Mosby defends tactics, lashes out at critics

Baltimore City State’s Attorney Marilyn J. Mosby surprised many when she promised justice for Freddie Gray on the steps of the War Memorial Building on May 1, 2015. So perhaps it was fitting she surprised again Wednesday with the sudden announcement that prosecutors were dropping charges against Officers Garrett Miller and William Porter and Sgt. Alicia White following the acquittals of Lt. Brian Rice and Officers Edward Nero and Caesar Goodson.

Baltimore City State’s Attorney Marilyn J. Mosby addresses the media Wednesday in west Baltimore with a mural depicting Freddie Gray behind her. (Maximilian Franz/The Daily Record)

Freed from a gag order that covered all six trials, a defiant Mosby defended her pronouncement 18 months ago and subsequent actions that have drawn scorn and praise from legal observers.

“I refuse to allow the grandstanding of some and the hyperbole of others to diminish our effort to seek justice for this man,” she said Wednesday, referring to Gray.

Mosby was facing increasing criticism from some quarters calling on her to end the prosecutions, particularly as Baltimore City Circuit Judge Barry Williams made his feelings about weaknesses in the state’s cases clear.

“It was the right decision because there’s no doubt the writing was on the wall that the remaining officers would be acquitted,” said former city prosecutor Warren S. Alperstein, who observed most of the trials. “I don’t think one person observing these cases expected them to proceed in the way they did and ultimately conclude in this dramatic fashion. Regardless of acquittal or dismissal or hung jury, not one crime was proven.”

Mosby on Wednesday praised her prosecutors for their work on the case and accused “individual” police officers of trying to sabotage her office’s work.

“The decision to prosecute six police officers was not and has never been an indictment of the entire Baltimore Police Department,” she said, thanking Commissioner Kevin Davis for his assistance. “For those that believe I am anti-police, that is simply not the case. I’m anti-police brutality.”

But Ivan Bates of Bates & Garcia PC in Baltimore, one of the attorneys for White, said the Maryland State Police and FBI offered Mosby resources to investigate the police department but she declined them. He criticized Mosby not honoring a prosecutor’s “special responsibility” to only move forward with cases where there is probable cause.

“We always attack the criminal justice system. We have to let the criminal justice system speak for itself,” said Bates, speaking on behalf of all of the defendants and their lawyers. “It gets it right.”

Mosby’s allegations about individual officers sabotaging the case angered Gene Ryan, president of the Fraternal Order of Police’s Baltimore lodge, who called Mosby’s comments “outrageous” at a news conference Wednesday afternoon.

“Our guys are very professional,” he said of investigators.

Davis echoed this sentiment in a prepared statement, noting that 30 “ethical, experienced and talented detectives worked tirelessly to uncover facts.”

Alperstein, of Alperstein & Diener P.A. in Baltimore said in high-profile cases, mistrust issues between the parties can result in personal attacks and accusations.

“These things can reach a boiling point when the defense believes the state is withholding exculpatory evidence and changing the rules of the game,” he said. “It’s so frustrating for defense attorneys to be representing a client and always wondering whether the state is upholding its discovery obligations.”

Positive impact?

Mosby spoke outside Gilmor Homes, the west Baltimore public housing project where Gray was arrested April 12, 2015 and suffered a fatal spinal cord injury while riding in the back of a police van. Mosby did not take questions from reporters, citing pending civil defamation suits filed against her by five of the six officers.

“She’s a politician and this proves it,” said Baltimore defense attorney Steven H. Levin, a vocal critic of Mosby. “She should be the state’s attorney first and a politician second but clearly having her press conference where she had it suggests she’s a politician through and through.”

A. Dwight Pettit, a Baltimore solo practitioner, said despite the lack of convictions in the cases against the officers, he believes the decision to prosecute the officers will ultimately have a significant effect on future interactions between police officers and the Baltimore community.

“I think this has had a very positive impact overall,” said Pettit, who represents plaintiffs in police brutality lawsuits. “I applaud Ms. Mosby for bringing the charges and having the tenacious attitude to stick with it as long as she could. I think it sent a message in terms of law enforcement in Baltimore city that certain conduct will not be tolerated, and there are people who will pursue sanctions against illegal activity, even though in this case it has resulted in acquittals.”

Mosby touted the positive changes that have occurred since Gray’s death, including police body cameras, video footage inside police vans, a seat belt requirement and the technology to ensure officers read new General Orders.

“Never again should an officer show a blatant disregard for human life,” she said.

But Levin, of Levin & Curlett LLC, argued it was Gray’s death that formed the basis for policy and equipment overhauls.

“It’s a ridiculous point for her to suggest that her charging decision resulted in transformation,” he said. “In fact, I believe the Baltimore Police Department would have made changes without the charging decisions.”

Decision to drop

Jacob Frenkel, a former federal prosecutor, said Mosby “absolutely” made the correct decision in dropping the charges. The biggest takeaway from the outcome of the cases, he said, was the importance of conducting a thorough investigation before filing charges, an approach that future prosecutors of police will likely employ.

“You hope that there will be a more thoughtful approach to separating the perceived political desirability or acceptability of filing charges from the need to investigate thoroughly and consider the appropriateness and likelihood of success in filing the charges,” said Frenkel, a member of Dickinson Wright PLLC in Washington. “I think the haste with which the state’s attorney filed the charges and the public resolve created for the state a runaway freight train that either would reach its destination to fireworks and applause, or crash disastrously — and it is the latter that occurred.”

Mosby said Wednesday the outcome would have been different if she had independent investigators from the beginning.

“We’ve all borne witness to an inherent bias when police police themselves,” she said.

Daily Record legal affairs writer Lauren Kirkwood contributed to this report.