Last May, cheers went up across Baltimore after State’s Attorney Marilyn J. Mosby, the city’s top prosecutor, announced charges against six officers involved in the arrest of Freddie Gray, whose death from injuries suffered in police custody sparked protests and riots that dominated national media. Impunity is the norm for abusive police. It seemed that a chance for justice had arrived.
"To the people of Baltimore and the demonstrators across America: I heard your call for ‘No justice, no peace,’” Mosby declared after days of unrest. “Your peace is sincerely needed as I work to deliver justice on behalf of this young man.”
The national spotlight on the trials, however, has faded as prosecutors have gone on to so far deliver a zero-for-four debacle, rife with accusations of misleading a grand jury and failures to turn over information to defense lawyers that elicited rebukes from Judge Barry G. Williams — a judge whose old job was prosecuting bad cops. Last Monday, Mosby’s office failed to win its third conviction against an officer, in addition to a fourth case declared a mistrial. It was readymade fodder for conservative Milwaukee County Sheriff David Clarke, who used his primetime slot at the Republican National Convention to condemn “activist” Mosby for “malicious prosecution.”
Defense lawyers, however, say that the overcharging and discovery violations now drawing criticism in the Gray trials are perpetrated as a matter of course against poor black defendants. Beyond predictable Republican and police union attacks on Mosby, the trials point to the limited ability of criminal prosecution to fix the criminal justice system — and also to the ways in which prosecutors, winning sentences that imprison Baltimoreans en masse, are in reality a big part of the problem.
It was apparently Mosby, after all, who had requested that police flood the West Baltimore intersection where Gray was arrested in response to local complaints about drug dealing. If the police officers who arrested Gray were following orders, carrying out drug-war business as usual, then Mosby, and the entire criminal justice system, have a lot to answer for.
Mosby, hailed as Black Lives Matter’s first courtroom hero, has received staunch support from many in the city, including the local chapter of the NAACP and Gray’s family. But defense lawyers complain that an office that has won national attention for prosecuting these officers has done little to nothing to alter a cash bail system that keeps huge numbers of poor defendants incarcerated pre-trial, and charge that they fight defense efforts to gain access to police disciplinary records.
Todd Oppenheim, a local public defender and outspoken criminal justice critic, contends that the officer trials have “completely occupied” a prosecutor’s office that otherwise has little to show in the way “of new approaches to the system.”
A unit dedicated to righting wrongful convictions, the crown jewel of any reform prosecutor’s office, has helped exonerate just one person.
Mosby’s office could not comment on the Gray prosecutions because the cases are subject to a gag order. But they said they are making headway toward reform: the unit dedicated to righting wrongful convictions has been revamped, they have received a grant to create a program to decrease the number of poor people held pre-trial, and they are diverting first-time low-level drug dealers from prison and into jobs.
“As prosecutors we have an obligation to participate in reforming the criminal justice system and lead the charge to create a system that will benefit the citizens we serve,” said Mosby, in a statement forwarded to Salon by her office.
Tammy Brown, the State’s Attorney’s chief of external affairs, points to the diversion program AIM to B’MORE, which she calls an effort “to target individuals who are selling drugs to get them out, and get them a job in lieu of selling drugs.”
It’s a laudable idea but, upon closer inspection, a modest one. Last year, the program had thirty participants, she says, and has doubled in size this year. In Baltimore’s vast system that’s a small drop in a very large bucket: black men, charged with crimes large and small, continue to cycle through the city’s system—with little to nothing to show in the way of checking the street violence that pervades poor neighborhoods like Gray’s.
The city’s bail system, according to Maryland Public Defender Paul B. DeWolfe, is a major culprit. Defendants are incarcerated simply because they are too poor to pay, he says, resulting in a bloated jail population 85 to 95-percent filled with pre-trial detainees yet to be found guilty of anything. Judges set bail but prosecutors can make recommendations. Mosby’s office, he says, has not yet taken meaningful action.
“If you’re poor, you sit in cages. If you have money, you get released,” says DeWolfe. “That’s unfair.”
Oppenheim points to Allen Bullock, whose case received widespread attention when he was brought up on major charges after smashing a traffic cone through a police car windshield during the riots. A judge agreed to a plea deal that included six months in jail. Mosby’s prosecutors had sought more than nine years in prison, and he was held on $500,000 bail, notably higher than that of officers charged in connection with Gray’s death.
"They definitely wanted to make an example of him," says Bullock's attorney, J. Wyndal Gordon. Gordon is a supporter of the Gray prosecutions but, in a follow up email, believes that the prosecution of Bullock was intended to "neutralize the effects of some of the reactions" to them and stifle street protest.
Brown contends that a risk-assessment tool under development in Mosby’s office will decrease the number of defendants held pre-trial, and says that their office did make an effort to get low-level offenders out of jail during the riots. DeWolfe says that he’d welcome any improvement but that none has yet materialized, and that he’s “not aware of any request that prosecutors made during those riots, or uprisings, to recommend that people get released.”
Rather, he says that defenders had to file more than 90 habeas corpus petitions to spring people held without a hearing. Brown says that DeWolfe might be unaware of their efforts because prosecutors made their recommendations to release prisoners to the Court Commissioner, before defenders would have been involved.
Untold others remain in prison for crimes that they never committed, and Mosby so far boasts a meagre track record on righting these past injustices.
On May 11, Malcolm Jabbar Bryant, convicted in 1999 for the murder of a teenage girl he apparently did not commit, walked free, making him the sole person that the State’s Attorney’s Conviction Integrity Unit has helped to exonerate under Mosby, according to unit chief Lauren Lipscomb.
What’s more, Bryant’s case was remarkably straightforward. DNA from the victim’s nail clippings and t-shirt pointed to someone else. In many cases, however, proving that someone is definitively innocent is rather difficult: bad convictions often don’t include much evidence at all, let alone something exculpatory like DNA. In other words, had the teenage girl’s true killer not left DNA evidence, Bryant, convicted on the basis of a shaky eyewitness identification, would likely still be in prison.
Asked whether the unit would support exonerations in cases where a defendant should simply have never been found guilty in the first place, Lipscomb demurred.
“We do not review cases just because they’re weak,” she says. “We’re talking about cases where the facts have been presented to a jury.”
Bryant, of course, was convicted by a jury as well.
Lipscomb says that her unit has three attorneys, an intern and three support staff, and that it’s work is just getting off the ground. But it also has other major responsibilities, including probation enforcement. They currently have just one case under investigation, eight under initial review, and eight that have been reinvestigated and closed.
“They are a new concept,” says Lipscomb, referring to conviction integrity units, “and we are all sort of developing what the best model is in terms of functioning within prosecutor offices.”
Shawn Armbrust, executive director of the Mid-Atlantic Innocence Project, says that the unit has recently shown a greater interest in collaboration. It is still too small, however, to right what are likely a large number of wrongful convictions in the city.
“I think they're trying to do the right thing, but it's a small unit. It doesn't have the resources to accomplish as much as larger, better-funded units,” emails Armbrust.
Asked whether the unit is developing best practices to help prevent future wrongful convictions, Lipscomb said they are but could not yet point to any specific measures. Remarkably, Mosby has said that the Bryant case did not shake her faith in eyewitness testimony, which can be unreliable and appears to contribute to the majority of wrongful convictions nationwide.
One basic step would be to ensure that police with a track record of lying are not called to the stand. Defense attorneys, however, say that’s not happening: prosecutors, they say, routinely fail to abide by their obligations under what is known as the Brady Rule, which requires that prosecutors turn over to the defense any potentially exculpatory evidence—including evidence of officer wrongdoing that might undermine the credibility of their testimony.
“We fight that tooth and nail, and they resist every attempt at turning over evidence of police dishonesty” and “police misconduct,” says DeWolfe.
Deborah Levi, a Baltimore public defender, says that prosecutors don’t have a regular system to determine whether such officer disciplinary records exist. In order for defense attorneys to even make the case to a judge that they should get files on dirty cops, Levi says that they must look out for rumors, and scour newspaper articles and federal court filings. When defense lawyers do move to request access to records, she says, and then to bring them into court, prosecutors inevitably mount an opposition.
“They argue against disclosure without having scrutinized the file,” says Levi. “That has been my experience in litigation.”
According to an email from a member of the State’s Attorney’s office obtained by Salon, prosecutors do not even have direct access to the police disciplinary record system.
Other discovery violations are routine as well, says Levi: prosecutors, she says, have repeatedly failed to disclose cases where police used a tool called Stingray, which simulates a cell tower to track people’s locations, without a warrant. Brown puts the blame for that on police, who she says that prosecutors rely on to alert them to the device’s use.
"When our prosecutors are made aware that a detective used a cell-site stimulator, it is disclosed,” emails Brown. "We are currently working with the Police Department to improve upon the process to better obtain this information in order to comply with the law.”
In the Gray cases, Mosby’s office finds itself in the unusual position of prosecuting alleged police abuse instead of defending it. The result, says Oppenheim, is hypocritical. Legal experts were shocked, for example, when prosecutors argued that Officer Edward Nero’s arrest of Gray not only lacked probable cause but was itself a criminal act on the officer’s part. According to Oppenheim, the same State’s Attorney’s office on a typical day not only defends bad arrests and searches but fights to ensure that evidence secured from them is admissible in court. Prosecutors, he says, are in the Gray trials making arguments about police misconduct that directly contradict how they approach everyday matters in the courtroom, when prosecutors and police work side by side.
According to critics, Mosby’s office is losing the Gray prosecutions for a simple reason: it does not have anywhere near sufficient evidence to prove that officers committed the alleged crimes beyond a reasonable doubt.
“These were always very difficult cases to prove, and the fact of the matter is there’s just not a whole lot of evidence from which to prove them,” says David Jaros, a professor at the University of Baltimore School of Law.
The real lessons from the Gray prosecutions, however, are already being lost. National and local Republicans have piled on, using the trials to delegitimize Black Lives Matter. So has the local Fraternal Order of Police, whose concern for defendants’ rights is limited to cases where cops are on trial.
“Given what we’ve learned about how the criminal justice system is functioning,” says Jaros, “the question is what are policymakers going to do about it? And to the extent that this case reveals the limitations of using the criminal justice system, and a prosecution, to resolve these issues, we have to ask, what other mechanisms are we going to identify?”
The Baltimore FOP, for one, doesn’t seem interested in any mechanisms at all: they have filed a lawsuit aimed at blocking civilian review board access to internal affairs records.
Across the country, the question of prosecuting cops for misconduct has stood in as a high-stakes symbol for larger problems plaguing the criminal justice system, from aggressive policing to mass incarceration. These problems are rooted in state and national policies but have their greatest impact in local criminal justice systems led by law enforcement officials like Mosby. Whatever one’s feeling about the wisdom of the Gray prosecutions, his death and what followed are an unsettling reminder that the system remains broken across the board and that solutions currently on the table aren’t up to the job.
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