Defamation and Reform in the State’s Attorney’s Race

By: Baynard Woods | June 26, 2018
bwoods0629

By Baynard Woods

At a press conference the day before the primary election, candidate for Baltimore City State’s Attorney Ivan Bates threatened to sue both of his opponents—incumbent Marilyn Mosby and former Deputy Attorney General Thiru Vignarajah—for their recent claims that he has never won a murder case.

“When you make lies and you lie on a person’s name and integrity, there are consequences,” Bates said, surrounded by homicide prosecutors and detectives. Bates says he is also suing law professor Larry Gibson and Sean Yoes, the editor of the Afro newspaper. Gibson originated the claims that Bates had never won a homicide case and Yoes reported on Gibson’s statements.

“The allegations that have been made against him and are completely false and broke the law from a civil standpoint, we have drafted and intend to file a lawsuit against Thiru against Mrs. Mosby’s camp, as well as the Afro American [The Afro newspaper] for claims that have been made against Mr. Bates,” his attorney Davis Ellin said Monday.

Later in the day, at a press conference in front of City Hall, Mosby responded to the claim, referring to Alicia White, one of the officers charged in the Freddie Gray case who was defended by Bates, and the unsuccessful defamation lawsuit that some of those officers filed against her.

“He should know that, much like the folks that he represented in the Fraternal Order of Police, that sued me and lost,” she said. “I will not be bullied and I am not intimidated by feeble threats of suit. This is no more than a desperate ploy for a desperate candidate.”

In a press conference of his own, Vignarajah also called Bates desperate. “If you are in last place and this is the kind of Hail Mary practice you do to try to attack the front runners,” he said, citing internal polls that, he says, make it a race between him and Mosby, with Bates in third place. There have been no official polls.

Both Bates and Vignarajah were sued over Maryland’s residency requirement, with plaintiffs in both cases alleging that the candidates did not live in Maryland. In a surreal moment, Vignarajah actually represented the plaintiff in the case against Bates. Now, only hours after the two men debated for the final time on WYPR, Bates had seemingly opened himself to attack.
“Release the records. If you tried cases, be proud of it,” Vignarajah said.

Bates had given out paperwork for 13 murder cases he tried, but the threatened suit seemed to misfire.

Even when the claims are false, it is rare for candidates to sue their opponents. “It’s unusual to see a candidate sue their opponents for libel,” Kevin Goldberg, a First Amendment lawyer with Fletcher, Heald, and Hildreth, said in a phone call. “It is even less likely to see a case like this brought during the election, because most people are going to react really poorly. Voters might see that as a sign of weakness. It might incline them to actually vote against you.”

Because candidates are public figures, there is a higher bar for defamation, Goldberg says. He cited the case of Ruthann Aron, who ran for U.S. Senate as a Republican in Maryland in 1994 and sued her opponent after she lost. The jury ruled against her after only a few hours of deliberation.

Vignarajah jumped on the opportunity to turn the threatened suit against Bates, comparing him to the litigious and thin-skinned president—a comparison that would otherwise have fallen flat but hit a little harder because of his inclusion of Afro journalist Sean Yoes, in the suit. Yoes co-hosts a podcast with Real News reporters Taya Graham and Stephen Janis.

Yoes’ June 12 story “Gibson: `Bates Never Won a Murder Case’” almost exclusively cites University of Maryland law professor Larry Gibson, who is a legendary legal scholar in Maryland. Goldberg says that Gibson’s status could make the comments themselves newsworthy. “You’re just re-stating it because it’s news,” he said. But he added a caveat. “You need to show that you’re reporting on it even-handedly or pick a side.”

This is where it gets tricky. The Afro endorsed Mosby several days before Yoes’ story came out and Yoes, who said he was not able to comment on the record, was on the editorial board that made the endorsements. He did not seek any comment from Bates or try to otherwise verify Gibson’s claim.

“The easiest thing to show you’ve not done your job as a reporter is to not contact the subject of a story,” Goldberg said. “It is journalism 101. [If you don’t,] you’re setting yourself up to show that it is done with malice.”

Given that the claims about trying murder cases have been used specifically to cast aspersion on Bates’ character and cast him as untrustworthy, Goldberg says there could possibly be a case, however politically ill-advised it might be.

“That’s where you get the danger for defamation. Now you are using it to cast aspersion on his reputation. So it’s not just an idle statement. It could have damage,” he said.

During his career as a defense attorney, Bates previously sued the Sun after they said he pleaded the fifth in a case involving the alleged payment of a witness and claiming he may lose his licence. The case was settled out of court.

“I did sue the Baltimore Sun, and it resolved itself out of court, in which I sound very happy,” Bates, who has a degree in journalism, told the Real News early in the campaign.

The allegations in the Afro story may not be true, and they did not reach out to him for comment. Still, it does not set a good precedent, the day before the election, to threaten the oldest Black paper in the country with a lawsuit.

Bates began the campaign strongly, striking Mosby almost weekly with more evidence that her office had overlooked the GTTF crimes—or at least missed warning signals—because the dirty cops brought in big arrests and helped bolster the office’s statistics. Bates could have used the discovery violation that came to light in the Keith Davis Jr. case last week to highlight this case against his opponents. It would have been hard to watch the testimony and walk away feeling that either the detective, Mark Veney, or the prosecutor, Andrea Mason, were interested in getting the right person. It seemed as if they were interested in getting a person and chalking off a win.

Vignarajah has appealed the Court of Special Appeals’ decision to grant a new trial to Adnan Syed, whose case was made famous in the viral podcast Serial, and so Bates is the only candidate not currently involved in a case that appears to be a win-at-all costs vindictive prosecution. But instead of talking about that, the candidates spent the day discussing how many people they had each locked  up. If any of the candidates came with a strong message of real reform, they would have been able to separate themselves clearly from their opponents.

It was, in the end, the incumbent, who tried to jump into this more progressive lane in the waning hours of the race.

Mosby ended her press conference in front of City Hall responding to a question about radical Philadelphia District Attorney Larry Krasner, who has required his prosecutors to disclose to a jury what a given sentence will cost the taxpayers and what else could be done with the money.

“I actually know Larry Krasner, so I can tell you that’s something we are considering and I think it’s time to take it to a whole other level in terms of criminal justice reform in Baltimore.”

Watch The Real News from 9:30-11:30 p.m. for live election coverage

Related Bios

Baynard Woods

Baynard Woods is a criminal justice reporter and the Editorial Director of the Baltimore Bureau at the Real News. He creates Democracy in Crisis, a column and podcast syndicated in a number of alternative weekly papers, and is the author of “Coffin Point: The Strange Cases of Ed McTeer, Witchdoctor Sheriff.”