If someone decided to write a book entitled Meaningless Statistics an entire chapter could be devoted to the 92% conviction rate claimed by Baltimore City State’s Attorney Marilyn Mosby.  The number tells you nothing about the success or failure of her office.

The Wall Street Journal published an article reporting that felony convictions declined soon after Mosby took office in January 2015.  The newspaper found that about 53% of felony cases closed since Mosby took office ended in conviction, compared with 67% the previous four years.  Prosecutors dropped or set aside charges in 43% of felony cases under Mosby compared with 29% under her predecessor, Gregg Bernstein.

The difference between the 53% conviction rate reported by the WSJ and the 92% reported by Mosby is explained by a difference in the methodologies used.  Mosby used a methodology typically used by prosecutors (especially in speaking to the public) that considers only those cases that went to trial, not counting against the conviction rate those cases in which the charges were dropped prior to trial.  Using Mosby’s methodology Bernstein had a conviction rate of between 95 and 97%.

The WSJ used the methodology most commonly used by criminologists and the Department of Justice, which counts those cases in which charges were dropped before going to trial against the conviction rate.  That methodology tends to give a more comprehensive view of the criminal justice system and raises an important question for further analysis:  Why were so many cases dropped by the Baltimore City State’s Attorney’s Office?

For an answer to that question the WSJ article had only this:  “Some observers say Ms. Mosby’s management of the office is a contributing factor in the drop in convictions. Her office disputes that criticism, in part blaming the quality of cases brought by police.”

The answer is worthless, but it was not the fault of the WSJ reporters.  The State’s Attorney does not maintain a database that supports further analysis of the reasons behind the number of dropped cases.  She should, but she doesn’t.

There is a problem when the prosecution drops 43% of the cases in which felony charges were filed.  Are that many people getting arrested and charged who shouldn’t be getting arrested and charged?  Is the State’s Attorney dumping cases that it shouldn’t?  The ball definitely is being dropped somewhere, we just don’t know where.

Why not code and record the reasons why a case is dropped in a searchable database so that the public (and other elected officials) can figure out where the problem lies?  It would take an experienced prosecutor about 30 minutes to come up with a list of codes that represent the typical reasons cases are dropped:  Critical evidence was the product of an unconstitutional search or seizure, key witness recants his or her testimony, victim disappears, etc.  How hard would it be to enter those codes in a searchable database?  How can there be any doubt that the public has the right to know what is going wrong with felony cases in the City of Baltimore?   It is not as if felony crimes are isolated occurrences in Charm City.

Does Baltimore have a police department that doesn’t know how to put together felony cases or does it have a state’s attorney’s office that doesn’t know how to try them?  Until the State’s Attorney provides more useful and relevant information we’ll never know.

I make no accusations, but it is obvious that a conviction rate based only on cases that go to trial can be manipulated in order to put an elected prosecutor in the best possible light.  Are difficult but meritorious cases being dropped before trial because Mosby fears the political consequences of the conviction rate declining even further?  Until she decides to provide more useful and relevant information about the dropped cases we have only Mosby’s word to go by.  That is just not enough.

Allow me to digress at bit, and talk about myself.  I won’t be hurt if you stop reading; I’m used to it.

My primary major in college was philosophy, but my interest in social philosophy led me to pick up a second major in sociology.  That required me to take courses in statistics and statistical analysis, which I found useful over the years.  It also exposed me to the writings of German sociologist Max Weber, considered to be one of the founders of modern sociology and the first scholar to study how bureaucracies function in a scientific manner.

I bring this personal history up only because when I retired from the everyday practice of law I decided that I had a particular interest and some expertise in the subject of holding governmental agencies and employees accountable for their performance to the people that they serve.  To me, improving the accountability of governmental agencies is the first step on the long road toward restoring the trust of people in government at all levels.

Applying my academic background, such as it is, to my interest in government accountability I came up with what I call the Plymyer Rule:  “A bureaucracy will do everything in its power to resist being held accountable to the public that it serves.”  Based on my long experience in government I can tell you that this is more than just a theory.

If it seems vain to name a rule after oneself, consider this:  My blog has only four followers, and three of them are relatives.  How vain can you be when your blog has only one follower who is not a member of your family?

The first step in holding a governmental agency accountable is getting relevant and useful information about the performance of the agency, which is why I generally am an advocate for expanded access to records and proceedings.  Openness and transparency are the only ways that the public is going to have any idea what is going on and how well an agency is performing.

In Maryland the Public Information Act and the Open Meetings Act mean that bureaucrats sometimes have to be creative about thwarting the public’s ability to get the information necessary to assess the performance of an agency.  There are, however, a few simple principles that public officials follow in order to limit the damage to their reputation from unfavorable information.  The first principle is that you do not have to disclose information that you do not have; if you don’t collect and record the information there is nothing to disclose.

Mosby is following the Plymyer Rule, so she is not about to create a database that she would be required to disclose to the public and that could put her in a bad light or raise additional questions that she does not want to answer.  She’d rather continue to pat herself on the back, and blame the “quality” of the cases put together by the Baltimore Police Department without any facts to support her claim.

If she is protecting the police department from criticism, which would be out of character, then that is just as bad.  She is not going to produce the information unless the General Assembly compels her to do so by statute.  That is one of the many things that the General Assembly should do to help the citizens of Baltimore, but probably won’t.

Finally, a word about the statement Mosby gave to the WSJ in lieu of giving an interview to the reporters.  The statement read:  “It’s shameful to take pride in overwhelming conviction rates. We are here to do justice and make Baltimore safer, not gloat.”

Who was talking about gloating?  I don’t know how good Mosby is at making a case in a courtroom, but she is awful at making the case that she has what it takes to be an effective State’s Attorney.  Stop with the stilted, overblown and irrelevant pronouncements, Ms. Mosby, and start providing some relevant and useful information about what is going on in your office.  Your constituents deserve it.

November 23, 2016