After Freddie Gray cases, little in black and white

Using neutral investigators could help reassure a distrustful public

By Heather Cobun
BridgeTower Media Newswires

BALTIMORE, MD — Reforming the criminal justice system remains a thorny topic in Baltimore nearly five months after all charges were dropped against the six officers charged in connection with the death of Freddie Gray. But legal observers of the trials agree faith in the system as a whole needs to be restored.

From harsh defense criticisms of Baltimore City State’s Attorney Marilyn Mosby’s motives — which attorneys were admonished from the bench to tone down — to the breakdown of the relationship between prosecutors and police playing out in open court, the trials were sensational but offered few answers to the questions of what happened to Gray and who, if anyone, should be held criminally responsible.

Officer William Porter’s trial ended with a hung jury in December 2015. Officer Edward Nero, who participated in the arrest and faced misdemeanor charges, proceeded without a jury and was acquitted by a judge in May. A judge also acquitted van driver Officer Caesar Goodson, who faced second-degree murder charges, and supervising officer Lt. Brian Rice. The cases against Sgt. Alicia White and Officer Garrett Miller never made it to trial
The final lesson from the trials, according to University of Baltimore School of Law professor David Jaros, may be more about Baltimore’s capacity to deal with certain problems locally when they become politicized as Gray’s death did.

“We can all agree to disagree over the outcome of the cases but perhaps agree that we don’t trust how the cases were resolved,” Jaros said. “There remain clouds of distrust over both whether or not the police were really diligently investigating their own and pursuing all the legal theories of liability and questions of whether the prosecution was ignoring evidence of innocence.”

A consent decree between the city, police and Justice Department is still being reviewed but may address reforms to internal investigations.

Future cases

With an overall distrust in how the system worked in these cases, using neutral investigators could go a long way toward reassuring the public in the future, said criminal defense attorney Warren S. Alperstein.
“I think there’s something to be said that outside law enforcement agencies should lead the investigations where police are alleged to have caused a citizen’s death,” said Alperstein, of Alperstein & Diener P.A. in Baltimore. “There’s no doubt it would alleviate any appearance of police investigators favoring their own.”

Jaros said the current system does not provide those reassurances.

“I think the larger question on both sides is look, the public needs to have faith that when the police commit crimes, that they’ll be investigated fully and they’ll be prosecuted just like any other [people charged with] criminal activity,” he said.

Mosby proposed in October a slate of reforms for police misconduct cases, from including a prosecutor, Civilian Review Board member and Maryland State Police investigator in lethal force investigations to giving prosecutors and judges a role in the defendant’s selection of a bench trial.

Mosby’s office did not respond to several requests for comment.

The wrong takeaway from the trials is that defendants should not have the unilateral right to waive a jury trial, according to Jaros.

“These cases where there was so much press and public pressure after uprising are examples of why defendants should have this right,” he said.

Former federal prosecutor Steven H. Levin said another option to restore credibility in the prosecution of law enforcement officers is creating some kind of independent board to review cases and make recommendations for charges.

“I think it should be official, I think it should be transparent,” he said, suggesting using lawyers with government service experience as well as private attorneys who specialize in dealing with law enforcement. “Anything that will help restore credibility in the system is worth considering.”

Fallout, lessons

The collateral consequences of the Gray cases include a strain on the relationship between police and prosecutors, according to Levin, of Levin & Curlett LLC in Baltimore.

“The relationship between the police department and the state’s attorney is harmed because you have a lack of trust between police officers and the leadership in that office,” he said.

Mosby and Police Commissioner Kevin Davis say any reports of distrust are overstated and the offices work fine together on a daily basis.

“I think that anyone who wants to cling to the notion that the state’s attorney’s office and the police department don’t work collaboratively should take a couple hours and pick a district court room and go into it, pick a circuit court room and go into it, and look at those police officers and detectives and assistant state’s attorneys who are working together every day to bring justice to families,” Davis said earlier this month.

During Goodson’s trial in June, however, Goodson’s lawyers alleged prosecutors acted improperly and refused to accept notes from the lead investigator containing potentially exculpatory evidence.

At her press conference in July following the dismissal of the remaining cases on the heels of three bench trial acquittals, Mosby accused individuals within the police department of obstructing her office’s work and trying to sabotage the cases.

To her critics, Mosby’s statements since the trials, which have been limited because she is facing civil lawsuits filed by five of the officers, show a lack of acceptance that there may have been missteps by her office.

“I think she’s still blaming the judge and the system,” said Levin. “Her comments don’t reflect that she’s learned anything.”

The ongoing civil litigation by five of the officers against Mosby alleges malicious prosecution, defamation and civil conspiracy. A federal judge has not yet ruled on whether Mosby’s prosecutorial immunity from suit for doing her job applies to the cases.

Alperstein said the civil cases raise the issue of how, if at all, Mosby should be held accountable for those remarks.

“While none of the officers were convicted, how do you pay back officers their reputation they may have lost?” he said. “I don’t think their reputation suffered among their colleagues in the police department because it’s very clear that they had the support among the police department but clearly they can’t walk freely through the streets of Baltimore City without fear of some retribution.”
 

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