Lady Justice probably grimaced a bit under her blindfold at the secret manner in which the Baltimore Police Department (BPD) began its trial of a wide area aerial surveillance system.  The grimace may turn to a smile when she realizes that the system may be as much use if not more in exonerating the innocent as it is in capturing the guilty.

A case in point was the trial of Officer Caesar Goodson, one of the officers charged in connection with the death of Freddie Gray.  Goodson, the driver of the van in which Gray received his fatal injury, was charged with second degree murder among other charges.  During his trial prosecutors introduced into evidence a brief video pieced together from ground level surveillance cameras that allegedly showed Goodson giving the unbuckled Gray a “rough ride.”

The video was inconclusive at best.  There is a possibility that continuous video taken from high above the city could have provided much more definitive evidence of what occurred, even to the extent of allowing analysts to calculate the approximate speed of the van.  Think of how such evidence could have changed the course of justice in that case, one way or the other.  On one hand had there been unequivocal evidence of a rough ride Goodson probably would be in prison today.  On the other there is no doubt in my mind that Goodson would not have been charged with second degree murder had there been video clearly showing him driving the van in a prudent manner – if he was charged at all.

Unlike targeted surveillance programs, including voice and data interceptions, the scope of the information gathered is not limited at its source by law enforcement and therein lies its advantage:  It collects possible evidence continuously and indiscriminately, and the evidence can turn out to be inculpatory or exculpatory.  It can refute an alibi or confirm one.  It offers the possibility, in equal measure, of verifying or discrediting the accounts of eyewitnesses, including police officers.  It is an unblinking eye and, unlike body cameras, it cannot be turned off and on by the officers on the street.

Now that the aerial surveillance system is in place the due diligence required of police when investigating crimes requires detectives to use it, if possible, to check the veracity of the accounts of arresting officers, eyewitnesses, suspects, etc. as to their locations and movements.   Of course, trusting police officers to do their jobs properly is not enough to protect the rights of persons once they have been charged with crimes.  Then, aerial surveillance video must be made available to defendants and their attorneys to allow them to independently verify the accounts, and to discover any exculpatory evidence.

That is where Baltimore Police Commissioner Kevin Davis apparently had a blind spot.  He failed to recognize that any tool that he is provided for solving crimes, whether it be DNA testing, fingerprint comparison, or aerial surveillance is every bit as important for protecting the innocent as it is for punishing the guilty.  Our system of justice is premised on the doctrine set forth by William Blackstone in the 18^th century that “the law holds that it is better that ten guilty persons escape, than that one innocent suffer.”  Davis had no right to keep the aerial surveillance secret from defendants and their attorneys once it was placed in operation and to deprive them of a possible source of exculpatory evidence.

Nevertheless, I hope that his mistake in judgment does not prejudice an objective review of the aerial surveillance system.  It seems to me that, especially in Baltimore at this point in its history, we should be hesitant to reject any additional means of gathering evidence that could lead to the capture of more criminals while at the same time protecting the innocent from being wrongfully charged with crimes.

I said the fact that the system gathers information continuously and indiscriminately is an advantage from an evidentiary standpoint, and it is.  It is also the source of the main objection to the system.

Each of us has our own view on how much of an intrusion the aerial surveillance system is on or our privacy and on how much of that privacy we are willing to give up to reduce crime.  At this point we do not know whether the system is cost effective and whether the BPD will want to keep it when the grant runs out; other cities have been less than impressed with its utility when weighed against its cost.

It seems to me the city needs more information before making a final decision on whether any gains in solving crime outweigh the objections to the loss of privacy.  I hope that people keep an open mind if it appears that the wide area aerial surveillance system can make Baltimore safer, and maybe a little fairer.

September 1, 2016