The high-wire act of Marilyn Mosby.

Two recent stories in The Baltimore Sun drew me back to the issue of the dubious performance of the Office of the State’s Attorney for Baltimore City.  The first story included tangible evidence of the damage done by State’s Attorney Marilyn Mosby when she fired a large number of experienced prosecutors upon taking office.  The second story shows how much of a high-wire act it was for Ms. Mosby to decide to file charges against the six police officers allegedly involved in the death of Freddie Gray:  She made her decision without reviewing the results of an exhaustive investigation carried out by a thirty-member task force put together by the Baltimore Police Department (BPD).

A week after The Baltimore Sun published my op-ed article on the problems plaguing both the BPD and the State’s Attorney’s Office [“Gaffes put court cases in jeopardy,” The Sun, October 2, 2015] the newspaper reported that gun charges had been dropped by the State’s Attorney in January of this year against Dontae Small, who allegedly was driving a stolen vehicle when it crashed at Ft. Meade on October 7th.  The vehicle had been stolen at gunpoint from a man in Fells Point several days earlier, and Small now has been charged in the robbery.  [The Sun, October 9, 2015.]

Small has a lengthy criminal record, and The Sun reported that he has been in and out of prison since 1993.  The drug and firearms case against him was dropped in January because the Office of the State’s Attorney was unprepared to go to trial against him after a request for postponement was denied by Judge Barry Williams.  The case had been scheduled to be prosecuted by former Assistant State’s Attorney Grant McDaniel who had been fired two weeks before the scheduled trial date by incoming State’s Attorney Marilyn Mosby.

From the statements attributed to him by The Sun Judge Williams was taken aback that a veteran prosecutor with about 200 active cases was abruptly terminated without regard to what would happen to his caseload, and apparently without regard to the speedy trial rights of defendants.  Judge Williams properly denied the postponement request (as a previous judge had done) and the State’s Attorney was forced to drop the charges against Small.  Although no one knows what the outcome would have been had the case against Small gone to trial in January it is fair to say that it may not have been necessary to return Small to the streets if Ms. Mosby had not fired McDaniel without a plan how to manage his caseload.

In August former Assistant State’s Attorney Roya Hanna warned that reckless personnel actions taken by Ms. Mosby immediately upon assuming office had damaged the ability of the State’s Attorney’s Office to prosecute crime.  [“Marilyn Mosby has a role in City’s violence increase,” The Sun, August 12, 2015.]  In her commentary Ms. Hanna accused Ms. Mosby of jeopardizing prosecutions by firing six experienced prosecutors immediately upon taking office and leaving felony prosecutor positions vacant while she added staff to her media and “community outreach” teams.  According to Ms. Hanna the brain drain continued with the departure of ten more trial attorneys.

Allegations such as those made by Ms. Hanna often are dismissed as those of disgruntled former employees.  Disgruntled or not, Ms. Hanna made a point worth making:  Prosecution of serious crime requires experience gained under competent supervision, and the loss of a large number of competent, experienced prosecutors within a short period of time is a cause for concern.  Moreover, we now have evidence that the turmoil described by Ms. Hanna had a very real impact on at least one case, forcing a prosecutor who was unprepared to go to trial to drop charges against a defendant with a lengthy prison record who went right back to the streets and allegedly committed another crime.

This week The Baltimore Sun published a detailed and absorbing account of the nine days in April that its reporters spent “imbedded” with the members of the BPD investigating the death of Freddie Gray.  [“Grueling task, little return,” The Sun, October 11, 2015.]  The most striking aspect of the story was the fact that the extensive investigation conducted by the police department had little or nothing to do with the charges brought against the six police officers; the charges resulted from the “parallel” investigation done by the State’s Attorney with the assistance of the Baltimore City Sheriff’s Office.  According to the article, although prosecutors were briefed every few days on the status of the investigation being done by the police department they asked few questions about the investigation, which police commanders found highly unusual and troubling.  In hindsight, the reason for the prosecutors’ lack of interest in the investigation was that the department’s investigation had no bearing on what the State’s Attorney intended to do.

To appreciate how far out on a limb Ms. Mosby has gone in the Freddie Gray cases you have to understand that there is no comparison between the resources and investigatory skills found within the BPD and those in the State’s Attorney’s and Sheriff’s Offices.  If the BPD is the varsity, then the State’s Attorney and the Sheriff are not even the junior varsity.  They are the middle school team.

That is not to say that the cases cannot be successfully prosecuted as they stand, depending on the evidence.  My guess is that the cases themselves will be surprisingly simple, in the sense that they will rise or fall on the testimony from a handful of witnesses, the officers themselves, and one or two experts on police procedures.  If any of the officers are acquitted on all counts, however, Ms. Mosby has no defense against the criticism that she acted without utilizing the best investigatory tools available to her and that she charged the officers without considering all of the available facts.

Standing alone, Ms. Mosby’s decision to charge Officer Caesar Goodson, Jr. with second-degree murder raises its own questions about her judgment, as discussed in a previous post.  If Officer Goodson is not found guilty of that charge Ms. Mosby will have to live with the fact that she charged a man with murder without bothering to read the police investigation on the incident.  What justification can there be for that?

One matter that the extensive investigation done by the police department does bear upon is the obligation of the prosecutors to turn over to the defense attorneys for the charged officers any investigatory material that may be relevant to the defense of the cases.  The “discovery” obligation includes information gathered not only by the State’s Attorney and Sheriff, but also by the BPD.  The cooperation between the BPD and the State’s Attorney Office in satisfying this requirement has been problematic for many years, and the lack of attention paid by the State’s Attorney to the BPD investigation into the death of Freddie Gray makes a difficult situation even harder.  It is clear from the motions filed to date in the criminal cases that prosecutors are struggling to identify the investigatory material that must be turned over to the defense attorneys.  The State’s Attorney can ill afford a mistrial or overturned conviction in one of the Freddie Gray cases caused by another discovery violation of the type described in my op-ed article earlier this month.

If the prosecutions of the six officers charged in the death of Freddie Gray are successful the series of rash actions taken by Ms. Mosby since her term began in January will be forgotten.  If the prosecutions are not a success, however, there will be no net to catch Ms. Mosby as she tries to explain why she gutted the office of experienced prosecutors and why she chose not even to consider the extensive investigation conducted by the most experienced homicide detectives in the BPD before deciding to file charges against the six police officers allegedly involved in the death of Freddie Gray, including charging one of those police officers with murder.

October 12, 2015

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