In the first of a three-part interview, Baltimore City State’s Attorney talks about the difficulties of prosecuting police and reforms that could help
BAYNARD WOODS: As the top prosecutor in the city, the State’s Attorney is one of the most important elected officials in Baltimore. Marilyn Mosby won the seat in 2014 in a heated race with Gregg Bernstein. Shortly after taking office, the city was shaken by protests following the death of Freddie Gray in police custody. During the height of the unrest Mosby, the youngest top prosecutor in the country, stood on the steps of the war memorial and announced the charges against six officers.
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But now she faces a tough re-election battle herself, and things are much different. She wasn’t able to secure convictions against any of those officers, and in the wake of the federal Gun Trace Task Force corruption trial the state’s attorney’s office has been accused by opponents of looking the other way when it comes to bad cops who bring big cases. We’ll be talking with all three of the candidates for state’s attorney in the coming weeks. But now in the first of a three part interview we talk with Marilyn Mosby about the trajectory from Freddie Gray to the Gun Trace Task Force.
Whatever you do, whatever else you do, the thousands of cases that your office has tried, the public is still going to see you on the steps of the war memorial on May 1st in 2015. How do you look back when you look back on those moments now and think about that case and what it says about your record as in this job?
MARILYN MOSBY: So what I can say is, you know, four months into my term when an innocent 25 year old black man by the name of Freddie Carlos Gray Jr. made eye contact with police officers, was illegally arrested and placed into a metal wagon headfirst, feet shackled and handcuffed, essentially defenseless, And then his subsequent pleas for medical attention were ignored, I followed the facts with the law, and I wouldn’t do anything differently. I charged those that I deemed responsible for his death. And what I can say, you know, in retrospect, is that that accountability which had not been had throughout this country, right, where you’re applying justice fairly and equally to everybody regardless of one’s sex, religion, or occupation. That accountability ultimately led to exposure.
A week after I charged those officers the Department of Justice came in and exposed the discriminatory policing practices of one of the largest police agencies in this country, that ultimately that exposure led to reform. We now have a federally enforceable consent decree that even despite the federal administration that tried to forestall it is still on record. Thanks to that reform we now have a spotlight on the entrenched police corruption within the Baltimore Police Department. You think about some of the reforms that have been put in place since I charged those officers, whether it’s the seatbelts on the prisoners that are now mandatory, whether it’s when prisoners ask for medical attention they’re now required to give it, whether it’s the full implementation of body worn cameras. If we can now focus on the de-escalation policies which focus on the, the sanctity of life, these are all sort of reforms that have been put into place thanks to those charges.
BAYNARD WOODS: One of the things that really interested me in the case was the charge, the assault charges, and that was operating on the legal theory that if an officer doesn’t have legitimate probable cause it doesn’t make a legitimate Terry stop, and then touches a citizen, then that can be charged as assault. And Nero got off on that by saying Miller is the one who punched him, and then Miller never got, never ended up going to trial. Is that a legal theory that you would try again in a situation if a citizen came to you and said, I was I was touched by this officer and he had no legitimate probable cause?
MARILYN MOSBY: So I think it goes beyond, and I can’t get into the specifics of Freddie Gray because your civil case case is still pending. But if there’s ever an instance where an officer is essentially holding somebody down against their will and they don’t have the proper probable cause or, you know, the reason to do so, I would think that, you know, if they’re hurting somebody they’re going to, I’m going to follow the facts with the law. And if it requires that I criminally charge you based upon your actions, then I will.
BAYNARD WOODS: So you’re mentioning the difficulty of police investigating each other and some of the reform that comes from that. And I think that case really showed that a lot. I mean, I was shocked recently on HBO that they had the documentary about the period of the trials and they had Detective Dawnyell Taylor walking into the courtroom and then they have her walk out, and they don’t say that your prosecutors accused her in open court that day of sabotaging the case.
And I feel that that does something that really kind of rewrites the history of, of – do you believe that they did, especially by not making the cell phones, not making where you could get a warrant to get those cell phones. Did that really sabotage the case?
MARILYN MOSBY: So there were several sort of issues that I’ve gone on record and spoke about when I dropped those charges that were concerning to me. You know, the lead detective, and I believe she celebrated the victory once the officers were let off. But there were several things that happened, and we were relying upon the police to investigate their self. I think that it’s not, it’s not just a police issue. I think that when it comes to any profession you shouldn’t have your colleagues investigating themselves. You know, these are your friends, these are people that you’ve gone through the academy with. You’re not going to ask the most pertinent questions you’re going to give them leeway when it comes to you doing your job.
And so, you know, I’ve come out with a slate of reform proposals, one of which, you know, has been adopted by the Association for Prosecuting Attorneys. When we say police, when it comes to police involved deaths in shootings police, we should have an independent investigatory agency that does these investigations. Unfortunately, I was pretty much – my hands were tied, because my investigators within my office don’t have police powers. This is, again, was one of the proposals that I’ve gone down to Annapolis to try to fight. You know, the ability to execute a search and seizure warrant. So when it came to Freddie Gray we were relying upon the lead detective, who was working against us the entire time, to serve and execute a search and seizure warrant.
They didn’t do it on the personal cell phones when there were several sort of, you know, text messages between the officers in between the stops. I talked about that same detective who pretty much in trial developed notes that contradicted the medical examiner’s report. Turned those notes over to defense attorneys months before they turned it over to us in trial. But we were then somehow sanctioned because of it. There were just a number of issues that, again, you can avoid when you don’t have the same agency investigating itself.
BAYNARD WOODS: So I mean, if that was four months into your term, about four months from the election, we have this other huge trial with the Gun Trace Task Force trial, and we see, you know, in the 2009 case of the shooting of Shawn Cannady by Detective Jemell Rayam, or then-Detective Jemell Rayam, that Detective Gonda said in trial that a Deputy Commissioner Palmere came out and coached them what to do on the scene, walked them through that scene. Do you think the Freddie Gray case had that same kind of thing happen, that there was – I mean, is that what you were sort of alluding to? There was coaching?
MARILYN MOSBY: Again, I don’t get too far into Freddie Gray because of pending litigation. But I can tell you that a lot of the same issues that were presented in the GTTF case that came out publicly, you know, the FBI not wanting to rely upon the Baltimore Police Department in order to further their investigation were the same hurdles that we were up against in the Freddie Gray case.
BAYNARD WOODS: So in the GTTF case, when I came in you said that, alluded to that we’d been kind of hard on you recently, and I feel like I have been covering some of your opponents in the case who have said that your office has tried to just overlook people like Jemell Rayam by avoiding calling them to the stand and trying to get around around calling them. What would you say to them, people who say that your prosecutors just look the other way sometimes?
MARILYN MOSBY: So what I can say is that my record speaks for itself when it comes to transparency and accountability. That has been the hallmark of my administration. And you know, we are always going to do the right thing. And we make disclosures on officers with credibility issues. And you know, we then disclose that information to the City Solicitor’s Office, and it’s then on the police department to do what they need to do with those individuals. We have an internal notification system that allows us to make these disclosures to defense counsel, and we do our jobs. If, you know, an officer has a credibility issue that is going to undermine public trust, we’re not going to call him to the stand. We’re not going to proceed upon those cases. And that was made clear through the unprecedented sort of approach that I had to take when it came to the body worn cameras, and some of the officers that were recreating scenes and, you know, discovering, acting as if they’re discovering evidence for the first time, and not putting that in the statement of probable cause. That goes to your credibility. And because you’re undermining public trust, I’m not going to call you to the stand.
I’m not going to allow your case to proceed. And so, you know, that I think my record in and of itself, I’m, I’m not at all complicit with police corruption. You know, when it comes to challenging the status quo then making tough decisions, I have the scars to prove it.