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Are the Baltimore Police Officer Cases Going Down a Dark Hole?

Friday, February 5th, 2016
Marilyn Mosby- Official Photo as State's Attorney

Marilyn Mosby- Official Photo as State’s Attorney

On February 4, Baltimore prosecutors appealed Judge Barry Williams’ decision that William Porter cannot be compelled to testify in the upcoming trial of officer Edward Nero charged with misdemeanor assault of Freddie Gray.  For those who are not keeping score, 6 officers are charged.  Three officers, William Porter, Caesar Goodson, Jr. and Alicia White are primarily charged with manslaughter with the van driver, Goodson being also charged for second degree murder.  Porter’s case ended in a hung jury. Three arresting officers, including Edward Nero, William Garrett and Lt. Brian Rice are charged with misdemeanor assault, misconduct in office and other misdemeanors.

 

Nero’s case was set to begin February 22 until the State decided to appeal Judge Williams’ ruling.  Goodson and White’s trials are already on hold pending an appeal decision.  Defense attorneys appealed Williams’ ruling in those two cases.

 

The trial against William Porter ended in a hung jury in December. And the State offered Porter limited immunity to testify against Goodson whose case was scheduled for January.  Porter’s case was rescheduled for June, 2016. Judge Williams ordered that Porter must testify in the State’s case against Goodson and White.  And defense lawyers for Porter appealed.  Those appeal arguments will be heard in March, 2016 before the Court of Special Appeals.

 

The next cases up for trial were those of the three arresting officers, Edward Nero on February 22, and Lt. Brian Rice and Garrett Miller in early March. The prosecution, in what is likely perceived as a delay tactic, now says for the first time that William Porter’s testimony will be needed in Nero’s case.  Porter doesn’t even arrive until after the three officers arrested Gray.  Judge Williams denied the State’s request to compel Porter to testify in Nero’s case which prompted the prosecutors to appeal.  I could be wrong but it looks like a delay tactic in Nero’s case so the appeals court can rule on the decision in Goodson’s case.

 

There does not appear to be any good reason to delay the trials of Nero, Rice or Miller.  Originally, the State sought to try the 6 officer cases in the order with the three manslaughter/2nd degree murder cases being tried first and then the three misdemeanor assault cases tried last.  The mistrial of Porter threw a monkey wrench in that order.  Now the State appears to be trying to buy time to get the cases back on track again.

 

While no lawyer would have foreseen a mistrial, one did occur.  Mistrials are highly rare.  But with the next officer cases scheduled for trial, the State should have tried them.  Sometimes you need to work with the hand you’re given. A delay is never helpful to the prosecution.  Maybe the State doesn’t want to try Nero next because his case is a weak one.

 

The strengths of the cases against Nero, Garrett and Miller are questionable at best.   Charging an officer with a second degree assault, a misdemeanor, differs from charging a regular citizen.  Police are given latitude to use some measure of force in effecting an arrest.  While the videos do show Freddie Gray crying out in pain and witnesses excitedly uttering that Gray was injured, it does not necessarily amount to a second degree assault charge against the officers.  The officers will undoubtedly allege that they used reasonable force to effectuate the arrest of Gray. And officers are judged by what is a reasonable standard for a police officer under the circumstances.

 

 

From a strategical point of view, the delays now caused by the State  in the case of Nero  and perhaps Miller and Rice appear to show weakness in the three misdemeanor assault cases.  If a case is good and has merit, it should not matter what order the cases are tried in.  And if William Porter was an essential witness in getting a conviction in the other 5 officer cases, then he should have been offered full and complete immunity to testify in exchange for no charges brought against him. The cases of Nero, Miller and Garrett should be tried without delay.  These three trial  delays are likely due to strategy and  not substance.

 

Washington, DC based Debbie Hines is a trial lawyer, legal/political analyst and former Baltimore prosecutor.  She often appears in the media as a legal analyst on Al Jazeera America, BET, CBS, C-Span, Fox 5 DC, Sky News and MSNBC.  Her op ed’s appear in the Washington Post, Huffington Post, Baltimore Sun and Baltimore Afro American.

Hope and Change Still Reign in 2016

Tuesday, January 26th, 2016

ObamaElectionPresident Obama won the 2008 Democratic Presidential nomination and the Presidency on his message of hope and change.  He did not win as the most experienced candidate, as a one term Illinois Senator. He did not win on his then youthful looks.  And he certainly did not win the Democratic primary on his name recognition of Barack Hussein Obama over Hillary Rodham Clinton. In 2008 as we are seeing in 2016, name recognition, looks or experience matter less than hope and change for a better America.

 

Senator Bernie Sanders looks like he could have played alongside Jack Lemmon in the movie Grumpy Old Men.  Hillary Clinton looks poised to meet with world leaders or enter the Blue Room of the White House at any time. This year, looks are not what matters to voters. If looks mattered, GOP contender Donald Trump would be last in polls and Senators Ted Cruz and Marco Rubio would be in a tie for first place.

 

Looking at the political landscape at this time last year, it appeared that the two highest names recognized, Hillary Clinton and Jeb Bush, would be in a face-off for November, 2016. While anything is possible, it does not seem likely that the two will be squared off in November.

 

Many Americans are struggling whether trying to put their children through college or putting food on their dinner table. Most Americans live from paycheck to paycheck, assuming they have a paycheck.  Despite vast improvements under the Obama administration, the economic picture is not coming up roses for everyone. Unemployment of African Americans is nearly double that of the national average at 9.1 percent in July, 2015 while the national average was 4.6%.  Latino unemployment stood at 6.5%. And many working Americans, who faced the 2008 downturn and lay-offs, returned to lesser paying jobs. Some lost all of their savings while searching for their present jobs.

 

The Affordable Care Act (“ACA”) enables millions of Americans to receive health insurance. Many Americans, while insured, still cannot afford health care due to high deductibles. For those individuals who do not qualify for the subsidy and must pay their own health insurance, the insurance rates are not what everyone views as affordable.

 

For many reasons, the hope and change movement that President Obama ushered in 2008 still resonates with voters, albeit in different ways. Some Millennials who once followed President Obama or were too young to vote for him in 2008, now stand with 74 year old Bernie Sanders. They are hopeful for a better future. Many Independents stand with Bernie Sanders because they want change in our political system.  And Donald Trump resonates with those Republicans who hope to “make America great again.”

 

This year just like 2008, authenticity matters.  Just as President Obama spoke of his mother and maternal grandparents in 2008, Bernie Sanders was able to come across the same way during the Iowa debate on January 25. He spoke of his father who came  to America as a Polish immigrant with no money and died years later with little money. While these things matter less to politicians and policy wonks, many average voters want to see someone who might understand their issues.  It’s difficult for Hillary Clinton to appear authentic as her life’s story has already been watched like an open book. Hillary Clinton comes across as a former Secretary of State ready to be Commander-in-Chief on day one. And from her point of view and a logical one, that should be enough, except if 2016 is 2008 revisited.

 

In 2016, Americans still have hope. And Americans still want change.  And whichever candidate appeals to voters that he or she can change the system to improve life for every man and woman will win.

 

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

Supreme Court Reconsiders Juveniles with Life Without Parole

Monday, January 25th, 2016

supcourt_buildingOn Monday, while everyone in the DC Metropolitan area was still digging out snow, the Supreme Court released an opinion stating that juveniles under the age of 18 who were sentenced to life without parole before 2012 may apply to courts to reconsider their sentences.  In 2005, the Supreme Court ruled that juveniles could not be given the death penalty. Again, in 2012, the High Court prohibited sentences of life without the possibility of parole for juveniles. In doing so however, it did not make the ruling retroactive to those who had already been sentenced.

 

Henry Montgomery, the petitioner, is now 69 years of age and sentenced to life without parole for murder of a law enforcement officer he committed when he was 17.  The Supreme Court ruled with Justice Kennedy writing the opinion stated, “Allowing those offenders to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity — and who have since matured — will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment”.  Justice Anthony Kennedy wrote for the court’s 6-3 majority.  The usual dissenters were Justices Anthony Scalia, Clarence Thomas joined by Justice Samuel Alito.

 

Unfortunately, the Supreme Court, when it prohibited life without the possibility of parole for juveniles, did not apply it retroactively. Thus, those who are now serving sentences without parole convicted before 2012, such as approximately 1500 prisoners, must apply to have their sentences reduced and show their entitlement to life with the possibility of parole.  It does not mean, if granted, that they will be paroled—only eligible for parole.

 

The case of one of the most infamous juveniles serving life without parole is Lee Boyd Malvo. Malvo, one of the DC Sniper killers, is eligible under the Supreme Court’s ruling.  Malvo is now 30 but was 17 when the killing spree with John Allen Muhammad occurred in 2002. Malvo along with Muhammad went on a killing spree for three weeks in 2002 in the District of Columbia, Maryland and Virginia, killing 10 people and seriously injuring three survivors.  He went on trial and received multiple life sentences without the possibility of parole in Maryland and Virginia.  While Malvo is one of those eligible under the new ruling, it is highly unlikely that due to the nature of his case, multiple killings and heinous premeditated multiple crimes that either a Maryland or Virginia court would convert his life sentences without parole to eligibility for parole—any time soon.

 

For many others who committed crimes as juveniles and who have served long sentences without the possibility of parole, the Supreme Court’s decision is a glimmer of hope. And for those like Petitioner, Henry Montgomery, who served substantial periods of time and have matured, it should be a way towards parole.

 

Of those serving life sentences without parole committed while juveniles, today’s Court ruling is a road towards freedom with no guarantees.  It is not a guarantee that they will be freed.  And even if a court grants them life with the possibility for parole, it does not guarantee  their parole.

 

Debbie Hines

Debbie Hines

Washington, DC based Debbie Hines is a trial lawyer, member of the Supreme Court and former prosecutor. Her writings appear in the Washington Post, Huffington Post, Baltimore Sun and  Baltimore Sun. She frequently appears on Al Jazeera America, BET, CBS, C-Span, MSNBC and Fox 5 DC as a legal analyst.

 

Deal Struck on Bill Cosby Case May Warrant Dismissal

Saturday, January 23rd, 2016
World Affairs Council- Creative Commons License

World Affairs Council- Creative Commons License

Just as  a judge dismissed the civil case for defamation against Bill Cosby last month, his criminal case may  go up in smoke before it barely gets started.  Over 50 women alleged Cosby engage in sexual misconduct, assault and/or rapes against them over the course of 40 years.  In a civil case for defamation, one of those women, Renita Hill, alleged that Cosby, his wife and attorneys made false statements about her in the media.  A Pennsylvania judge found no merit  to her case and dismissed it.

And now a  hearing scheduled  on Cosby’s  criminal case began February 2, 2016 before a Montgomery County judge in Pennsylvania on the issue of whether the District Attorney’s office violated an alleged 2005 agreement by the prior District Attorney, Bruce Castor, Jr.,  to refrain from charging Cosby in Constand’s case in exchange for his testimony in her civil case.  In the criminal case, Cosby’s lawyers have a good chance of having the only criminal case filed against Cosby dismissed, if the judge believes Castor.

 

Prosecutors charged Cosby in December with an aggravated indecent exposure charge involving a 2004 incident with Andrea Constand.  Shortly following the 2004  incident, Constand filed a civil law suit which ultimately settled.  Her lawyers wanted to depose Cosby in 2005.  And an alleged agreement was entered involving the previous Montgomery County Pennsylvania District Attorney that the Cosby deposition and any of his statements contained would not be used against him and  further he would not be charged for the incident—as an inducement for him to testify in the civil case.  That is crucial because the victim cannot remember all  of the details of what happened as she was allegedly drugged.

 

If the judge finds that there existed an agreement and upholds the prior agreement, the case should be dismissed.  A newly elected prosecutor cannot void any previous agreements entered into by his office. The issue will be whether there was an agreement.  And if the agreement did exist, it means the charges brought against Cosby were filed without merit and in violation of an agreement.

 

In a twist of fate, former District Attorney Bruce Castor, Jr. testified on behalf of the defense to support Cosby’s viewpoint.  The judge placed on hold a preliminary hearing pending the outcome on the issue. Present prosecutors pursuing charges against Cosby worked for Castor and do not recall the agreement or seeing any written documentation.

 

Now for the bad news for Mr. Cosby, there has been no smoking gun.  There isn’t a written agreement–just the memory of the former District Attorney who happenstance lost his job to the present District Attorney prosecuting Mr. Cosby. And the former civil attorney who represented Cosby in the civil case is deceased. So much hinges on the credibility of Bruce Castor and his recollection of the events.   And Castor does not seem to indicate there was ever a written agreement. Lawyers routinely document important agreements in writing–as well as unimportant agreements. And if Mr. Cosby’s presumably high paid lawyers allowed him to testify in a civil case in 2005 without a written agreement and only word of mouth, that’s highly questionable at best.

While an accused bears no burden of proof in a criminal trial,  the defense bears the burden of convincing a judge in the motions hearing to dismiss the case.  A decision is expected shortly.  However, based on the testimony with no written documentation, the criminal case will likely continue to proceed.

Even if Cosby eludes prosecution, he will still be deemed guilty in the court of public prosecution.

Update:  This post was updated to reflect the current hearing taking place.  Judge O’Neil refuses to dismiss case. Case now moves to preliminary hearing on March 8, 2016.

Washington, DC based Debbie Hines is a trial lawyer, legal and political analyst and former prosecutor.  She can be seen frequently in the media on Al Jazeera America, CBS News,  C-Span, MSNBC, BET, PBS among others.  Her Op Ed’s appear in the Washington Post, Huffington Post, Baltimore Sun and Baltimore Afro American. She is a native of Baltimore.

 

Martin Luther King, Jr. Holiday 2016 Style

Monday, January 18th, 2016

MLKMonumentToday marks the 30th anniversary of the Martin Luther King, Jr. federal holiday.  Many often think of Martin Luther King Day as a time to reflect on the past.  Video clips of Dr. King’s speeches, marches and life are shown while parades and prayer breakfasts are held.  The holiday is often viewed as a day for service. When I reflect on Dr. King’s holiday, I see it as a time to go back to the future.  I see it as a day to recommit, rededicate and reclaim the dream of Dr. King for the future.  I see it as a time to work tirelessly towards achieving Dr. King’s dream of social justice, economic justice, racial equality and human rights for all.

 

As we watch the 2016 presidential campaigns, we are reminded almost every day by the comments of the Republican political candidates that we must continue to fight for the realization and actualization of Dr. King’s dream.  When I read comments of U.S. Supreme Court Justice Scalia that African Americans are inferior intellectually, I know we have a long way to go to achieve equality in this country. We cannot sit idly by as persons in the U. S., particularly those in power and those seeking the highest office in the U.S. spew hatred towards Muslims, Hispanics, Blacks and the less fortunate.   There is plenty of opportunity to continue the fight for Dr. King’s dream.  And working on it one day every year will not get the results.

 

We cannot change our ugly past of racial hatred. We can work towards ensuring that the gains achieved by the Civil Rights Movement through Dr. King’s legacy are not turned backwards.  And we must work to increase those gains. We must all commit to work every day towards making this country a land where we all can proudly say  “ My country ‘tis of thee, sweet land of liberty…From every mountain side, let freedom ring.”

In the words of Dr. Martin Luther King, “our lives become to end the day we become silent about things that matter. And there comes a time when one must take a position that is neither safe, nor politic, nor popular; but one must take it because it is right.”

We must all take a position to end the ills in this country and advance the dream closer to reality. And we must take a position every day.

 

Happy Birthday Dr. King!

Why I like Bill Cosby’s Criminal Defense Lawyer

Thursday, January 14th, 2016

Bill Cosby’s next criminal court date in his sexual assault case is February 2 in a Montgomery County Court in Pennsylvania. The preliminary hearing originally scheduled on January 14 was postponed until February 2.  It is now indefinitely postponed. In its place, Cosby lawyer Monique Pressley’s Motion to Dismiss the Case as improperly charged and Motion to Recuse the Montgomery County Prosecutors will be heard. Pressley argues a previous agreement with the  prior prosecutor stated Cosby would never be charged.  The  prosecution case may be in for an uphill battle

Montgomery County, Pennsylvania prosecutors charged Bill Cosby, longtime TV Dad, with aggravated indecent assault without consent, aggravated indecent assault while complainant is unconscious or unaware and aggravated indecent assault while person impairs complainant. The incidents allegedly occurred on January 15, 2004 at Mr. Cosby’s Philadelphia suburban home against former Temple University employee, Andrea Constand.

From what I have seen  and read about Monique Pressley, she is an intelligent, aggressive and tenacious attorney who will mount a zealous defense on behalf of her client.  Having previously worked in the District of Columbia’s Federal Pubic Defender’s Office, she is skilled at handling criminal defense cases. And from all accounts that I have seen, she is doing a phenomenal job speaking on behalf of her client, asserting his right of innocence under the law—despite what the court of public opinion holds.

Often times, people will ask defense lawyers if they believe their client is innocent or guilty. Our beliefs of guilt or innocence as attorneys do not matter. The willingness of passionate defense attorneys to mount a zealous defense, as Ms. Pressley appears to be doing, is what matters.

No case is ever a slam dunk—despite what the public views as one. And sexual assault cases are among the hardest cases to prove and obtain a conviction. That is often because unfortunately the victim is the one who appears on trial too. The victim’s statements, inconsistencies, character, prior acts are all scrutinized for her credibility in the present case.

A judge will ultimately make the decision on whether other victims may testify. Other victims may testify in a case where there is a common scheme or plan known as “modus operandi”. Since over 50 other victims allege similar sexual acts and patterns occurred to them is one reason for some of the other victims to testify. But on the other side of the coin, a judge must decide if any of the other similar alleged acts are too prejudicial for a jury to hear. I am sure that Pressley will fiercely advocate why prosecutors cannot bootstrap Constand’s case with the other victims and the jury must weigh Cosby’s case solely on the instant charges.

Having a woman and particularly an African American woman is an added bonus in Cosby’s defense. Pressley will be able to cross examine on the charges without turning off potential women jurors. And having an African American female attorney standing beside Cosby, in the fight of his life, will subtly send a message and possibly raise doubts to what might be any African American jurors. Pressley’s fierceness in defending Cosby shines through.  And through her efforts, the case against Bill Cosby may never reach a jury.

Lawyers are required to zealously represent their clients. Ms. Pressley is more than meeting that requirement. Regardless of what I may think about Mr. Cosby’s guilt or innocence, he made the right choice in selecting Monique Pressley as his attorney.

Washington, DC based Debbie Hines is a trial lawyer, legal analyst and former prosecutor. When she is not representing and defending clients in court, she can be seen on air on Al Jazeera America, BET, CBS News, Fox 5 DC, MSNBC and other outlets. Her writings appear in the Huffington Post, Washington Post, Baltimore Sun and Baltimore Afro American. She is a native of Baltimore.