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Kim Davis Needs to do Her Job or Resign

Tuesday, September 15th, 2015

KimDavisClerkThere are times when our conscious or moral beliefs may interfere with our jobs. When I prosecuted crimes in Baltimore as an Assistant State’s Attorney, I was opposed to the death penalty.  I still oppose the death penalty.  At that time, there was no moratorium on the death penalty in Maryland.  And there were a few death penalty cases. Fortunately, I never had to make a decision over my conscious or my job.  If it came down to me having to choose, I would have asked to be removed from the felony unit where death penalty trials occur to another unit within the office.


However, I was not the State’s Attorney for Baltimore City—the chief prosecutor.  If I had been my boss over the entire office, I would have no choice except to try a case that warranted under the law—the death penalty or step down from my elected position.


Kim Davis, the Kentucky Rowan County court clerk who refuses to provide marriage certificates for same sex couples took an oath to do her job under the law.  The law of the land announced by the U.S. Supreme Court affords marriage equality and marriage licenses for all, including same sex couples.  And her job as the Chief Clerk of Rowan County elected by the voters demands that she do her job—despite what her religious preference, reasons or conscious dictates.


Many people have held religious, conscious or other beliefs that are counter to the law.  Acting out on those beliefs in contravention of the law is a problem—a criminal one. During the Civil Rights movement, President Johnson signed into law the Civil Rights Act of 1964 which forbid discrimination in the hiring, firing and promotion on the basis of race. The Voting Rights Act of 1965 was passed to prohibit race discrimination in the right to vote that was afforded blacks in 1870.


After the passing of many civil rights laws, individuals still attempted to deny the rights to blacks afforded by the law.   In 1963 Alabama Governor George Wallace stood on the steps of the University of Alabama attempting to forbid two black students from entering to enter. His cry was the same as Kim Davis.  He cried segregation now and segregation forever to preclude integration affording civil rights to include African Americans.  Kim Davis cries for the same reason.  She cites her conscious in the same way that George Wallace did.  To Wallace, prohibiting blacks from entering Alabama institutions and affording them civil rights was a moral one.  He was wrong.  Kim Davis is also wrong.


When one’s morality is against the law, it demands that choices be made.  The choice for Kim Davis is to give up her Clerk of the Court position.  The choice is not for her to remove her name off of the marriage licenses of the same sex couples—as her office did at her request.  In doing so, she is trying to circumvent the law.


The case should be brought back before the federal court for clarity.  This time, the federal court should clearly advise that the Rowan County clerk’s office is in contempt for its refusal to provide the same marriage licenses afforded to all couples with the name of the Clerk of the Court who presides over the Clerk’s office.


The law does not need to change for Kim Davis.  Kim Davis in her elected position as Clerk of Rowan County needs to change for the law. The law should not bend to suit the conscious of Kim Davis.



Washington, DC based Debbie Hines is a trial lawyer and former prosecutor.

Here’s Why the Freddie Gray Case will Stay in Baltimore

Thursday, September 10th, 2015
Baltimore Circuit Court House via Flickr by Kirsch

Baltimore Circuit Court House via Flickr by Kirsch

After reading hundreds of pages filed by both sides and hearing oral arguments by the attorneys on whether to remove the trial of the 6 officers charged in the death of Freddie Gray, Judge Barry Williams on September 10, 2015 declined to remove the trial to another location. The police officers argued that pretrial publicity made it virtually impossible for the officers to receive a fair trial in Baltimore.


Most of the defense arguments by attorney Ivan Bates, who argued for all 6 officers, rested on speculation on what potential jurors feel about the case from media.  Judge Williams addressed all of the issues involved including the comments made by the prosecutor in bringing charges, comments by the Mayor and former Police Commissioner Anthony Batts, the riots, curfew, settlement of the civil case and leaks in the media about the case.


A fair trial is paramount to our criminal justice system.  It is also important as Judge Williams referenced that these defendants have a right to also be tried in the jurisdiction where the alleged offense occurred.  In terms of publicity, Judge Williams noted that there is no county that has not heard about the Freddie Gray case via news through print media, on air or on the Internet.  Media coverage has been worldwide.  Coincidentally one of the officers, William Porter, recently gave an interview to the Washington Post.


Two cases cited by the prosecution show that the trend of moving cases out of jurisdictions due to pretrial publicity and effect on residents is changing in the 21st century.  The Boston Bomber case of Dzhokhar Tsarnaev and the Sniper case were tried in the jurisdiction where the offense occurred.  In the  case of John Allen Muhammad, known as the Sniper case held in Montgomery County, Maryland, most Montgomery County residents were concerned about being the target of a sniper attack while outdoors for the 22 days of the Sniper’s random killing spree.   And the city of Boston and surrounding areas were on lockdown before locating the Boston Bomber.


In determining the issues of a fair trial, the key element is not whether potential jurors know about the case from the media.  The crucial element is whether 12 fair and impartial jurors can hear and decide the cases based solely on the evidence heard in the court room.  The defense vigorously argued the settlement of the civil case for Mr. Gray’s family would ensure the potential jurors assessed fault to the officers. The fact that a civil settlement occurred had no bearing on the Charlotte, NC case involving Jonathan Ferrell who was shot 10 times by an officer, while asking for help.  The jury was unable to reach a verdict despite knowledge of the settlement. The jurors leaned towards acquittal. The defense made 4 prior requests for removal to another county before the trial started.  The same might occur in Baltimore.


Baltimore has over 600,000 residents.  It will take 12 fair and impartial jurors for each of the 6 trials. Judge Williams repeatedly stated that the citizens of Baltimore are not “monolithic”.  They can think for themselves. Most of the issues addressed on removal can be discussed with each individual potential juror by Judge Williams during jury selection to make sure a fair and impartial jury is seated.


In essence, the defense had the burden to prove that it would be impossible to find 12 fair jurors out of 600,000 Baltimore residents.  That is an insurmountable task. As prosecutor Michael Schatzow, the chief deputy of the Baltimore State’s Attorney’s Office argued, the thought that 12 fair minded people cannot be found in Baltimore to hear the case is insulting to the citizens of the City of Baltimore.  All citizens of Baltimore do not all think alike.


At the end of the day, there is a presumption of fairness unless the defense can prove to the contrary.  Judge Williams ruled on the basis of Maryland law and the state Constitution that there is no need to pick up and go somewhere else to try the case.


The trial starts October 13.  The date may be changed.


Washington, DC based Debbie Hines is a trial lawyer and former  Baltimore prosecutor.

Freddie Gray Settlement Speaks Volumes about Baltimore

Wednesday, September 9th, 2015
Credit: Murphy, Falcon and Murphy

Credit: Murphy, Falcon and Murphy

The $6.4 million settlement of the Freddie Gray civil case raises many eyebrows and questions for the City of Baltimore. Some question why the City settled the case, the amount of the settlement and the timing of the settlement—one month before the trial of six police officers accused in the death of Freddie Gray starts. Many question whether the City should have waited until the conclusion of all 6 trials of the officers before entertaining a settlement. William H. Murphy, Jr., the family’s attorney, had not filed a lawsuit. Those who argue the amount of the settlement question whether the value of Freddie Gray’s life and death warranted a high 7 figure settlement. Gray lived in the Sandtown area of West Baltimore—an area plighted with high poverty, high unemployment, high drug use and other socio-economic ailments. And some legal scholars wonder whether the timing of the settlement will affect Baltimore’s ability to keep the police officers’ trials in Baltimore. I question the settlement for other reasons.


All of the facts are not known about the Freddie Gray case. What is apparently known is that Baltimore police placed 25 year old Freddie Gray in a police van face down without any restraints. Gray was found unconscious 45 minutes later. He died one week later in a hospital from severe spinal injuries. The Baltimore Medical Examiner ruled his death a homicide.

Various factors go into reaching a settlement in a case. Former Police Officer Anthony Batts stated in April that police broke protocol by refusing to restrain Gray in the van. Past similar incidents might also have factored into the civil case. Some in Baltimore refer to a police practice of placing arrestees without restraint and taking them on a “rough ride”. The Gray’s attorney would likely file the case in federal court for civil rights violations of Freddie Gray. In federal court for civil rights violations, no limitations on the amount of damages exists against a municipality and its employees.

Undeniably the settlement may have an effect on the criminal trial of the officers. Ultimately, the decision on whether the impact of the settlement and prior publicity will affect the police officers’ rights to a fair trial rests with Judge Barry Williams. A hearing on the Defendants’ motions to change the venue will be heard in Baltimore City Circuit Court on Thursday, September  10—one day after the City officials meet to approve the settlement.

I question the millions of dollars being spent to settle police brutality cases for other reasons. The millions of dollars spent on settling police excessive force cases do not appear to have any effect on the police department. And yet, the money could go to other uses—starting with training police officers on racial bias and excessive force. However, as long as officers commit violations of the law, there will be settlements. The City of Baltimore’s readiness to settle police brutality cases rather than address the problem of police excessive force lies at the heart of the matter. The real problem lies in how to avoid another Freddie Gray being the subject of police brutality and receiving a settlement. Without police brutality and excessive force, there would be no need for large settlements.

Settlements of police brutality cases do not deter future police brutality cases. These cases do not financially hurt the police officers, the police department or its union. The monies come out of the City of Baltimore funds fueled by taxpayers.

In a city of over 600,000 residents where approximately 25% live below the poverty level, millions of dollars could go a long way towards helping the citizens, like the Freddie Grays of West Baltimore. In a city of high unemployment, high drug use and high crime, monies are needed to address the socio-economic issues facing the City.


The Department of Justice is looking into the practices of the Baltimore City Police Department to determine if a pattern and practice of excessive force and other violations exist. I urge the City of Baltimore, its Mayor, Interim Police Chief and other elected officials to move forward now on improving its police force with proper training of the officers on how to do their job without violating civil rights of their citizens. It is too late for Freddie Gray.

Washington, DC based Debbie Hines is a trial lawyer and former Baltimore prosecutor.

UPDATE:  On Thursday, September 10, Judge Barry Williams denied the 6 police officers’ motion to remove their trials from Baltimore due to prejudicial publicity and the civil settlement by the City of Baltimore. The cases will remain in Baltimore.


Rating the Legal Players in the Freddie Gray Case

Thursday, September 3rd, 2015


Baltimore Circuit Court House via Flickr by Kirsch

Baltimore Circuit Court House via Flickr by Kirsch

After watching the Freddie Gray case all day in court on September 2 as a legal eagle or legal geek, whichever you prefer, I came to my opinions about the main legal players involved. The presiding trial judge is Judge Barry Williams. A trial lawyer –defense or prosecution could not ask for a better and well qualified trial judge. All judges are not created equal. And Judge Williams ranks heads above most judges for his intelligence, judicial temperament, sometimes wit and all times no nonsense approach.

And above all, Judge Williams is fair. He ruled against consolidation of the trial with all six police officers tried in one case with their different charges ranging from assault to murder.  Judge Williams ruled it would not be in the best interest of justice. He ruled on two motions in favor of the prosecution and denied one State’s motion. And he did not mince words to the lawyers. He pointedly mentioned to the defense that some of their motions lacked a paucity of any evidence. In addressing other defense motions, he said their tone was condescending when defense implied there would be a conflict due to State’s Attorney Mosby’s marriage to Nick Mosby—a City Councilman. I can’t wait to see more of his judicial temperament and rulings. And I will get my chance on September 10, when the motion to move the cases out of Baltimore is argued.

On the prosecution side, Chief Deputy State’s Attorney Michael Schatzow who appears and should be the lead attorney for the prosecutors is tenacious, well prepared and eloquent in his presentation of the state’s case. The prosecution’s team is lucky to have him. He argued two motions. He is a pit-bull of an attorney who unabashedly fought for his position.

On the other side of the prosecution team is Deputy State’s Attorney Janice Bledsoe who argued the motion on consolidation of the trial. Bledsoe could take some pointers and teaching from her colleague, Schatzow. While vigorously arguing her points, she showed an edge that sometimes bordered on condescending with the judge. Her comments to the judge such as “Are we good?” and “okay?” in tone implied that Judge Williams needed to catch up to her—when she was the one who was confusing at times. There is a deference that judges are accorded. At times, her tone fell below that threshold. I sat with another female trial lawyer who also commented on Bledsoe’s demeanor.

On the defense side was Catherine Flynn—a well-known and respected defense trial lawyer, Andrew Graham and others representing the 6 police officers. Flynn was eloquent in her approach and demeanor. State’s Attorney Marilyn Mosby was present in the court room. She did not speak on behalf of the state. Yet, her presence was felt as she walked into the court room to sit with her lawyers.

It was interesting to see in a sea of many lawyers on both sides—that only one woman trial lawyer was present on each side. More women are needed in the court room. When all the lawyers were called up to the bench, we saw the more than 12 lawyers stand up. The court room still lacks women despite more women attending law school.

Overall on the defense side, the other lawyers representing the police officers were well prepared and well-spoken in arguing their respective clients.

Motions hearings will continue on September 10. The parties will argue the motion to change the venue. Judging by the earlier rulings, it seems likely the case will remain in Baltimore—for now. And the trial is scheduled to start on October 17—for now.

Washington, DC based Debbie Hines is a trial lawyer, legal analyst and former Baltimore prosecutor.


Baltimore Freddie Gray Case Needs Justice and Peace

Tuesday, September 1st, 2015
Marilyn Mosby-  Official Photo as State's Attorney

Marilyn Mosby- Official Photo as State’s Attorney

On September 2, all eyes will once again be on my hometown of Baltimore as the case of six police officers charged with the death of Freddie Gray goes to court for pre-trial motions. The outcome of the hearings will likely determine the trial location, type of trial and whether a trial will even occur.  As a former prosecutor from the same office trying the case against the officers, my heart is with the prosecutors.  As a trial lawyer, my head tells me the prosecutors have a difficult case.

Freddie Gray died from spinal injuries a week after being arrested and found lying unconscious in a police van on April 12. His death caused demonstrations in Baltimore and other cities to protest police violence against unarmed persons.  During Baltimore’s protests, police arrested over 200 persons and the Mayor imposed a curfew following a state of emergency. Peace returned to Baltimore when State’s Attorney Marilyn Mosby announced charges against the six officers on May 1.

Ironically, the manner in which Marilyn Mosby announced charges is at the center of one of the defense motions. Defendants seek to recuse State’s Attorney Mosby and her office from prosecuting the case, due in part, to her May 1 press conference.  Mosby, a public elected official from a family of police officers, ran on a campaign vow to prosecute police misconduct. After her office independently led an investigation, separate from the police department, she found probable cause to charge the officers. Her announcement surprised the City of Baltimore and shocked the Baltimore Police Department. Shortly thereafter, the police filed motions to remove her from the case.

A pivotal motion seeks to change venue and move the trial from Baltimore. In many recent high profile cases, judges denied defense requests for change of venue – as in Dzhokhar Tsarnaev’s case (“The Boston Marathon Bomber”). His trial took place near where the bombs exploded during the Boston marathon which killed 3 people, wounded almost 300  and caused a lock down of the Boston area. A judge denied change of venue in the James Holmes trial, the Aurora, Colorado theater shooter, who killed 12 people during a midnight movie showing.  And a Charlotte, NC judge denied removal in the recent case involving a police officer who shot and killed unarmed Jonathan Ferrell. It ended in a mistrial.

The court’s decision rests on whether the defendants will receive a fair trial in Baltimore—not whether potential jurors know about the case. In a city of over 600,000 residents, the court must determine whether it will likely find 12 fair and impartial jurors, who will decide the case based on the evidence—and not on their impressions from substantial pre-trial publicity.

In no other recent Baltimore case has the change of venue been so intricately linked to the city in more ways than just a legal determination.  Much of Baltimore will be waiting for the outcome while holding their collective breath—not wanting a repeat of the April riots. And yet, legal decisions cannot rest on what might happen in the City of Baltimore.

Defendant’s motion to dismiss the case is not likely to occur—at least not during pre-trial.  Yet, the prosecution will have difficulty proving the second degree depraved heart murder charge based on acts of omissions by Officer Caesar Goodson at trial.  Five defendants seek separate trials instead of one trial for all 6.  Judge Barry Williams must weigh the defendants’ concerns against the interests of judicial economy—to save time and try in one trial.

All eyes will focus on Baltimore to see how the city reacts. All ears should focus on the words of State’s Attorney Marilyn Mosby. Mosby urged the people of Baltimore to hear her cry for peace as she works to deliver justice to the case of Freddie Gray.

Many people want justice for Freddie Gray. I understand. I want everyone to understand that peaceful protests matter—no matter what a judge decides.

Washington, DC based Debbie Hines is a trial lawyer, legal analyst  and former Baltimore prosecutor.