since the dismissal of all charges, the police have refused to engage in any argument with the prosecutors.
Mosby said she turned to the state police for help. “We went to them with a number of items in which we said, ‘Can you please follow up on this, this and this?’ And they said, ‘No, we’ll only help you with I.T. support.’
This was a wise move by the state police. They obviously realized what Mosby was trying to do and wanted no part of it. It’s likely they spoke with their contacts in the BPD, and realizing they were handling things professionally, decided not to stick their heads in that particular social justice bear trap.
Meanwhile, if you lived in Baltimore, you could feel the temperature of the street rising. On April 19, one week after Gray’s arrest, the police announced that he had died. Outrage in the city began to swell, and protests filled downtown. On Saturday, April 25, demonstrators clashed with overzealous officers in riot gear outside the baseball stadium, and on April 27, officials responded to a false report of incipient violence by shutting down lines of transportation near a local mall, which only fanned the outrage further: Fights broke out, cars and buildings were torched and 130 police officers suffered injuries.
“Overzealous officers.” “Demonstrators” “clashed” with the police. Author Hlyton blames the riots and damages on the police, just as Mosby blames the police for her inexperience, social justice narrative, and failure.
Mosby said that throughout all this, she watched the mayor, Stephanie Rawlings-Blake, and the police commissioner, Anthony Batts, deliver misinformation to reporters. For example, Batts was undercounting the number of stops the police van made before delivering Gray to medical attention. ‘First Batts said there were three stops, and we knew at that point there were four or five,’ she said. ‘So I sat down with them and said: ‘You know, we’ve got to stop putting misinformation out into the media and giving that to the public. It’s going to be to our detriment.’ They didn’t listen.
Because she decided to arrest the officers long before the police investigation was completed, and because she did no investigation, Mosby was in a very poor position to know any of the facts. Despite their failings, her criticism of Batts and Rawlings-Blake is laughable. While Rawlings-Blake’s ineptitude cost her mayoral post, she and Batts were informing the public with the information they had available at the moment. It was Mosby’s rabble rousing, and her cheerleader-like pep rally in announcing the arrests that whetted the public appetite for information.
Mosby also believed that the Police Department was in a rush to close the case. She said that Batts ‘came up with this fictitious timeline as to when the investigation would be complete, on May 1. So I’m like: ‘Where are you getting this? The autopsy report isn’t even usually completed that quickly.’ Then the mayor started telling the media, ‘Oh, absolutely we know that this death took place inside of the wagon.’ Wait a minute. The investigation is not even complete. How are you going out to the public and saying you know for certain that this took place inside of the wagon?
Suddenly, Mosby is concerned with a supposed rush to judgment by the police. What the police were certainly telling her was they expected to complete their preliminary investigation by May 1. This is common. Within a relatively short time, they would be able to give a general date when they’ve had the opportunity to deal with all known evidence. That doesn’t mean they know everything, but they would have a preliminary conclusion based on all known evidence.
In private, Batts and Rawlings-Blake are equally critical of Mosby — and sometimes each other. Rawlings-Blake fired Batts as commissioner in July 2015. When I contacted the mayor about Mosby’s comments, she chose not to respond on the record, but Batts vehemently denied putting out misinformation. He said he thought it was important to report progress in the investigation as it happened, even if some details were likely to prove wrong. ‘Cases change as you get more information,’ he said. ‘But you’ve got to tell people something, and you’ve got to tell them as much as you can to be transparent.’ He said that although the preliminary police investigation was ending, he expected Mosby’s investigation to continue beyond May 1.
The political pressure for “transparency” was surely intense. There is no evidence anyone engaged in “misinformation.” They merely reported what they knew at the time, and some of that information turned out to be mistaken, or was updated later when more was known.
In Dorchester, Mosby leaned back in her chair and sighed. After 18 months, the memory of her conflict with Batts and Rawlings-Blake was still frustrating. While they argued over how much information to release and whether it was accurate, the streets of Baltimore were breaking down. ‘There are protesters outside; they are burning stuff down,’ she said. ‘I had told them that was going to happen, because they were exacerbating distrust. So I called the mayor, and I was livid. I was like: ‘You know, this is ridiculous. You all have single-handedly caused what’s happening in this city right now.’ I just screamed on her. But she was like: ‘Oh, no, I’m getting phone calls from the attorney general and the president’s office. They want to know — where’s the state’s attorney?’ I said: ‘That’s because you and your commissioner have set false expectations. You did this, not me. Not me.’ And I was like, ‘You know what else?’ I can’t remember what I said, but I hung up on her. And that was it.
Once again, Mosby is engaging in projection. The riots occurred because the mayor and police commissioner were “exacerbating distrust?” That would be the reason for the theft of consumer electronics and prescription drugs as well? Mosby had no hand in any of that, of course. She was the noble public servant trying to calm the troubled waters. She was, and is, blameless.
To my mind, the more troubling aspect of the trials is the litany of small, strange choices that aggregated until you had to wonder what prosecutors were thinking. For example, in Maryland, a criminal defendant has the right to decide whether he wants to face a judge or a jury. When a police officer is charged with a criminal offense, she enjoys the same basic rights. Pretty much anyone in Baltimore can tell you that a cop will get more sympathy from the average judge than the average jury, so it was no surprise when most of the officers asked for a bench trial. Except that it did appear to bother Mosby, who has insisted that the officers shouldn’t be allowed to make that choice. Mosby told me she believes that the right to a trial by jury is so basic to the American system that the defense and the prosecution should have to agree before it can be waived. That’s how the system works in federal court and some other states. If the Freddie Gray case had taken place in Atlanta, for example, a prosecutor could have forced the police officers to face a jury. As it happened, the trials took place in Baltimore.
Notice that Hylton misses the point, perhaps purposely. Maryland law gives defendants, including police officers, the choice of a bench or jury trial. The American criminal justice system is established to protect the rights of the individual against the unlimited resources and power of the state. Yet Mosby, the woman elected to uphold the law, argues against it because it forced her to prove the officers guilty beyond a reasonable doubt in an unbiased court. She couldn’t obscure her lack of evidence with inflamed emotion. Hylton also glosses over the fact that these cases were an extraordinarily good argument for a change of venue.
The other glaring example like this involved Gray’s pocketknife. Police claimed that the knife was illegal and used it to justify his arrest. Mosby and her staff have argued that the arrest was illegal, because police didn’t know that Gray was carrying a knife when they took him into custody. The problem with this position is that it fails to account for the murky space between a stop and an arrest. Cops have a great deal of latitude — one might say too much — to detain a suspect, and if they find an illegal weapon during a search, they can escalate to an arrest. These are pretty rudimentary things, which is why it’s bewildering that Mosby’s team chose to make them an issue in the case. Taylor, the lead investigator for the police, said of Mosby, ‘Maybe if she spent some time in the courtroom, she would know how this whole process worked.
Hylton avoids the Terry stop controversy, while barely mentioning it. There is no “murky space.” If officers have reasonable suspicion, they can briefly detain people to determine if they are breaking the law. With some restrictions, they can use any evidence of crimes they find during such stops. There is nothing murky about this. It is well settled law applied for decades. He is right, however, that Mosby was clueless about this, and much else. It’s also a certainty that her obtuseness was fueled by her determination to fulfill the proper social justice narrative rather than to uphold the law.
On the other hand, the level of intransigence that Mosby says she encountered from the Police Department is troubling. Especially if the officers planted an informant in the van to suggest that Gray injured himself, as Mosby suspected, and if investigators failed to execute a search warrant for the text messages. Allen, by the way, has retracted his original statements about Gray banging his head, and he denies being an informant. Mosby so distrusted the process, from top to bottom, that she did not inform the mayor of her decision to press charges until a few minutes before she announced it to the world. ‘I called her five minutes before, and I said, ‘I’m giving you a heads-up,’ she said.
The police “planted an informant in the van to suggest that Gray injured himself?” This is absolutely incredible. It would have required the officers involved, having no idea Gray would be seriously injured after the final stop, to produce Allen–whose whereabouts they surely didn’t know–within minutes, knowing him to be an informant, and to coordinate with Allen to falsely testify about Gray, again, having no idea Gray would suffer fatal injuries, or any injuries. To even suggest such a thing is absurd and reflects Mosby’s paranoid, disordered mind.
As to the supposed non-executed warrant, I have often served search warrants that didn’t pan out. In such cases, one sends the return—a document explaining what was or was not found–to the court, and that’s the end of it, other than documenting it in a report. Hylton’s account seems to mention a return, so it appears the officers did handle the warrant properly. Whether Mosby distrusted others or not, it was gross negligence, which surely contributed to the turmoil, for her to withhold her decision to charge the officers until mere minutes before the announcement.
What has emerged, then, is a pair of irreconcilable narratives about the death of Gray — but a trial, by nature, tends to emphasize one. The prosecution crafts a detailed story about what may have happened, leaving the defense to respond in pieces along the way. But there is another complex narrative for the defense, another timeline to explain Gray’s death, which is endorsed by just about every cop in the city and many of the prosecutors who have left Mosby’s office. I find that narrative underwhelming for several reasons, one of which is that I believe the medical examiner’s conclusion that Gray’s injuries suggest homicide. It’s nevertheless useful to consider the alternate story, so I’ll try to present it as nearly as I can.
It’s not surprising that a journalist would think in terms of narratives. That’s their business. However, no prosecutor can afford to deal in narratives. They have to deal in facts, which is where Mosby failed. The defense “narrative” won because it was backed by fact and evidence. The prosecution narrative failed because it was just that, a story about the way things should have been in a utopian social justice universe, unsupported by fact or evidence. Take the link to read Hylton’s narrative version.
Mosby likes to say that even without convictions, the trials have done more good than she could have hoped. The Police Department has installed cameras inside vans and adopted new requirements for the use of force and the provision of medical care. Two weeks after Mosby dropped the remaining charges, the Justice Department released a blistering review of the discriminatory practices of the Baltimore police; under federal scrutiny, the department is likely to implement a raft of reforms. But the most important impact of the trials may be in the way future investigations of the police unfold. This month, Mosby plans to introduce, with a consortium of other prosecutors from around the country, a set of five recommendations that would give prosecutors more independence and authority to investigate the police.
Reforms, to be sure, reforms that have already turned Baltimore into a community terrorized by criminals, where felons can be certain of easy pickings and little interference from the police. The idea that Mosby did good is bizarre. The toll in property damage, plummeting property values, badly damaged public safety,injuries and deaths, the utter destruction of the relationship between the police and prosecutors, and willfully giving the DOJ power over the city for generations is only just becoming obvious. There was no question the DOJ would find the BPD full of racism and discrimination. Whenever the racist Obama DOJ investigates a police agency, they always find discrimination and get to take over daily operations. That’s the point.
The six innocent officers would also argue the issue. Their lives and careers have been destroyed in the name of social justice. The criminal justice system holds sacred the idea it’s better 100 guilty men go free than one innocent man be imprisoned. That, of course, is not the way of social justice, which holds it’s acceptable 100 innocent men go to jail as long as it vindicates social justice ideals. This, clearly, is Mosby’s ethic.
The jeopardy of the officers is far from over. Their own agency is now sniffing the political winds to determine whether they can be punished, and how much. And of course, the Federal DOJ may still attack them. The DOJ won’t touch Hillary Clinton, but it will have no such reticence to prosecute the officers. In any case, their police careers are almost certainly over, and for doing nothing more than lawfully doing their jobs.
Still, in the case of Freddie Gray, the uncomfortable truth remains that if, like Mosby, you believe that a man was killed by police negligence, you must also accept that the officers accused of killing him went free. The question that lingers around Mosby, then, is really one of shading: whether the failure to convict was a result of her own mistakes or of the larger forces arrayed against her. Whether, that is, the fatal error was personal or systemic, whether it was pride or destiny that stopped her, whether the tragedy is Shakespearean or Greek.
How literary. In the real world, the criminal justice system worked exactly as it was intended to work. The prosecution had every advantage, all the time and resources it needed, to present its case. Prosecutors even got away with considerable unethical behavior, doing its best to hide exculpatory evidence from the defense. The prosecution failed because there was no evidence to prove the charges, and there was no evidence justifying the arrest of the officers. The fatal error was personal, the tragedy, Greek. Mosby’s Hubris engendered Nemesis, but the tragedy is, overwhelmingly, that of an entire city, a nation, and the officers wrongly accused and their families. Hylton tries desperately to convince readers otherwise:
We were talking about the criticism of his influence, and she said, ‘I had to establish my own sort of leadership, because I was being accused of him running my office.’
Nick turned to Marilyn. ‘Our strength has always been working together,’ he said.
‘I have to take into consideration the political ramifications,’ she said. ‘You may be asking what took place at work, but because I’m so much on guard, I don’t want to talk about that. But then that creates this. … ‘
‘Chasm,’ Nick said.
‘A chasm between us,’ she said.
‘There’s always going to be some level of disconnect there’” Nick said. ‘I don’t see it ever returning back to the level where it was.’
Marilyn looked surprised. ‘Like you mean the damage has been done?’ she asked.
‘It’s just like, that’s what the relationship is now,’ he said.
Consider what the Mosby’s have just revealed: the possibility that it was Nick and Marilyn Mosby collaborating to increase their political fortunes by prosecuting men—and one woman—they knew to be innocent. They also presumably collaborated from that point, on each bad decision and unethical action. Certainly, their social justice beliefs were involved as well, but this is far more revealing than Hylton obviously realizes. He still thinks Mosby the tragic heroine.
There was a long silence, and I realized that when you looked at the fallout from Gray’s death — the devastation to his family, the eruption of the city, the polarizing trials and dismissed charges, the rift between cops and prosecutors and the surging violence — the scars were everywhere in this city, but it sometimes seemed as if the only public figure who had really suffered for his death, who put her career and private life on the line, whether right or wrong, the elected official who paid the highest price was the one who set out to make sure someone did.
In this, Hylton is also revealing more than he realizes. Mosby, and apparently her husband Nick, did set out to make sure someone paid for Gray’s death. Unfortunately the social justice narrative demanded that be the police, and the facts and evidence didn’t matter. Fortunately, the rule of law, thanks in large part to Judge Barry Williams, did prevail. That, however, will never stop people like Hylton from painting Mosby as a social justice martyr, just like Freddie Gray, a doped up, drug dealing, petty criminal who, trying to scam the people of Baltimore, caused his own death.