I will start with the customary caveat that the seven officers of the Baltimore Police Department (BPD) indicted on federal racketeering charges this week are innocent until proven guilty.  If they committed half the crimes with which they are charged, however, it is a disappointing indication that little progress has been made in fixing the problem with front line supervision in the BPD since my op ed on that problem was published in the Baltimore Sun on August 18, 2015.

The accusations against the seven officers are especially troubling, even for the BPD.  The officers, who were members of the “elite” Gun Trace Task Force, allegedly operated in a manner no different from one of Baltimore’s many violent criminal gangs.  The United States Attorney for Maryland, Rod Rosenstein, described them as armed robbers in police uniforms.

The officers indicted included a supervisor, Sgt. Wayne Jenkins.  The fact that a police sergeant was allegedly involved in the wrongdoing is hardly surprising.  The number of incidents involving sergeants or lieutenants in the BPD over the past four or five years forms a pattern, and the inadequacy of the supervision of the rank-and-file is the crippling weakness of the department.  Nothing in the BPD will improve until the front line supervision improves.

Brazen crimes committed by police officers like those described in the indictments do not happen unless the perpetrators believe that they will not get caught.  In the BPD part of that equation is the deficiency in front line supervision:  Officers are emboldened by the belief that their sergeants are too inattentive or dim-witted to figure out what the officers are doing or, if the sergeants do figure out what they are doing, that the sergeants will turn the other way.  It goes without saying that there is even less deterrent if a sergeant is an active participant in the wrongdoing.

There is a rather remarkable and telling finding that appears on page 135 of the report on the BPD by the Department of Justice (DOJ).  I’ve mentioned it before, and it is worth repeating.  Keep in mind that the DOJ uncovered a widespread pattern and practice of unconstitutional stops and arrests.

“A number of supervisors informed us that they view their role as ‘documenting’ activity rather than assessing whether the activity conformed to policy, or that they believe internal affairs—not direct supervision—is the appropriate vehicle for assessing whether an enforcement action meets policy or constitutional requirements. Indeed, our review did not identify a single stop, search, or arrest that a front line supervisor found to violate constitutional standards—even though numerous incident reports for these activities describe facially unlawful police action.”  (Emphasis added.)

In other words, many supervisors in the BPD don’t bother supervising.  Needless to say the information that led to the investigation of the seven indicted officers did not come from their supervisors or even from the BPD internal affairs section; it came from information learned by DEA agents during an investigation of a drug ring in the city.  Here is what that means, unfortunately:  Drug dealers are a better source of information about what is really going on in the BPD than the department’s supervisors or internal affairs investigators.

In addition to the violent crimes described in the indictments there are allegations of systematic overtime fraud involving tens of thousands of dollars; the numbers are so egregious that someone should have taken notice.  The most important safeguards against such abuse are the integrity and diligence of the immediate supervisors who approve the overtime. Therefore, don’t be surprised if the audit ordered by the mayor uncovers a much more widespread problem with overtime abuse.

A year after my first op ed on the subject I returned to subject of improving the quality of the front line supervision in the BPD with an op ed published by The Sun on August 17, 2016.  By then it was clear to me that it was necessary for the BPD to pick up the pace in its efforts to get rid of the “bad apples” among the supervisory ranks.  I recommended that Section 16-7 of the Code of Public Laws of Baltimore City be amended to take sergeants and lieutenants outside of the extraordinary protections of the Law Enforcement Officers’ Bill of Rights (LEOBR) so that the Police Commissioner could act more quickly to replace incompetent supervisors with competent ones.

That idea, along with the idea of getting sergeants and lieutenants out of the same union as the rank-and-file officers that they supervise, went nowhere. The Commissioner’s proposal for better training for new supervisors and re-training current ones, endorsed in the consent decress, is a great idea but is not going to change the culture fast enough.  The Commissioner cannot rely on attrition alone for the opportunity to replace bad supervisors with good ones.

It is likely that the pay differential between sergeants and lieutenants and the officers that they supervise must be increased in order to attract the best and the brightest in the rank-and-file to apply for promotions.  If the force has to be shrunk a bit to pay for that, so be it.  Comparing the needs of cities is complicated, but Baltimore is the 26^th largest city in the country by population and has the 8^th largest police department.  I don’t think I am going out on a limb by saying that the city might be better served by a slightly smaller but higher quality department.

I see in this situation what I see with so many problems in the city regarding public safety and the criminal justice system:  An absolute lack of urgency.  I am not talking about hysteria or doing things in a heated rush, but there has to be some sense that effective solutions need to be instituted as soon as possible.

The city has an appalling rate of murder and other violent crime, a State’s Attorney’s Office of questionable functionality, and a deeply troubled police department.  The problems with the police and prosecutors are so extensive that another issue that merits scrutiny, inconsistent and ineffective sentences imposed by judges, gets crowded out of the spotlight.  It does not take Nostradamus to predict that things could get even worse unless changes are made fairly quickly.

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As a follow-up to my post two days ago I can report that on the same day of the post Del. Curt Anderson announced that he was likely to withdraw his bill transferring operational control of the BPD from the state to the city.  He gave as a reason an Attorney General opinion that expressed concern that changing the governance at this point could jeopardize the pending consent decree with the DOJ and that warned that if a change was made the BPD would lose the sovereign immunity defense that protects it from tort claims based on violations of the state constitution. State constitutional torts have become a significant source of potential liability for Maryland local governments over the past 20 years.

The issue of interference with the consent decree that the city negotiated with the DOJ might not have been immediately apparent, but the impact on the sovereign immunity defense was something that every member of the city council knew or should have known when the council passed a resolution supporting Del. Anderson’s bill, HB 1504.  The lack of awareness shows just how ill-considered this bill was.  I will avoid speculating on how many members of the city council knew about the BPD’s sovereign immunity from suit, or bothered to ask.  Trust me; there is not a single lawyer in the city solicitor’s office unaware of the issue.

Councilman Brandon Scott, chair of the council’s Public Safety Committee, was the leading proponent of HB 1504.  He expressed his disappointment over the bill’s fate with a statement that included the following passage:

“Allowing the functions of the police department to continue as they are today represents a clear example of a broken governance structure. The unchecked and unbalanced power within the oversight structure of the Baltimore Police Department is not representative of true American democracy and is dangerous to its core values.”

Councilman Scott not only has a gift for hyperbole, he has designs on higher office.  After the indictment of the seven BPD officers was announced Councilman Scott raced off a letter to the Police Commissioner demanding a review of police overtime, a letter that Councilman Scott also gave to the media.  His haste was evident from the lack of proofreading, with the first sentence of his letter stating that the financial misconduct of BPD officers was “frequently” coming under scrutiny “far too often.”  I suppose a little redundancy never hurt anything.

Councilman Scott was in a hurry to upstage the mayor, who was in the process of making her own announcement ordering an audit of police overtime.  I bring this up only as it bears on the main theme of Friday’s post, which was the leadership vacuum in the city.  Mayor Pugh has enough challenges in the leadership department without contending with things like Councilman Scott’s jockeying for political advantage or the tendency of Council President Jack Young to grandstand and run his own game.  These three powerful city officials have to pull together if the city has any hope of fixing what ails it.

Mayor Pugh seems like a decent person truly committed to the welfare of the city.  She does not have a massive ego and prides herself on her ability to work on a collegial basis and on her willingness to compromise when appropriate.  She certainly is not going to overwhelm anyone with her oratory or her charisma, but that is okay – decisive leadership comes in many forms and actions speak louder than words, etc.  I believe, however, that she has to learn to assert herself more and demonstrate that she is unafraid of confrontation when it becomes necessary.  She will get walked all over if she can’t do that.

I am pulling for Mayor Pugh to succeed – we all should be doing so, because the success of the city depends on it.  If that means calling out a council person or two for getting in the way of the success of the mayor, so be it.  In my opinion the mayor still has a lot to prove but she should be given a chance to prove it.

March 5, 2017

The things going on at the moment regarding control of the Baltimore Police Department (BPD) are beyond comprehension.  They are a reflection of a complete lack of leadership from the mayor and a complete lack of spine from members of the city council.  There is one thing not absent on the part of city officials in this situation, and that is chutzpah.

Members of the Baltimore City Council are clamoring for more control of the Baltimore Police Department (BPD) even though they have abrogated the responsibility that they do have for a critical component of the BPD – its disciplinary system.  Council members are urging members of the General Assembly to pass HB 1054, which would transfer operational control of the BPD from the state to the city.

Members of the council are seeking this additional authority at the same time that the mayor is asking the General Assembly to enact a statute that gets around the unwillingness of the city council to pass an ordinance allowing civilians to serve as members of police hearing boards over the objection of the police union.  Basically, the city council wants more power to boss around the Police Commissioner but has more or less admitted it lacks the guts to deal with his employees.  In other words, the council only wants the power to do the easy stuff.

HB 1504 would have no effect on labor relations and collective bargaining between the city and BPD employees over the terms and conditions of employment.  The city council has sufficient control in that area to place civilians on hearing boards.  In the aftermath of the Freddie Gray tragedy and the Department of Justice (DOJ) report concluding the process employed by the BPD to maintain the discipline of its police officers was ineffective the mayor and many members of the city council stated during their campaigns that they would do everything possible to place civilian members on the hearing boards convened to adjudicate disciplinary charges against BPD officers.

The mayor and members of the council stated that placing civilians the boards would improve discipline and restore the faith of city residents in the process.  The city council approved a consent decree with the DOJ that calls for putting civilians on hearing boards.

The city council has it within its power to place civilians on police hearing powers as described in an op ed that I wrote last year published in The Baltimore Sun.  The problem is that members of the council are afraid to exercise that power because doing so will alienate the Fraternal Order of Police (FOP).  Question for the city council:  How the hell do you have the nerve to ask for more power over the police department when you are unwilling to exercise the power that you already have in order do something about the department that you have committed yourself to do?

What makes this situation stranger – and even more pathetic – is that Mayor Catherine Pugh has been before the General Assembly urging members to pass SB 545/HB 1023.  The bill, introduced by members of the Baltimore City delegation at the request of the mayor, is an attempt to get around the fact that city law currently requires the city to bargain with the FOP over the composition of hearing boards convened under the Law Enforcement Officers’ Bill of Rights (LEOBR) to adjudicate disciplinary charges against officers of the BPD.  In other words she is asking the state to do something that the city lacks the guts to do for itself:  Stand up to the FOP.

The composition of the boards has become a major issue because of the FOP’s reluctance to agree to allow civilians to serve as members of boards in the city.  In the op ed described above I urged the city council to withdraw the subject of the composition of the hearing boards from the scope of collective bargaining which then would allow the council to make its own decision on who should sit on the hearing boards as provided under state law.  If city officials want to put civilians on hearing boards, then put civilians on hearing boards.

Rather than ask the city council to change city law, however, Mayor Pugh went to the General Assembly to ask them to supersede city law with a statute prohibiting the city from submitting the subject of the composition of hearing boards to collective bargaining.  It takes a lot of gall for the mayor just to ask the General Assembly to relieve her and the city council of the burden of taking on the FOP.  When you add in the fact that members of the city council are simultaneously trying to persuade the General Assembly that they can be trusted with more control over the police department, however, her request is nothing less than ridiculous.  I don’t think that point is lost on members of the General Assembly.

When the mayor began discussing what is now SB 545/HB 1023 a few months after my op ed was published I posted a comment to my blog in which I quoted a WBAL interview with Senator Bobby Zirkin during which he tried to convey the message in no uncertain terms that the city should solve its own problems over collective bargaining with the FOP.      Senator Zirkin’s comments two weeks ago about SB545/HB1023 reported in a tweet from Sun reporter Ian Duncan indicate that his mind has not been changed, and Senator Zirkin is the chairman of the committee that will decide the fate of SB 545.

I hasten to add that the mayor does not seem to support HB 1504.  She voiced concerns about transferring full operation control to the city similar to those raised in an op ed by former City Solicitor George Nilson.   One of the things that Mr. Nilson was concerned about was that a change in the legal status of the department at this point in time could complicate or even disrupt the process of getting the consent decree with the DOJ approved and implemented.  Maybe in her heart of hearts the mayor knows that the city council can’t be trusted with any more control over the BPD; there was some indication in his op ed that Mr. Nilson may feel the same way, and he speaks from experience.

In summary, we have the mayor and members of the city council pulling in opposite directions, with neither demonstrating any real vision, leadership or political courage.  They do seem to concur in the matter of taking on the FOP over putting civilians on hearing boards; the mayor and council believe it is a good idea – if someone else does it. The city needs help, but it needs to learn to help itself as well, and part of that includes taking some political risks in the course of doing the hard work of governing.

If the indictment on Wednesday of seven officers of the BPD on federal racketeering charges demonstrates anything it demonstrates that there is plenty of work still to be done on achieving an acceptable level of discipline within the BPD.  I am not saying that putting civilians on hearing boards is a panacea for all of the disciplinary problems – not even close.  Indeed, I have my own doubts that it will make much difference at all, and there are plenty of other steps that must be taken.  Regardless, the mayor and city council have committed themselves to the idea, and it would be encouraging to see them actually get one thing done intended to improve the quality of the BPD.

Incidentally, the indictment also helped set the tone for this post:  It drives me nuts to read about members of the council blithering on about wanting more power to do truly important things like redrawing police district lines when it is obvious that there are serious issues that need to be tackled.

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As sort of an addendum to this post I am going to set forth the legal framework of description of the power of the city council over collective bargaining and the composition of police hearing boards.  I have never heard city officials deny that the council has the power to put civilians on hearing boards, but nor have I heard them confirm it – they seem to want to ignore the issue.  One problem has been that members of the media do not press the mayor or members of the city council on the point, perhaps because they are not fully aware of the law.  In any event, here is my breakdown of the relevant law:

1. The BPD is governed by three different types of laws. The General Assembly enacts both “public general laws” of statewide applicability and “public local laws” applicable only to Baltimore.  The city council enacts ordinances within the scope of the powers granted to it by the General Assembly.

2. The composition of hearing boards convened to adjudicate disciplinary charges against police officers across the state is the subject of a public general law, the LEOBR. The LEOBR was amended in 2016 to allow the city or any other local government to pass an ordinance requiring that there be up to two civilian members on a hearing board, appointed by the police chief.  The ordinance can provide that the civilians be either voting or non-voting members.  [State Code, Public Safety Article, § 3-107.]

3. Under the LEOBR a local government can either pass an ordinance dictating the method of selecting the members of a hearing board or it can make the method of selection subject to collective bargaining and binding arbitration; the LEOBR makes it clear that collective bargaining of the method of selection is not required:                                                                                                                                                                                         “A law enforcement agency or the agency’s superior government that has recognized and certified an exclusive collective bargaining representative MAY negotiate with the representative an alternative method of forming a hearing board . . . IF authorized by local law this paragraph [the paragraph authorizing negotiation of an alternative method of selection] is subject to binding arbitration.” [State Code, Public Safety Article, § 3-107(5).]  (Emphasis added.)

4. The General Assembly has provided by public local law that, except as provided in that public law, the provisions of the Municipal Labor Relations Article of the Baltimore City Code enacted by the city council apply to labor relations and collective bargaining between the city and the uniformed and civilian employees of the BPD. [Code of Public Local Laws, § 16-8A(a).]

5. The public local enacted by the General Assembly for the city does not allow matters other than “direct compensation” from being submitted to binding arbitration if the city and the officers’ union are unable to reach agreement on the matters. “Direct compensation” specifically excludes issues pertaining to “disciplinary procedures, investigations and actions.”  [Code of Public Local Laws, § 16-8A(b)(3).]  In other words, even under current law, the FOP can negotiate with the Baltimore Police and Labor Commissioners over the method of selecting members of hearing boards but at the end of the day it is the city council that makes the final decision on the method of selection if the parties can’t agree.

6. As described above, the LEOBR does not require a local government to negotiate with its police employees over the method of selecting members of hearing boards. The decision whether or not to do so is governed by the law of the local government.  Although the public local law enacted for Baltimore by the General Assembly requires the city to negotiate with the police union about issues of direct compensation, nothing in that public local law takes away the authority of the city council under the city charter and code to carve out certain exclusive management rights not involving direct compensation in order to exclude those management rights from the scope of collective bargaining

7. The city charter gives the city council broad power to define the rights of employers and employees vis a vis collective bargaining. [City Charter, § 55(a).]  Enacting pursuant to that power the city council has carved out certain exclusive management (employer) rights.  [Baltimore City Code, Art. 12, § 3-2(a).]  The council can expand those exclusive management rights to include the right to determine the method of selecting members of hearing boards.

The most recent contracts between the city and the FOP expired on June 30, 2016.  The parties have bargained for over a year about the method of selecting members of hearings without reaching an agreement.  It is past time for the city council to act to resolve the impasse.

The council needs to pass one ordinance removing the method of selecting members of hearing boards from the scope of collecting bargaining and another ordinance that sets forth the method of selection as a matter of law.  What is the FOP going to do?  If the FOP argues state law applies then it is absolutely clear that they have no right under state law to submit the method of selection to binding arbitration.  If the FOP argues city law applies then it is absolutely clear that the city council has the right under the city charter to limit the scope of collective bargaining by establishing exclusive employer rights.  Both arguments lead to the same result:  The city council makes the final decision on the method of selection.  The city council needs to stop dithering and get to it.

Here is the flaw in what I have proposed:  It would require the mayor and city council to work together and to act decisively in the face of opposition from the FOP.  That will never happen; the political courage simply isn’t there.  The FOP continues to run the city.  The tail wags the dog in Baltimore and nothing much has changed since my op ed on that subject was published in August 2015.

March 3, 2017

In this morning’s Baltimore Sun there were dueling op eds on a bill pending before the Maryland General Assembly, SB739/HB949, that would deny state contracts to and pension fund investments in private companies that participate in any international movement that refuses to do business in Israel or its occupied territories.  The op ed by attorney Rachel Roberts capably pointed out that the bill offends the First Amendment and is decidedly un-American in its attempt to suppress political dissent.

I’d like to make another point, and will begin doing so with a question.  The bill’s primary sponsor in the Senate was Democratic senator Bobby Zirkin and in the House it was Democratic delegate Benjamin Kramer, and my question is:  What the hell were they thinking?  Are they trying to prove that the Democratic Party stands for nothing more than the ends justified the means, which seems to be the guiding principle of the Trump administration?  At a time when American values are under attack by a Republican president does the Democrat-controlled General Assembly want to show how little regard it has for the value of individual liberty and free expression?

Today the Maryland General Assembly moved with unusual speed in passing a joint resolution that allows the Maryland attorney general to file suit in order to restrain President Donald Trump from exceeding the constitutional limits of his power without the attorney general first obtaining the permission of the governor.  Now Democrats in the General Assembly are pressing forward with a bill that would exceed the constitutional limits of their own power.  It is a stunning display of hypocrisy.

The bill is aimed at the boycott, divestment, and sanctions (BDS) movement intended to advance the interests of Palestinians.  The primary goal of the movement is to force Israel to comply with United Nations Resolution 242 and other international law that prohibits Israel from resettling occupied territories (the West Bank and Gaza) with its own citizens.

The State of Maryland has no right to punish private companies for refusing to do business with entities businesses in a foreign country on moral or political grounds  Even within the state private businesses are free to do business with whomever they choose subject to prohibitions against racial, religious and other discrimination.

In the last century it was okay for companies to refuse to invest in companies from South Africa in order to pressure the South African government to end apartheid.  Today it is fine for companies to refuse to do business in North Carolina in an effort to persuade North Carolina to repeal a statute restricting LGBT rights.  But it is not okay for a private company to refuse to invest in Israeli companies in the hopes of convincing Israel to conform its settlement policy to international law?  Who gets to pick and choose which course of action is good and which one is bad?

The issue for me is not whether participation in the BDS movement is good or bad.  The issue is whether state officials should be deciding for companies whether it is good or bad.  What’s next?  A ban by a red state legislature on awarding contracts to companies who refuse to book stays in Trump hotels for their employees or refuse to purchase Trump-branded products?  I find it almost unbelievable that the General Assembly is willing to go down this path.

Equally implausible is the willingness of Maryland Democrats to surrender the moral high ground to Mr. Trump.  Mr. Trump justifies his travel ban on the “greater good” of protecting this nation’s security.  Mssrs. Zirkin and Kramer justify the curtailment on individual rights in their bill on the “greater good” of protecting Israel.  I fail to see any moral distinction between the two purported justifications, neither of which pass legal muster.

Although most of the scholarly objection to this type of bill is centered on the First Amendment, it seems to me that there are issues under the Commerce Clause as well.  Maryland has absolutely no authority to regulate the actions taken by private citizens in the course of foreign commerce.  Under the Commerce Clause of the United States Constitution regulation of foreign commerce is the sole responsibility of the federal government.  If the state is not trying to regulate foreign commerce by punishing citizens for actions taken in the course of foreign commerce, then what is it doing?

Democrats may want to try to distinguish themselves from the Trump administration by showing that they are willing to stand up for American values, like the rule of law and its regard for individual liberty.  Or, they can pass SB739/HB949 and affirm that they agree with Mr. Trump that the ends always justify the means, and that respect for the rights of individuals is but a secondary concern.

February 15, 2017

The subjects of this wide-ranging (rambling?) post are an informative article by The Sun’s Justin Fenton on the Baltimore City State’s Attorney’s Office, a recent comment by Baltimore Police Commissioner Kevin Davis, and the proposed consent decree agreed to by Baltimore and the United States Department of Justice (DOJ).  First up is my latest critique of the State’s Attorney’s Office.

In yesterday’s paper Fenton reported that 11 out the 17 police shootings in Baltimore during the past 16 months remain under investigation by the Baltimore City State’s Attorney’s Office.  Fenton noted that prosecutors in Baltimore and elsewhere routinely take months to make legal determinations about police actions, even when suspects who survive the encounters are charged immediately.

Fenton cited unnamed analysts for the proposition that “the standards by which police actions are judged are more complicated.”  The standards certainly differ but are not necessarily more complicated.  It is true that applying the standards governing the use of deadly force by police officers to the facts of specific cases can involve some very fine legal judgments, but that is not what is delaying the outcomes of these investigations.

There are two plausible explanations for the delays in Baltimore. The first is that sufficient resources are not being allocated to the task of investigating police shootings simply because there are too few attorneys in the Baltimore State’s Attorney’s Office with the requisite knowledge and experience to competently handle the task – an entirely possible scenario given the exodus of veteran prosecutors from the office.

The second plausible explanation is that there is no management interest in moving the cases along any faster, and that adequate resources therefore are being deliberately withheld or the cases are intentionally being placed on a slow track.  In other words, to use Fenton’s term, the cases “languish” by design.  In either case the frustration of Baltimore police union president Gene Ryan is understandable:

“If the officers did something wrong, prosecute them,” said Ryan, whose union represents all city officers below the rank of captain.  “If they didn’t, let them get back in the saddle and protecting the citizens of Baltimore. What are they waiting for?”

I agree with Ryan.  If the slowness is intentional then State’s Attorney Marilyn Mosby may be trying to convey the impression of a more thoughtful and deliberate process when it comes to alleged police misconduct.  After the Freddie Gray debacle Mosby likely wants to avoid more accusations that she is prone to rash actions and rushes to judgment.  In all fairness, she would not be the first chief prosecutor to be preoccupied by appearances in such matters, with the appearance of deliberateness being more important than deliberateness itself.

It would be hard to fault Mosby for being careful except for the fact that the explanation of the review process for police shooting cases by Deputy State’s Attorney Janice Bledsoe suggests that the process is designed to take as long as possible but is not designed to achieve the most careful decisions.  According to the article, the evidence in a police shooting case is examined by an assigned prosecutor, then the supervisor of the homicide or police integrity unit, then Bledsoe, then Schatzow, and ultimately Mosby.  “It goes through a number of screenings so we can answer all the questions and get a decision,” Bledsoe said in explaining the delays.

If that review is being done sequentially then the process is both inherently inefficient and unlikely to reach the best conclusion.  Let me respectfully suggest that the following is the best practice:  Have the assigned prosecutor and his or her supervisor come up with a recommendation, and then have them present that recommendation with the supporting facts to a panel that includes the final decision maker, Mosby.  If both Bledsoe and Schatzow also need to be on the panel, fine.  After reading the file, listening to a full and frank discussion about the pros and cons of the case, and soliciting the opinions of the individual panel members, Mosby can make the final decision whether to charge or not charge, or to send the case back for more work.

Unless the decision is made in this fashion Mosby and the other panel members do not get the full benefit of each other’s thoughts and questions.  The synergy of the group process leads to more informed decisions in this type of matter.  This should come as no surprise to a bunch of lawyers, because it is one of the theories underpinning the practice of having appellate tribunals hearing oral arguments in panels, with questions and responses flying back and forth.

The multi-level screening process described by Bledsoe is not appropriate to making decisions in police shooting cases where all final decisions whether to charge – or not to charge – should be made by the chief prosecutor.  At the current rate of police shootings Mosby and her deputies would have to sit down about once a month to review police shootings; it seems like a worthwhile expenditure of their time.

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The next subject is a comment by Commissioner Kevin Davis to city lawmakers last week that the Baltimore Police Department (BPD) lacks enough sergeants to adequately supervise patrol officers.  I have been making the point for two years that it is patently obvious that the front-line supervision provided by BPD sergeants and lieutenants is woefully inadequate and is the area in which the critical breakdown in police performance and discipline has occurred.  Police sergeants in particular have been as much part of the problem as part of the solution in terms of disciplinary infractions.

The issue is not one of sheer numbers, however.  The quality of the individuals in the positions and their training are crucial factors, as described in the report of the DOJ investigation of the BPD.  Simply adding more sergeants to the barrel will not have the desired effect until the bad apples are removed, and removed quickly.

In an op ed published in The Sun in 2015 I said that the first step was for the city to get sergeants and lieutenants out of the same union as the patrol officers that they supervise in order to combat the over-identification of supervisors with the officers that they supervise.  Also, the pay differential for supervisors is going to have to be great enough to persuade the best and brightest officers to apply for supervisory positions.

Setting the pay of supervisors at adequate levels is infinitely harder if the same union represents both the rank-and-file and supervisory tiers of employees.  The rank-and-file members vastly outnumber their supervisors in the union and that situation invariably results in the compression of pay scales, not elevating the pay of the relative handful of supervisors to adequate levels.  This concept is so fundamental that I have trouble believing that the city’s Labor Commissioner has not addressed it.

In another op ed published last year I suggested that the General Assembly enact a public local law that would have the effect of exempting BPD sergeants and lieutenants from the Law Enforcement Officer’s Bill of Rights, making it easier to get rid of bad ones.  Neither measure proposed in the op eds has been enacted which, in my opinion, makes it less likely that Commissioner Davis is going to see much improvement in the quality of the supervision of his patrol officers any time soon.

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The final subject is a remark made by United States District Court Judge James Bredar in a letter seeking additional information on the consent decree proposed to the court by the DOJ and the City of Baltimore.  Judge Bredar appeared to question the wisdom of a provision in the decree that would prohibit officers from using a high-crime area as a basis for a stop or detention, or base a detention on someone’s attempt to avoid contact with an officer.  I had the same reaction.

Bredar asked if the parties “intend to impose a standard on the BPD different from that set out in Illinois v. Wardlow.”  In Illinois v. Wardlow the Supreme Court held that a person’s sudden and unprovoked flight from police officers in a high crime area was sufficiently suspicious to justify the officers’ stop of that person; once stopped, the person could be questioned and frisked for contraband or weapons.

I do not have a problem with the Police Commissioner deciding as a matter of policy that he does not want his officers exploiting the full extent of their powers to stop and detain citizens because he has determined that such aggressive policing does more harm than good.  I do have a problem incorporating into a legally binding consent decree a restriction on the powers of BPD officers that exceeds constitutional limitations and does not apply to other officers in the state.

Stated as simply as possible, a ban on lawful police conduct does not belong in a consent decree intended to prevent unlawful police conduct.  To place this in perspective keep in mind that if the DOJ took their case against the BPD to trial and prevailed no judge would as a remedy enjoin the BPD from engaging in lawful police practices; it’s not what judges do under the law.  

The provision in the decree is consistent with the philosophy of the DOJ under President Obama, which opposed using stop-and-frisk (also known as stop-question-and-frisk) as a routine police tactic.  If you ask me why the DOJ believes that it has the expertise to dictate the practices of big city police departments in fighting crime in intense urban evironments I won’t have an answer for you.

In my experience with federal agencies I found that some of them tend to lack what I would describe as institutional humility and are prone to think that they know best, even when it comes to matters that are within the province of state or local government.  State or local officials, no matter how competent, often are regarded by federal officials as local yokels who need to be led around by the nose.

I would not be surprised if this provision attracts the attention of President Trump’s nominee to be Attorney General, Jeff Sessions, because it is the type of overreach by the DOJ that he has described as objectionable in the past. It also is the kind of attitude by federal agencies that has fed the anti-regulatory frenzy of the president and his supporters.  If Sessions sees this provision as objectionable then I would have to agree with him.

It makes no difference whether the current Mayor and Police Commissioner agree with the provision.  They have no more right than the DOJ to make policy decisions for the next Mayor and Police Commissioner.  Times and circumstances change, and police practices may have to change as well.  It is a bit arrogant for current elected and appointed officials to try to impose their policies and beliefs on future elected and appointed officials by memorializing them in a court judgment.

If the existing level of gun violence in some Baltimore neighborhoods does not abate in the near future then even the current Mayor and Police Commissioner may come to regret their agreement to give up the right to use stop-and-frisk in Baltimore’s deadliest neighborhoods, even if the practice offends the sensibilities of some citizens.  Stop-and-frisk can take some additional guns off of the streets.  With homicides in the New Year averaging almost one per day in Baltimore it seems premature and almost foolhardy to remove a perfectly legal tool from the police tool bag before we know exactly how desperate the situation will become.

January 23, 2017

The subjects of this wide-ranging (rambling?) post are an informative article by The Sun’s Justin Fenton on the Baltimore City State’s Attorney’s Office, a recent comment by Baltimore Police Commissioner Kevin Davis, and the proposed consent decree agreed to by Baltimore and the United States Department of Justice (DOJ).  First up is my latest critique of the State’s Attorney’s Office.

In yesterday’s paper Fenton reported that 11 out the 17 police shootings in Baltimore during the past 16 months remain under investigation by the Baltimore City State’s Attorney’s Office.  Fenton noted that prosecutors in Baltimore and elsewhere routinely take months to make legal determinations about police actions, even when suspects who survive the encounters are charged immediately.

Fenton cited unnamed analysts for the proposition that “the standards by which police actions are judged are more complicated.”  The standards certainly differ but are not necessarily more complicated.  It is true that applying the standards governing the use of deadly force by police officers to the facts of specific cases can involve some very fine legal judgments, but that is not what is delaying the outcomes of these investigations.

There are two plausible explanations for the delays in Baltimore. The first is that sufficient resources are not being allocated to the task of investigating police shootings simply because there are too few attorneys in the Baltimore State’s Attorney’s Office with the requisite knowledge and experience to competently handle the task – an entirely possible scenario given the exodus of veteran prosecutors from the office.

The second plausible explanation is that there is no management interest in moving the cases along any faster, and that adequate resources therefore are being deliberately withheld or the cases are intentionally being placed on a slow track.  In other words, to use Fenton’s term, the cases “languish” by design.  In either case the frustration of Baltimore police union president Gene Ryan is understandable:

“If the officers did something wrong, prosecute them,” said Ryan, whose union represents all city officers below the rank of captain.  “If they didn’t, let them get back in the saddle and protecting the citizens of Baltimore. What are they waiting for?”

I agree with Ryan.  If the slowness is intentional then State’s Attorney Marilyn Mosby may be trying to convey the impression of a more thoughtful and deliberate process when it comes to alleged police misconduct.  After the Freddie Gray debacle Mosby likely wants to avoid more accusations that she is prone to rash actions and rushes to judgment.  In all fairness, she would not be the first chief prosecutor to be preoccupied by appearances in such matters, with the appearance of deliberateness being more important than deliberateness itself.

It would be hard to fault Mosby for being careful except for the fact that the explanation of the review process for police shooting cases by Deputy State’s Attorney Janice Bledsoe suggests that the process is designed to take as long as possible but is not designed to achieve the most careful decisions.  According to the article, the evidence in a police shooting case is examined by an assigned prosecutor, then the supervisor of the homicide or police integrity unit, then Bledsoe, then Schatzow, and ultimately Mosby.  “It goes through a number of screenings so we can answer all the questions and get a decision,” Bledsoe said in explaining the delays.

If that review is being done sequentially then the process is both inherently inefficient and unlikely to reach the best conclusion.  Let me respectfully suggest that the following is the best practice:  Have the assigned prosecutor and his or her supervisor come up with a recommendation, and then have them present that recommendation with the supporting facts to a panel that includes the final decision maker, Mosby.  If both Bledsoe and Schatzow also need to be on the panel, fine.  After reading the file, listening to a full and frank discussion about the pros and cons of the case, and soliciting the opinions of the individual panel members, Mosby can make the final decision whether to charge or not charge, or to send the case back for more work.

Unless the decision is made in this fashion Mosby and the other panel members do not get the full benefit of each other’s thoughts and questions.  The synergy of the group process leads to more informed decisions in this type of matter.  This should come as no surprise to a bunch of lawyers, because it is one of the theories underpinning the practice of having appellate tribunals hearing oral arguments in panels, with questions and responses flying back and forth.

The multi-level screening process described by Bledsoe is not appropriate to making decisions in police shooting cases where all final decisions whether to charge – or not to charge – should be made by the chief prosecutor.  At the current rate of police shootings Mosby and her deputies would have to sit down about once a month to review police shootings; it seems like a worthwhile expenditure of their time.

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The next subject is a comment by Commissioner Kevin Davis to city lawmakers last week that the Baltimore Police Department (BPD) lacks enough sergeants to adequately supervise patrol officers.  I have been making the point for two years that it is patently obvious that the front-line supervision provided by BPD sergeants and lieutenants is woefully inadequate and is the area in which the critical breakdown in police performance and discipline has occurred.  Police sergeants in particular have been as much part of the problem as part of the solution in terms of disciplinary infractions.

The issue is not one of sheer numbers, however.  The quality of the individuals in the positions and their training are crucial factors, as described in the report of the DOJ investigation of the BPD.  Simply adding more sergeants to the barrel will not have the desired effect until the bad apples are removed, and removed quickly.

In an op ed published in The Sun in 2015 I said that the first step was for the city to get sergeants and lieutenants out of the same union as the patrol officers that they supervise in order to combat the over-identification of supervisors with the officers that they supervise.  Also, the pay differential for supervisors is going to have to be great enough to persuade the best and brightest officers to apply for supervisory positions.

Setting the pay of supervisors at adequate levels is infinitely harder if the same union represents both the rank-and-file and supervisory tiers of employees.  The rank-and-file members vastly outnumber their supervisors in the union and that situation invariably results in the compression of pay scales, not elevating the pay of the relative handful of supervisors to adequate levels.  This concept is so fundamental that I have trouble believing that the city’s Labor Commissioner has not addressed it.

In another op ed published last year I suggested that the General Assembly enact a public local law that would have the effect of exempting BPD sergeants and lieutenants from the Law Enforcement Officer’s Bill of Rights, making it easier to get rid of bad ones.  Neither measure proposed in the op eds has been enacted which, in my opinion, makes it less likely that Commissioner Davis is going to see much improvement in the quality of the supervision of his patrol officers any time soon.

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The final subject is a remark made by United States District Court Judge James Bredar in a letter seeking additional information on the consent decree proposed to the court by the DOJ and the City of Baltimore.  Judge Bredar appeared to question the wisdom of a provision in the decree that would prohibit officers from using a high-crime area as a basis for a stop or detention, or base a detention on someone’s attempt to avoid contact with an officer.  I had the same reaction.

Bredar asked if the parties “intend to impose a standard on the BPD different from that set out in Illinois v. Wardlow.”  In Illinois v. Wardlow the Supreme Court held that a person’s sudden and unprovoked flight from police officers in a high crime area was sufficiently suspicious to justify the officers’ stop of that person; once stopped, the person could be questioned and frisked for contraband or weapons.

I do not have a problem with the Police Commissioner deciding as a matter of policy that he does not want his officers exploiting the full extent of their powers to stop and detain citizens because he has determined that such aggressive policing does more harm than good.  I do have a problem incorporating into a legally binding consent decree a restriction on the powers of BPD officers that exceeds constitutional limitations and does not apply to other officers in the state.

Stated as simply as possible, a ban on lawful police conduct does not belong in a consent decree intended to prevent unlawful police conduct.  To place this in perspective keep in mind that if the DOJ took their case against the BPD to trial and prevailed no judge would as a remedy enjoin the BPD from engaging in lawful police practices; it’s not what judges do under the law.  

The provision in the decree is consistent with the philosophy of the DOJ under President Obama, which opposed using stop-and-frisk (also known as stop-question-and-frisk) as a routine police tactic.  If you ask me why the DOJ believes that it has the expertise to dictate the practices of big city police departments in fighting crime in intense urban evironments I won’t have an answer for you.

In my experience with federal agencies I found that some of them tend to lack what I would describe as institutional humility and are prone to think that they know best, even when it comes to matters that are within the province of state or local government.  State or local officials, no matter how competent, often are regarded by federal officials as local yokels who need to be led around by the nose.

I would not be surprised if this provision attracts the attention of President Trump’s nominee to be Attorney General, Jeff Sessions, because it is the type of overreach by the DOJ that he has described as objectionable in the past. It also is the kind of attitude by federal agencies that has fed the anti-regulatory frenzy of the president and his supporters.  If Sessions sees this provision as objectionable then I would have to agree with him.

It makes no difference whether the current Mayor and Police Commissioner agree with the provision.  They have no more right than the DOJ to make policy decisions for the next Mayor and Police Commissioner.  Times and circumstances change, and police practices may have to change as well.  It is a bit arrogant for current elected and appointed officials to try to impose their policies and beliefs on future elected and appointed officials by memorializing them in a court judgment.

If the existing level of gun violence in some Baltimore neighborhoods does not abate in the near future then even the current Mayor and Police Commissioner may come to regret their agreement to give up the right to use stop-and-frisk in Baltimore’s deadliest neighborhoods, even if the practice offends the sensibilities of some citizens.  Stop-and-frisk can take some additional guns off of the streets.  With homicides in the New Year averaging almost one per day in Baltimore it seems premature and almost foolhardy to remove a perfectly legal tool from the police tool bag before we know exactly how desperate the situation will become.

January 23, 2017

Under Article V, Section 7 of the Maryland Constitution the State’s Attorney for a county or Baltimore City may be removed for incompetence or willful neglect of duty by a vote of two-thirds of the Maryland Senate upon the recommendation of the Attorney General. The power of the Attorney General to inquire into the performance of duties by a State’s Attorney is necessarily implied by the section.  Maryland Attorney General Brian Frosh should open an inquiry into the manner in which Baltimore City State’s Attorney Marilyn Mosby is running her office before it is too late to repair any damage that is being done.

In the latest upheaval within the office both the chief administrator and the chief spokesperson for Mosby resigned this week with the chief spokesperson, Rochelle Ritchie, taking a parting shot at Mosby’s leadership of the office. These two resignations followed the resignation of last month of another administrator, Mosby’s chief of external affairs, who had been Ritchie’s supervisor.

The warning signs of mismanagement have been there from the first month that Marilyn Mosby took office as the State’s Attorney for the City of Baltimore, beginning with the large-scale and disruptive exodus of experienced prosecutors who carry out the day-to-day responsibilities of the office.  In some cases vacant prosecutor positions were filled with administrators – who now have joined in the exodus.

The problem of gaffes by prosecutors compromising the prosecution of criminal defendants in the city did not start with Mosby but she has done little or nothing to fix it, and it has continued on her watch; indeed, the dearth of experienced prosecutors in her office makes the problem much harder to address.  Last month yet another defendant was acquitted of murder because of what appears to be the inadequate preparation of a case for trial by police and prosecutors.

I don’t need to mention the Freddy Gray debacle, as well-documented as that was. I made my personal views known in an op ed that appeared in The Baltimore Sun.  Even a good chief prosecutor would have difficulty recovering from a performance as dismal and questionable as that, and in my opinion Mosby is not a good chief prosecutor.

One action in particular taken by Mosby in the aftermath of the Freddy Gray cases caught my attention and the attention of other experienced prosecutors.  Mosby and her two chief deputies were under fire in the national media, and a complaint had been filed against them with the Maryland Attorney Grievance Commission.  At a time when Mosby need to make sure that the routine operations of her office were in good hands she hired a third deputy, Valda Ricks, to be her Chief of Operations.

Ricks was a career public defender without any experience as a prosecutor.  It is no insult to Ricks’ general competence as a lawyer to state that I and others were flabbergasted that Mosby would appoint a lawyer without any prosecutorial experience to oversee an office with over 200 prosecutors.  The functions of a public defender and a State’s Attorney have little in common other than they both involve the practice of criminal law.  It was an odd appointment that did not seem to strengthen the office where it needed the most, which is in the area of experienced oversight of prosecutions.

In an article published in November the Wall Street Journal reported that during Mosby’s tenure prosecutors have dropped or dismissed the charges in 43% of the felony cases handled by her office.  That is a very high number, and in my own post I expressed frustration at Mosby’s unwillingness or inability to explain why so many cases are being washed out.  At this point my hypothesis is that she and her staff are so fearful of additional embarrassing acquittals and a further nosedive in their conviction rate that only the cases that they deem most winnable are allowed to go forward.

On her way out the door this week Rochelle Ritchie stated that in the future she looked forward to working under “respectable and seasoned leadership,” an obvious jab at Mosby. Mosby’s peevishly retweeted a horoscope in response:  “An Aquarius usually has no patience for people with tiny minds.” Mosby later deleted the tweet, but that did nothing to diminish the perception that there is a troubling lack of maturity in certain of her decisions.

In all of my years in government I can count on one hand the times I have heard an employee hopeful of landing another job somewhere say something like Ritchie did upon resigning from a job.  In and of itself it means little, but it is one more piece of evidence suggesting that something destructive is going on inside Mosby’s office.

As I did with my op ed suggesting that the Maryland Attorney Grievance Commission investigate Mosby for the manner in which she handled the Gray prosecutions I want to emphasize that I am offering no conclusions other than to say that sometimes where there is smoke there is indeed fire, and an inquiry needs to take place.  Let the chips fall where they may after a fair and impartial inquiry.

Article V, Section 7 is in the Maryland Constitution for a reason, and it imposes a duty on the Attorney General to act if he has reason to believe that Mosby is not competently managing her office. The issue is certainly worthy of the Attorney General’s time because Baltimore can ill afford a lack of competence in any component of the criminal justice system.

January 5, 2017

An article this week by Childs Walker of The Baltimore Sun described how the service academies are making it easier for graduates to go directly from a service academy into the NFL.  An exception to the policy of requiring graduates to serve at least two years of active duty before applying to go into the reserves was made for Keenan Reynolds, the Naval Academy graduate now on the Ravens’ practice squad who was allowed to go into the Navy Reserve immediately after graduation.

The policy has been changed, and in the future all academy athletes will be allowed to apply to go directly from the academies into the reserves in order to pursue careers in professional sports.  Decisions on the applications will be made on a case-by-case basis and presumably will continue to be based on the existing standard, which is “a strong expectation their professional sports activity will provide the DoD with significant favorable media exposure likely to enhance national recruiting or public affairs.”

I bit my lip on this issue when it was announced in May that the policy had been changed for Reynolds, out of concern that I did not want my comments to appear to be personal to Reynolds, who by every measure is a remarkable young man with his head and his heart in the right places.  Of course, now that I think about it many academy graduates are remarkable people in their own rights, but there is a bigger issue.

The bigger issue is the matter of misplaced values.  The new policy elevates the value of major collegiate and professional sports over the value of service to country and fulfillment of contractual commitments.  It also elevates the importance of professional sports over the importance of other professional and occupational pursuits.

First of all, let’s sort out the bullshit:  Opening this pathway to a professional sports career and making it public is all about recruiting standout male high school football and basketball players to the service academies, period.  To star athletes for whom playing in the NFL or NBA is their dream the prospect of waiting two or more years after graduation before trying out for a professional team can end any thoughts they have of attending service academies.

Moreover, the appeal of attracting standout football and basketball players to the academies lies mainly in the desire of alumnae to bask in the reflected glory of successful academy football and basketball teams.  They also enjoy the cachet of having fellow alumnae playing in the NFL and NBA.  Graduates of the service academies dominate the halls of the Pentagon, and exert an enormous influence on academy policies.  They want their alma maters to win football and basketball games (especially football), and that is what is driving the policy change.

Any other claim is window dressing.  The statement by Secretary of Navy Ray Mabus that increasing the number of academy graduates playing in the NFL and NBA helps recruiting in general is unprovable, and dubious.  For one thing, any enlisted man or woman (or officer, for that matter) who joins the service because of the success of an academy football or basketball team is misguided, and enlisting for the wrong reason.  Join the Navy and go to war because “our” football team had a winning season?  In other words, any claim that the new policy has to do with anything other than winning more football and basketball games is smoke headed right up your arse.

Also, put out of your mind that this has anything to do with recruiting high school athletes who play minor sports or with recruiting female athletes in general.  Do you think the brass care about recruiting women to academies who hope after graduation to play in the WNSL (that’s the Women’s National Soccer League for you non-soccer fans) or the WNBA?  The new policy will have to be administered in a non-discriminatory manner, so there will women allowed to pursue their dreams of playing in the WNSL or the WNBA, but that is not what this policy is about.  This is about football and men’s basketball.

Before I go any further I should disclose facts that may influence my point of view.  I owe my college education to the fact that I received a four-year ROTC scholarship, which came with an obligation to serve four years on active duty with the Army.  I served that time plus three more years on active duty, and an additional 18 years in the reserves.

My grandfather, father, both uncles, brother, son and son-in-law all served in the military, with all branches covered – Army, Air Force, Navy and Marine Corps.  There is no anti-military bias in my family, and I do not begrudge any veteran any benefit or advantage to which he or she is entitled.

I also am a college and professional football fan, with loyalties to the University of Pittsburgh and the Ravens, respectively.  I am trying to downsize, and came across a scrapbook in which I have newspaper clippings of college football games going back to 1957.  (No, I didn’t throw it away.)  College football has changed considerably since then and not all for the better.

Money is of course the big factor behind the changes to the revenue-producing college sports and it dominates all other considerations.  Players at football factories such as Alabama and Ohio State live lives that are only superficially similar to the college experiences of other students.  It is fair to say that teams from those schools play on behalf of the schools without really being part of the schools, and football certainly is not part of the core academic missions of the schools.  If anything the teams are part of the fundraising side of the institutions rather than the educational side.

What has become of college football is a story in itself, but suffice it to say that no other country uses its universities as the training grounds for major professional sports.  The NFL, with its enormous profits, benefits directly from the training provided to its future players by these schools but returns none of those profits to the schools.  That also is quite different from many European countries, where professional soccer teams have their own “academies” and pay youth teams and training programs for the costs of developing players.  Of course the NCAA itself needs no financial help from the NFL, given that it has plenty of money of its own.  Both the NFL and NCAA have pretty sweet deals, and there is a lot of money in a relatively few hands.

Someday things may change, but it won’t be any time soon.  In the meantime I do not believe it is necessary to elevate major collegiate and professional sports to an even higher plane in our society.  Playing on the Ravens’ taxi squad does not equate to military service and should not be treated as such for purposes of fulfilling a commitment made at the time of entering a service academy.  And I don’t accept for one minute the argument that serving a military commitment in the reserves is the same as serving it on active duty.

Roger Staubach graduated from the Naval Academy in 1965 and served four years on active duty, including one year in Vietnam.  He subsequently played ten years for the Dallas Cowboys, winning two Super Bowls.  He repaid the Navy for his education by serving out his full active duty commitment before going on to play professional football.

Staubach’s career reflected the principles of commitment and sacrifice.  So did the career of Napoleon McCallum.  After McCallum graduated from the Naval Academy in 1985 he was able to play one year of professional football with the Los Angeles Raiders in 1986 because he was stationed in Long Beach, and the Navy did not prohibit secondary employment that did not interfere with duty requirements.  He was reassigned to sea duty in 1987, however, and missed the next three seasons of professional football while fulfilling the remainder of his service commitment.

McCallum’s interrupted pro football career, which ended because of a severe leg injury in 1994, never picked up where it left off when he went to sea in 1987.  McCallum made sacrifices because of the commitment he made to the Navy, and those sacrifices were based on the principle that service to his country came first.

At some point when you start making “exceptions” to fundamental principles they no longer are fundamental principles – they become sort of like guidelines that can be ignored if expedient to do so.  Repaying a four year education with five years of active military service to your country is the deal, and making exceptions to the deal to allow graduates to play professional sports (at salaries generally exceeding those paid to second lieutenants and ensigns, by the way) is contrary to the principle that a deal is a deal, and to the value properly placed on service to the country.

Finally, why isn’t the same policy applied to academy graduates who aspire to pursue careers in the private sector in business, medicine, science, engineering, music or, heaven forbid, law?  Is a graduate who displayed exceptional scientific aptitude and who wants to pursue a career in research without going on active duty less deserving of the chance to go directly into the reserves?  Apparently yes, because it is unlikely that a career spent in a laboratory “will provide the DoD with significant favorable media exposure likely to enhance national recruiting or public affairs.”  Do we have to measure everything in this country by its value in gaining “media exposure”?

In my opinion the policy change is misguided and points the ethos of the service academies in the wrong direction.  Yes, I understand why well-intended football fans wanted to see a wonderful young man like Keenan Reynolds be able to pursue a professional football career without making the sacrifices that Staubach and McCallum made.  On the other hand, sacrifice sometimes is the consequence of adhering to principles, and academies should be embracing that fact rather than shying away from it.

Pearl Harbor Remembrance Day, 2016

The other day I tweeted that Maryland State Senator Ulysses Currie of Prince George’s County was a “self-serving piece of crap” in response to the announcement that he had abruptly rescinded his resignation from the State Senate.  Calling Currie a piece of crap was harsh and unnecessary – have I learned nothing from our president-elect about the use of Twitter?  I will say in my own defense that this latest story about Currie rubbed me the wrong way.  I will explain.

First of all, I did not believe him when he said that what caused him to change his mind was the lack of civility among those seeking to fill the remainder of his term.  Secondly, and most importantly, the announcement by Currie reminded me of what I regard as one of the most pathetic and maddening episodes in Maryland’s long history of political scandal.

When Currie, 79, submitted his resignation he explained that his failing health would not allow him to complete his term ending in 2018 and that he simply did not have the strength to do the job.  In rescinding his resignation he stated that he was doing so primarily because he couldn’t tolerate the lack of civility among the candidates seeking to be chosen by the Democratic State Central Committee to serve out his term.  Currie said the succession battle “has created a level of divisiveness and discord I have rarely seen in Prince George’s County and which I cannot allow to continue.”

Oh, and Currie also said that he had wanted his wife, the Rev. Shirley Gravely-Currie, to take his seat as a caretaker until the 2018 election.  According to Currie she was the only person who “came forward without the intention of using the appointment to gain an election advantage over others.”

Sorry, Senator, but I don’t believe that the main reason behind the withdrawal of your resignation was the bickering.  I believe that you were disappointed when you found out that your “keep it in the family” succession plan wasn’t going over very well and that your wife did not have the votes to get appointed to the seat.  You aren’t the player in state politics that you were a decade ago and once you submitted your resignation you lost whatever influence you had left.

By all accounts Currie, a former school teacher, is unfailingly pleasant and has been a model of civility during his 30 years in the General Assembly.  He makes it a point to try to get along with everyone and is liked by virtually everyone who meets him.  Before his fall from grace he also was one of the most powerful legislators in Annapolis.

In 2010 Curry was indicted on federal charges  that he took more than $245,000 in bribes to use his position and influence to do favors for a grocery chain, Shoppers Food Warehouse.  The charges stemmed from revenue from a “consulting contract” with Shoppers that Currie failed to disclose as required by state ethics law on financial disclosure forms.  The financial disclosure forms are filed annually by legislators and Currie did not disclose his relationship with Shoppers in any of the five annual submissions covering the period that he received money from Shoppers.

State officials testified at trial that Currie’s failure to disclose that he was working for Shoppers led them to react to his requests on behalf of Shoppers’ as if he was making them in his capacity as a state legislator rather than as a lobbyist for Shoppers.  Prosecutors argued that Currie’s failure to report his employment by Shoppers was evidence that Currie realized that the arrangement with Shoppers was illicit and that he was taking bribes rather than doing the “normal” favors that legislators do for constituents.

Although prosecutors described the arrangement with Shoppers as a “pay-to-play” scheme Currie was acquitted of the charges by a federal jury.  A number of jurors later commented that Currie’s wrongdoing was an ethical lapse for the General Assembly to deal with rather than a crime.  As one juror observed:  “There was clearly a conflict of interest, questionable stuff that needs to be looked at.”

Most observers attributed his unexpected acquittal in large part to the parade of current and former state officials who went before the jury and attested to Currie’s reputation and character.  Character witnesses included U.S. House Minority Whip and former president of the Maryland Senate Steny Hoyer and former governor Robert Ehrlich.  Some saw the number of high-ranking officials willing to testify on Currie’s behalf as a testament to the goodwill that Currie had accumulated through years of public service; others saw it as a nauseating example of the so-called “culture of corruption” that prevails in Annapolis.

Personally, what I found most offensive about the character testimony was what it said about state government.  Timothy Maloney, a highly regarded lawyer and influential former state delegate, was the first character witness called by the defense and Maloney implied that dimwittedness could be behind Currie’s failure to adhere to state ethics laws.

Maloney’s unforgettable testimony was that Currie was not among the more intelligent members of the General Assembly:  “No one would call him smart,” was how Maloney described Currie to the jury.  He’s just not very astute when it comes to the mechanics of legislating,” Maloney further explained. “I think most legislators would tell you the same thing. . . . It hurts me to say that, because he’s a wonderful, wonderful person.”

Currie was not just some backbencher.  At the time of Maloney’s testimony Currie had been in the General Assembly for 24 years, the last eight of which he was chairman of the powerful Senate Budget and Taxation Committee, one of the most important positions in the General Assembly.

Defense attorneys tried to walk Maloney’s characterization back a bit, with other witnesses describing Currie as disorganized and sloppy with paperwork rather than as just plain stupid.  Currie’s attorneys argued to the jury that Currie was not trying to hide an illegal arrangement with Shoppers; he was just too forgetful and careless to correctly fill out financial disclosure forms.

Currie was appointed to the post because he was a loyal Democratic foot soldier in the General Assembly who never made waves.  The man who appointed him, Senate President Mike Miller, said after Currie was acquitted:  “Senator Currie is a good and decent man.  He may have made some mistakes, but he did not commit a crime.”  In the upper reaches of state government loyalty often is valued above all else, including competence.

I was not upset that the jury acquitted Currie on the bribery charges.  Juries are there to make decisions and generally do the best job that they can.  I was angry at the idea that a person who is not very smart and had not learned the “mechanics of legislating” despite a lengthy career in the General Assembly could be named to lead the Senate committee charged with considering all legislation that affects the state’s operating and capital budgets.

I was dumbfounded when his friends and former friends in the General Assembly came forward to defend him by matter-of-factly describing the former chairman of the Senate Budget and Taxation Committee as too forgetful or disorganized – or as too stupid – to abide by state ethics law.  The whole episode had a surreal and distasteful quality to it.  Certainly Currie’s actions were not the most venal in the long history of political scandal in Maryland but the story of his rise to prominence in the General Assembly and his trial and acquittal painted a singularly unflattering portrait of state politics.

So, Senator Currie, I regret calling you a piece of crap; that fails to give you credit for rising from the humblest of beginnings and treating people with dignity and respect during your entire career.  I don’t regret calling you self-serving, however, and it is time for you to take the pension that you earned for your 30 years in the General Assembly and enjoy your retirement.  You are a nice man but, despite your protestations, the citizens of your district and the state will get along fine without you or your wife.

December 5, 2016

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