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Attorney A. Dwight Pettit and law professor Byron Warnken discuss the accusation that the charges laid against six Baltimore police “overreached”

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PAUL JAY, SENIOR EDITOR, TRNN: Welcome back to The Real News Network. I’m Paul Jay. There’s been a lot of commentary on television these days regarding the Baltimore events, and of course the statements or charging of the cops, and the statement by Marilyn Mosby, the State’s Attorney, essentially saying that she overreached. The question is, did she charge too heavily in a sense that she won’t be able to make those charges stick? Well, now joining us to discuss this topic, first of all, is Dwight Pettit. He’s a civil rights attorney in Baltimore. He specializes in criminal and constitutional law. And also joining us is Byron Warnken. He’s a University of Baltimore law professor, and expert on criminal and appellate law. Thanks for joining us, both. A. DWIGHT PETTIT, CIVIL RIGHTS ATTORNEY: Thanks for having us. JAY: So Byron, what do you think? Did the State’s Attorney overcharge? BYRON L. WARNKEN, Esq.: I only know the facts that she’s explaining that she believes her office can charge. If her office–can prove. If her office can prove what she was saying, then I think there was no overcharging, with the possible exception of the second degree depraved heart murder. That’s a close question. JAY: That’s the guy driving the van. WARNKEN: Yes it is. JAY: What do you think, Dwight? PETTIT: I don’t think she overcharged. I think even the depraved heart murder is something that can be made because basically she is not required to prove specific intent, number one. Number two, she’s not required to actually prove any type of malice. It’s more or less gross negligent, to the point that you created a risk, you knew the risk of a dangerous situation existed, and you in fact did nothing to save the, or remove the victim from that risk. And so in terms of the more serious charge, I think by the fact that went murder two–she went murder two, depraved heart, she can make that on a gross negligence without getting into the more difficult specifics of specific intent. Also, remind the audience that she did not go with first degree or anything like that, which would have required premeditation, malice of forethought, and what have you. So I think depraved heart was the proper charge. The other charges, I think that she can make. When she talks about false imprisonment and false arrest, if there’s no probable cause, even if there had been articulable or reasonable suspicion, there was no probable cause for the arrest. And once they took him down and found no criminality, when they found no result of a criminal act, no knife, no weapon, no contraband, then they had to release him. JAY: Now, part of–now, we don’t know whether what the State’s Attorney says is true or not. It’s yet to be proved in court. But as you say, if it’s true what she says, then there’s many, several at least, attempts by Freddie to get medical help. He’s screaming that he needs medical help. He doesn’t have a seat belt, he’s bouncing all around in the van. Doesn’t that, isn’t that enough basis for it? WARNKEN: That’s all part of the totality of the circumstances. But I don’t think, if that’s the only fact you have, I don’t think the fact that when you ask for your inhaler and I failed to do anything for you, that’s not going to show an extreme indifference to human life, which is what you’ve got to prove for second degree. Possibly the sum of all of the facts. The best fact for the state is apparently he stopped twice, got out, went back and looked on this guy who wasn’t belted in and was still clamoring for the inhaler. And he didn’t do anything other than to get back in and continue to drive on. JAY: I’m assuming part of the defense is going to be, you know, we do this all the time. People are always complaining. They always want to find some way, they say, get–you know, I’m hurt, as a way to get out of the van. Why isn’t that going to be a good enough defense? PETTIT: Well, the argument to that is that the policy and procedure says, as I understand it, that they should be strapped in. They should be seat belted. And so here you have officers that were involved with putting him in, as well as the driver who according to the evidence that I anticipate knew that he was not belted because he was checked two or three times. And so you do not have them following what I believe to be the policy and procedure. And so that in itself takes it to their individual criminality of not following policy and procedure, and therefore increasing the extreme danger in which the victim was subject to. WARNKEN: And note that merely because I fail to follow procedures, even if I knew what those procedures were as I should, merely because I fail to follow them doesn’t mean my conduct is an extreme indifference to human life. But it is a factor. JAY: What do you think? PETTIT: Well, I think, you know, we go back to what Byron said earlier. When you put all the elements together, all the evidence that we’ve heard that the state is going to prove, when you put that together then you begin to build a pyramid to the point of, where do you get to the point of extreme? And then it becomes a factual interpretation for a jury. JAY: Right. And if you’re defending the police, what’s your strongest argument? WARNKEN: Well, I guess the strongest argument was that even though this conduct was negligent, even in a worst case scenario grossly negligent, I would argue if I represented the police that the conduct did not rise to the level of an extreme indifference for human life, which is what the case law in Maryland says second degree depraved heart murder needs. JAY: And if you’re prosecuting, what’s your strongest argument? PETTIT: That you put it all together, then the conduct then becomes extreme. If you add the fact of him complaining, requesting an inhaler, or the fact of apparently being injured and not calling for medical assistance or not calling for an ambulance, continuing to keep him in the van for a certain period of time. You put all that together and that would say to me that, the argument that it’s extreme and therefore within the stature and within the instructions of extreme disregard of the life-endangering consequences. I think you make that case. JAY: And if you’re successful defending, or his defense lawyer’s successful, what message does that send to the police? WARNKEN: Well, what it probably means is you can be convicted for a ten-year involuntary manslaughter by wanton and reckless disregard even if the facts don’t rise to the level of a 30-year depraved heart extreme indifference case. It’s a continuum. It’s a continuum. JAY: So from what you know now of the facts that lesser charge, you think, could be made. WARNKEN: Well certainly the lesser charge, because it’s only on a continuum. That lesser charge would be more supportable than the greater charge. And again, when you listen to Marilyn Mosby’s explanation, if she can convince twelve people beyond a reasonable doubt, then I think she’s got the involuntary manslaughter at least. JAY: Okay. Thank you for joining us. And thank you for joining us on The Real News Network.


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Byron L. Warnken, Esq. has been a practicing attorney for more than 30 years. He is the founding member of Warnken, LLC, Attorneys-at-Law. Also a law professor with more than three decades of experience, Warnken's career has been diverse and filled with accolades. Warnken's cases consist of criminal post-verdict matters, appellate litigation, law enforcement representation, and ethics issues. He is also an expert witness in police misconduct cases, other law enforcement and LEOBOR matters, and in criminal post conviction cases. Warnken was part of State's Attorney Marilyn Mosby's transition team. Since 1998, Warnken, LLC has represented the Maryland Troopers Association, the largest labor organization of the Maryland State Police.

A. Dwight Pettit has been practicing law since 1970, when he began his career as a trial attorney for the Small Business Administration under President Richard Nixon. During his time with the SBA, he litigated the landmark case Pettit v. United States, which established precedent for back pay awards in discrimination cases. Pettit left the SBA in 1973 to form his own law firm with three other attorneys and then later established his own practice. He has handled many high-profile criminal and civil cases such as Scott v. Sutton Place (1977), which determined Maryland landlords responsible for criminal activity occurring on their property. Pettit won his first million-dollar judgment against the Washington, D.C. Transit Authority in a 1983 accident case. Pettit now lives and works in Baltimore, Maryland.