UPDATE: Yep. Sloppy due process confirmed (via CNN):
The Baltimore police investigation into the death of Freddie Gray doesn't support some of the charges, including the most serious, filed by the Baltimore City State's Attorney, potentially allowing lawyers representing the police officers the opportunity to undercut the prosecution, according to officials briefed on the separate probes conducted by the State's Attorney and police.
Officials familiar with the probes also say the homicide investigation run by police investigators at most contemplated a manslaughter charge, not second degree murder as Mosby charged one of the officers, Caesar Goodson. To win conviction for murder, prosecutors must prove intent to kill. Manslaughter relates to unintentional killings.
In addition, homicide investigators who were briefed by the medical examiner's office believed the examiner's autopsy report would likely find the cause of death to fall short of homicide, according to one official familiar with the case.
Instead, Mosby said that the medical examiner concluded that Gray's death was a homicide and that Gray's fatal injury to the head occurred in a police transport van that was taking him to the police precinct.
According to an official with Maryland's office of the chief medical examiner, where Gray's autopsy was performed, information was shared with police investigators throughout the process, a common practice. But the official said there is only one conclusion on manner of death and that was contained in the final autopsy report delivered to Mosby on the same day she announced her decision to bring charges.
Last week, Baltimore erupted in riots over the death of Freddie Gray, who died from a severe spinal injury while in police custody. He didn’t experience his fatal injury while being arrested, which was recorded by bystanders. The 45-minute van ride afterwards remains hazy, though it appears that his fatal injury was sustained during the van ride on the day of his arrest–April 12–causing him to slip into a coma and die a week later.
The rioting that ensued was so severe that Gov. Larry Hogan issued a state of emergency and activated the National Guard. The city imposed a 10 p.m. curfew to restore order as well. As police turned over their report to Marilyn Mosby, Baltimore City’s State Attorney, she filed several charges against the officers involved in Gray’s death, including second degree murder, involuntary manslaughter and misconduct in office.
Mosby’s family has ties to law enforcement, with five generations of her family wearing the badge to serve and protect. Her grandfather was one of the first black police officers in Massachusetts. Yet, now that charges have been filed, the state attorney is facing conflict of interest allegations:
In the run-up to Gray’s charges, Mosby had been criticized for her lack of experience having never held elected office before, as well as a potential conflict of interest regarding her husband Nick, who is a city council member representing the neighborhood where Gray was arrested. Mosby has brushed off that criticism, saying that she doesn’t answer to the city council but by the constituents who elected her.
Now that charges have been brought, she’ll face yet more scrutiny — not least from Baltimore’s police union, which accused Mosby Friday of having a conflict of interest in this case due to her “close relationship” with the Gray family attorney. According to the Baltimore Sun, Billy Murphy, the Gray family’s attorney, gave Mosby $5,000 for her campaign and was part of her transition committee.
At the same time, the Baltimore Police Department isn’t necessarily a shining example of the honorable duty police officers take upon themselves every day (via FiveThirtyEight) [emphasis mine]:
Over the seven years that ended in 2011, at least 55 of Baltimore’s police officers were arrested on personal or professional charges, according to Bowling Green State University criminologist Philip M. Stinson, whom we profiled last week. Stinson calculates two different rates to compare police departments of different sizes serving cities with different populations. The per-officer rate is the number of officers arrested divided by the number of sworn officers, using the 2008 Census of State and Local Law Enforcement Agencies. The per-capita rate is the number of officers arrested divided by the city’s population in the 2010 census. Among the 200 largest U.S. state and local law-enforcement agencies, Baltimore’s police department had the 14th-highest per-officer arrest rate, more than double the average. And it had the second-highest per-capita officer arrest rate, eight times the average and below only the rate in New Orleans. Both rates were about twice as high as those of two neighboring major cities: Philadelphia and Washington, D.C.
This data should be treated with caution. Stinson’s data set is based on Google Alerts, so it doesn’t necessarily capture every case in which an officer was arrested or charged with a crime.
Another data-collection project, Mapping Police Violence, tracks people killed by police officers around the country. Sam Sinyangwe, a statistician, researcher and advocate with the project, earlier this month provided us with data on those killings by state. This week, Sinyangwe sent us data on the 100 most populous U.S. cities, over the 15 months from January 2014 through March 2015. During that period, the Baltimore police killed six black men, and the Maryland Transit Administration police force killed one Hispanic man in Baltimore. Three of the men killed were unarmed, including two of those killed by the Baltimore Police Department. In the 100 biggest cities overall, police officers killed 429 people, 85 of them unarmed, according to Sinyangwe’s coding. Per capita, the rates of all people and of unarmed people killed by police officers in Baltimore were above average for big cities — although in 87 of the 100 cities, police officers killed at least one person during the time period studied.
FiveThirtyEight also mentioned that the city has a "history of improper arrests," which is why Mosby said the arrest of Gray was also illegal. The police noted that Gray had an illegal knife, but Mosby noted that the knife found on Gray was not a switchblade, nor a violation of Maryland law:
Whatever happens in the case, Gray’s arrest fits the pattern cited in a 2006 lawsuit that accused the Baltimore police of arresting thousands of people on minor or even made-up charges, then releasing them before the police had to present the case to a judge. The suit was filed by the NAACP and the American Civil Liberties Union.1
According to data from the state’s attorney’s office cited in the suit, in 2005 the Baltimore Police Department arrested 76,497 people without warrants and released a third of them “prior to any involvement by a defense attorney or any decision by a court commissioner or judge.” Forty-three percent of those arrests were for minor crimes that rely heavily on officers’ discretion, such as loitering, disorderly conduct and disturbing the peace.
“Thus,” the suit claimed, “prosecutors indicated that they could not prove charges against those persons arrested for often vague ‘quality of life’ offenses in 2005, which amounted to nearly 15 percent of the persons arrested without a warrant during that year.”
The suit didn’t compare Baltimore’s arrest statistics to those in other cities, and comparable data isn’t readily available. But David Rocah, a senior staff attorney for the ACLU in Maryland, called the numbers “staggering” and “unmatched by any other city that I know of.”
The city settled the suit in 2010 and agreed to a range of reforms including increased training, new data collection and the appointment of an independent auditor. But in 2012, the auditor found that the city wasn’t fully complying with that settlement.
Almost none of Baltimore’s leaders at the time of the suit are still in power, and local advocates say they’ve seen some signs of change. The number of arrests has fallen sharply, from more than 100,000 in 2005 to less than 40,000 last year, as crime has generally continued to decline. But Paul DeWolfe, Maryland’s state public defender, said the protests following Gray’s death show the city hasn’t restored trust between residents and their police force.
So, the police department has its issues. This week, Mayor Stephanie Rawlings-Blake asked the Justice Department to conduct a civil rights investigation into the police department to uncover possible patterns of abuse and discrimination. Baltimore Police Commissioner Anthony Batts admitted that his department was unprepared for the size of the demonstration, but also acknowledged that there was a trust issue between the community and the police–and that his officers need to realize that they’re “part of the problem.”
"The community needs to hear from us that we haven't been part of the solution, and now we have to evolve. Now we have to change,” he said in an interview with CNN’s Evan Perez.
Yet, now it seems that due process can’t even be executed properly, with Page Croyder–who spent 21 years at Baltimore’s state attorney’s office–ripping Mosby for being too hasty in bringing charges forward against the six officer involved in Gray’s death:
Alan Dershowitz, the noted defense attorney, sharply criticized her for using her charging power as "crowd control." John Banzahf, a George Washington University law professor, predicted the eventual dismissal of most if not all the charges. The breadth of the charges, Ms. Mosby's overreaching, is all-too-obvious.
Any prosecutor interested in the truth and in justice would have used all the tools at her disposal to find them. Ms. Mosby ignored them. She has one of the most experienced homicide prosecutors in the state of Maryland as chief of her homicide unit, but did not ask him to investigate. She had the police report all of one day before filing charges, her mind already made up. And she failed to make use of the grand jury to gather, probe and test the evidence before a group of average citizens.
In fact, Ms. Mosby was so hasty it appears she locked up two completely innocent officers. She charged Freddie Gray’s arresting officers with “false imprisonment” because she said the knife that Gray had on him was legal. In fact, as The Sun reported, the Police Task Force found it to be illegal after all. It was Ms. Mosby who had no probable cause to lock the arresting officers up, an injustice she could have easily avoided by taking her time.
Published ethical standards prohibit the use of a prosecutor's powers for political (crowd control) or personal (career ambition) purposes. They demand that prosecutors be fair and objective and protect the innocence. Instead Ms. Mosby, without all of the evidence yet available to her, pandered to the public by promising "justice" for Freddie Gray.
Croyder adds that Mosby actions will damage “the cause of justice” in a two-pronged assault. First, if the courts see this as overreach and toss the charges, the system will be viewed as biased and not working for those affected by perceived police brutality and abuse. Second, it will prompt officers not to follow standard protocol for arrests, fearing that they will land themselves in civil and criminal trouble if they take someone into custody that isn’t in accordance with what she feels is probable cause.
“Mere mistakes, or judgments exercised under duress, can land them [police] in the pokey,” she wrote.
Now, given what appears to be an institutional problem with the police–and the state attorney office’s alleged overreach–it doesn’t warrant rioting, looting, vandalism, or arson. Megan McArdle of Bloomberg had a great post on the failures of rioting to achieve social justice. Often times, the disadvantaged who rage in the night harm the very communities they wish to see change, depriving their fellow neighbors of employment and stores that provide them with basic goods. Oh, and crime tends to be attracted to these areas [emphasis mine]:
The voices that try to rationalize the violence are presenting a dangerous false choice. They say that this was simply the inevitable result of monumental injustice, so let's stop talking about the riots and start talking about the injustice. We should always talk about injustice, and strive to end it. … But we have to talk about the riots too, because they represent another urgent moral crisis.
The public disorder of the 1960s also helped undermine exactly the sort of public policy programs -- a more rehabilitative criminal justice policy, greater social spending -- that the riots were supposed to prove the need for. As David Frum writes in "How We Got Here," the nation hardened its attitudes between 1965 and 1974; law-and-order conservatism became the norm for American men and women with all levels of education. What happened between 1965 and 1974 to explain that? Highly televised riots are part of the answer.
Therein lies a tragic truth about rioting: It doesn't work. The left can try to treat a crime wave as a call for social justice, but that voice will be drowned out. The disorder will only fuel calls for order. Many residents understand this: Civic leaders in Baltimore, and Freddie Gray's family, were out this week calling for calm, while people sitting at computers many comfortable miles away were declaring the riots legitimate.
The problems in Baltimore's policing are clear, and the city needs to begin the hard work of fixing them. The problems of urban ghettos that send more kids to prison than to college are also clear, though unfortunately harder to solve. But solutions will not get easier if we embrace rioting as the voice of the oppressed.
Obviously, the Gray arrest was botched. It’s tragic. Yet, the pursuit of justice seems to be off to a sloppy start, which is equally tragic. For the issues that plagues Baltimore–poverty, crime, education, and police-community relations, amongst other things–will continue fester since we apparently can’t even get a clean run at simple due process. I hope to be proven wrong.
Over at the American Interest, Walter Russell Mead wrote about how Baltimore is a textbook example of “blue model failure.” Democrats, who haven’t improved the standard of living for its residents in decades, have dominated the city. Moreover, the party’s penchant for supporting public sector unions serves as a double-edged sword in these situations:
Baltimore has had Democratic mayors and Maryland Democratic governors for years, and very little progress has been made. Martin O’Malley, the only alternative to Hillary Clinton on offer by the Democrats, was mayor of Baltimore from 1999-2007 before being elected governor of Maryland.
We don’t know everything about what happened to Gray or how the officers behaved yet, but his death is a reminder of a notable fissure in liberal thinking. The Democrats are the party that celebrates big government and public sector unions. But sometimes government exerts excessive force—as when it crushes a man’s spinal cord. A party that pledges to serve the poor and the weak, while granting the strongest possible protections to those who exert power over them, is going to wind up on both sides of a conflict between the two.
Last note: Legal Insurrection's post on Gray's knife.