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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.

Baltimore and D.C. – A Tale of Two Violent Cities

Monday, August 24th, 2015

 

police-chase_mediumI lived in West Baltimore until age 7 in the same block  on North Ave where unrest and rioting occurred after Freddie Gray was fatally wounded in a police van. During my time there, my parents warned me to stay away from the front windows for fear of stray bullets. After attending law school in Washington, D.C.,  I eventually moved to the District of Columbia where I currently reside. Despite being less than 40 miles apart, the two cities are as different as night and day except when it comes to the recent spike in violent crime.

 

Baltimore is mostly a blue collar city with almost one fourth of its residents living below the standard of living.  Washington with its federal government presence and large influx of millennials residing there bears little to no resemblance to Baltimore. Both cities like many others are experiencing increased spikes in crime not seen in many years—for reasons not clearly known. In Baltimore, the spike was thought to be due to several factors.  Former Police Commissioner Anthony Batts believed it was due to stolen drugs taken from a pharmacy raided during the unrest after Gray’s death. Batts was fired by Baltimore Mayor Stephanie Rawlings Blake citing his lack of knowledge of the city.

 

Community leaders and many residents living in areas affected by the outbreak in violence following Gray’s death determined the lack of police on the streets caused the increase in crime. Many residents believed police retaliated following the arrest of six officers for the death of Freddie Gray. Changing police chiefs did little to combat the violence. Baltimore’s violent crime rate in 2015 so far exceeds that of New York despite New York having 7 million more people.

 

In Washington, DC, no unrest or riots occurred.  D. C. Mayor Muriel Bowser, like Baltimore’s former police commissioner, stated the increase in crime was due to drugs—new synthetic ones on the street.  Others state no data exists to support her theory.  Unlike Baltimore’s former and present police chiefs, D.C. Police Chief Cathy Lanier rose through the police ranks and has served under three mayors. She is no novice to crime in the city.  Lanier blames illegal guns for the rise in violent crime. Rank and file police members state a change in deployment of police and disbanding of vice units by Lanier are to blame. Most criminologists are at a loss for the reasons.  D.C.’s 102 killings in 2015 almost equal all of those occurring last year. Baltimore logged in more than 200- so far this year.

 

 

Reported violent crime in the District of Columbia does not exclusively occur in lower income areas of the city.  In May, Daron Witt allegedly held captive three members of a prominent family plus their house keeper in a more affluent area of the city, later setting the house on fire and killing all four. In another incident, a woman posed as a man to meet a male lawyer for a sexual encounter in a downtown hotel—killing him.  And in the 102nd murder occurring in August, the victim died as a result of a stabbing at a neighborhood basketball game.

 

Baltimore and the District of Columbia are alike in that they want answers. What is clear is that a one size fits all approach will not stop the increased  violent crime rates in both cities. Any approach needs to include involvement of community leaders, residents, police, law enforcement officials, criminologists, sociologists, social workers, criminal defense lawyers and prosecutors for starters. The reasons for the increased violent crime rates may be as diverse as the number of violent crimes occurring.

 

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

How Police Get Away with Killing Unarmed Blacks

Saturday, August 22nd, 2015

GunI was sad to hear a mistrial declared in the case of Jonathan Ferrell whom Charlotte-Mecklenburg officer Randall Kerrick shot 10 times as Ferrell sought help following a car accident in 2013. The deadlocked jury after 4 days of deliberations  sadly came as no surprise to me. And as a former prosecutor, I felt anger at the jury and a criminal justice system that often vindicates police killings of unarmed black men and boys.

 

A grand jury indicted Kerrick on voluntary manslaughter for which he stood trial.  A civil suit resulted in a $2.25 million settlement. No dispute existed by prosecutors or the defense that Kerrick intended to shoot Ferrell and that Ferrell died as a result of the shooting. The issue remained whether Kerrick shot in self- defense or used excessive force as the prosecution argued.

 

The jury of eight men and four women consisted of 3 African Americans, 2 Latinos and 7 whites.  The initial jury vote was 7-5 and the final vote was 8-4 for acquittal.  The jury did not reveal the racial composition of the jury’s vote. I surmise that the breakdown likely appears along racial lines.

 

While some argue the jury did not decide the case based on race, I disagree.  As a trial lawyer and former prosecutor, race plays a pivotal role in most cases where one party is white and another is black.  It does not necessarily mean that a juror is overtly prejudiced for or against one party based on race.  It does mean the lens through which jurors view the facts of a particular case is based on their own perceptions. And their perceptions are based on their race and life’s experiences.  And the judge instructed jurors that they are not to disregard their common sense in weighing the evidence.

 

When many whites hear the testimony of a white police officer saying he feared for his life as Ferrell, a large former college football player, came towards him after being asked to stop three times, they see and likely empathize with Kerrick.  Kerrick saw a large black man as a lethal threat and in a matter of seconds shot and killed him. He never identified himself as a police officer.  Kerrick testified that he had no option but to shoot. He didn’t know if Ferrell had a gun.  He continued to shoot Ferrell even after he fell to the ground.

 

And for many white jurors, their common sense which will be similar to that of Kerrick likely determines the outcome of their vote.  And their lens may distort their vision from seeing any other view other than that of Kerrick.  And they will likely find reasonable doubt on the prosecution’s assertion that Kerrick used excessive force and vote to acquit.  For many African Americans, their views on police differ vastly from whites due to their experiences or those of family and friends.  Many blacks understand that they could be Jonathan Ferrell.

 

The prosecution presented testimony to show inconsistencies in Kerrick’s testimony.  They also introduced expert testimony supporting the use of excessive force by Kerrick.  Presumably it was not enough to overcome the unconscious racial bias of the whites on the jury.

 

 

We must change the culture of police that sees unarmed blacks as a lethal threat whether playing in a playground like 12 year old Tamir Rice, driving a car like Samuel Dubose or seeking help following an accident like Jonathan Ferrell.  Unless we require extensive and ongoing racial bias and sensitivity training in all police departments throughout the U.S., we will continue to see more unarmed Jonathan Ferrells shot and killed by police.   And we will see jurors siding with the police to acquit them.

 

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

5 Police Officer Trials to Watch in 2015

Wednesday, August 19th, 2015
Baltimore Circuit Court House via Flickr by Kirsch

Baltimore Circuit Court House via Flickr by Kirsch

From Freddie Gray in Baltimore  who ran away from police officers to Jonathan Ferrell who ran towards Charlotte police officers for help, five trials of on duty police officers for killing unarmed victims will likely take place in 2015.

On Wednesday, August 19, a Fairfax, Virginia judge  set   December 14, 2015 as the trial date for former officer Adam Torres accused of shooting and killing John Geer in August, 2013 at his home for a domestic dispute call. In an unusual legal move for police officers, a Fairfax County judge denied bail for Torres—a move that caused the defendant to faint in the court room. Prosecutors refused to offer a plea bargain to Torres—a move that signifies the case will likely head to trial. Although the killing occurred two years ago, the county police initially refused to turn over necessary information on Torres to prosecutors–causing a delay in bringing charges.

The case of the six Baltimore police officers charged on May 1, 2015 with assault and manslaughter in the death of Freddie Gray starts October 13, 2015 with motions hearings scheduled for September 2. Gray was found unconscious after being placed in a police van. He died one week later of severe spinal  injuries allegedly as a result of being unrestrained in the police van. Almost as important as the trial date is the motions hearings date where the judge’s rulings will determine crucial decisions concerning evidence in the case, location of the trial and other issues. Motions filed by the defense lawyers contend that the defendants will not receive a fair trial if the trial is held in Baltimore. A fair and impartial jury is possible in Baltimore City as rulings in other high profile cases prove. The recent cases of the Boston Bomber and Aurora Colorado theater shooting case were held in their respective jurisdiction—despite the high publicity and number of persons killed and injured in those cases. Baltimore and the ability to obtain fair and impartial jurors is no different from Boston and Aurora.

 

A judge set November 4, 2015 as the trial for University of Cincinnati police officer Ray Tensing who fatally shot unarmed Samuel Dubose in July in a matter of seconds following a routine traffic stop. The police dash cam caught the incident on camera. Tensing’s lawyers plan to file for a change of venue despite acknowledging that a change of venue rarely occurs in Hamilton County. Tensing is expected to argue that Dubose caused him to fear for his life.

 

A Charlotte jury is deliberating the police officer charged with manslaughter in the shooting death of Jonathan Ferrell. Randall Kerrick shot Ferrell ten times as Ferrell ran towards the officer and two other officers for help following an accident and after knocking on a house door for help. Like in most police officer shootings, the jury must decide if excessive force was used or reasonable force. The other two officers present with Kerrick did not shoot. They also did not testify. And like many on duty police killings, the defense blamed the victim. That is also an expected defense in the Freddie Gray case in Baltimore.

 

Former North Charleston officer Michael Slager faces murder charges for the April shooting of Walter Scott eight times in the back while running away for a routine traffic stop. His actions were caught on video tape by a bystander. While no trial date has been set yet, an August 27 hearing on Slager’s bond has been scheduled. He remains in custody awaiting trial.

A judge ruled on Tuesday that two Albuquerque, New Mexico police officers will go to trial for the 2014 murder of James Boyd, a homeless man who suffered from schizophrenia. As with the case of Slager, there is video of the shooting. Boyd appeared to be surrendering following a hours long stand-off with the officers. Boyd like Freddie Gray died later at a hospital.

 

These on duty police killing cases vary in terms of race of the victims, location, how death occurred, charges, video and other factors. Their common denominator is all victims were unarmed. If these cases prove anything, it’s the need for increased and better police training in areas of confrontation, mental illness, domestic violence, race sensitivity and when the use of force is unwarranted. Despite the number of police officers facing trials in 2015, they pale in comparison to the large number of persons who die at the hands of police every year. There must be universal reform in how police departments conduct business. If not, many more unarmed persons will continue to die at the hands of police.

UPDATE:  On August 21, the manslaughter trial of officer Randall Kerrick for  the death of Jonathan Ferrell ended with a deadlock jury of 8-4 in favor of acquittal.  No decision on whether to retry  Kerrick.

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

 

 

 

 

 

Why Cameras are Needed in the Courtroom

Thursday, August 13th, 2015
Baltimore Circuit Court House via Flickr by Kirsch

Baltimore Circuit Court House via Flickr by Kirsch

On Wednesday August 12, Minnesota’s Supreme Court approved a pilot program to commence in November allowing cameras in criminal court rooms but only in sentencing hearings. The new rule changes the precondition that all parties consent.  Much of the work of our criminal justice system occurs long before a trial or plea bargain. Cameras are needed inside courts to bring about necessary changes in the criminal justice system.

 

The recent police shootings of unarmed minorities sparked the call by many for police to wear body cameras to show how events unfold.   Body cameras only speak to one part of the equation. The other part is what happens inside courtrooms across America.

 

As a former prosecutor and now trial lawyer, I see the need for allowing cameras in all court rooms.  Most court room proceedings are open to the public.  Those proceedings that are already open to the public present no harm in allowing further transparency with cameras.

 

The use of cameras inside courts varies from state to state. In Maryland where I prosecuted, camera coverage is prohibited in criminal cases. Those opponents in Minnesota and elsewhere against cameras inside the courtroom argue cameras only benefit the media but work against justice and due process. I beg to differ.

 

In criminal cases from bail hearings, arraignment, motions hearings, trials and post- trial proceedings, the criminal justice system grinds daily.  What happens inside court rooms will surprise most people. Real court does not remotely resemble TV dramas. And most high profile trials that are broadcast give only a glimpse of how the system works.  The most important aspects of the criminal justice system are the day to day inner workings of courts.

 

A bail hearing is the first step in the process for someone charged with a crime to determine an amount of bail or release without bail. Factors depend on the seriousness of the crime, an individual’s ties to the community and whether he or she presents a flight risk.  The amount of bail set is usually an arbitrary amount and varies from judge to judge or county to county for similar crimes and individual criminal history. In Baltimore following the Freddie Gray unrest, a judge set a $500,000 bail for Allen Bullock, the African America teen who turned himself following alleged destruction of a police vehicle whose photo went viral.  Meanwhile, the six Baltimore police officers charged with the death or assault of Freddie Gray received bails ranging from $250,000 to $350,000.  And former University of Cincinnati police officer Ray Tensing received a $1 million bail for the  shooting death of Samuel Dubose.  I’ve seen a  defendant with no previous criminal record receive a bail set at $100,000 for sending harassing texts and emails.  A closer look at our bail system is warranted.

 

Many persons who cannot pay bail regardless of their crime remain in jail until trial.  In misdemeanor cases, that sometimes means a person might spend as much time in jail awaiting trial as the maximum sentence allowed for the crime for which they are charged.   In other cases, many innocent persons unable to make bail will agree to plea bargains  just to receive their get out of jail free card.  Trials for individuals who do not want a plea bargain are a rare occurrence.  More than 90% of all criminal cases result in a plea bargain.

 

The most striking aspect of cameras inside court rooms, particularly those in urban cities, will show the disparate amount of African Americans in the criminal justice system facing misdemeanors.  Court rooms of mostly African Americans often fill up with standing room only.   In most states, misdemeanor dockets make up the vast majority of cases.  Yet, felonies receive all the media attention.

 

The interaction between lawyers and their clients varies. Many lawyers are very well prepared.  However, many overworked public defenders and some private counsel meet their clients for the first time inside the court room on the day of the case. And I see lawyers who do not know the facts or legal aspects of a client’s case. And a lawyer’s preparation often determines the outcome of a case.

 

I doubt if cameras will change the way that lawyers, judges or defendants act.  The change will come from how concerned citizens respond. Seeing the harsh realities of real court room drama will compel change.   As many activists lobby for body cameras on police, they should also argue that cameras be allowed inside criminal courts.  Change will not occur in the criminal justice system until we know the facts that necessitate the change.

 

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