TRNN senior editor Paul Jay and civil rights attorney A. Dwight Pettit discuss the implications of Marilyn Mosby’s Friday morning announcement.
JESSICA DESVARIEUX, PRODUCER, TRNN: Welcome to The Real News Network. I’m Jessica Desvarieux coming to you live from our studio in Baltimore. Six Baltimore police officers who were involved in the arrest of Freddie Gray have been charged criminally. Here at The Real News we’ve been keeping tabs on this story and we want to unpack exactly what those charges are and what they mean for the Gray family and the Baltimore community. Now joining us in studio to unpack all of this are our two guests. Paul Jay, who is the senior editor here at The Real News, as well as Dwight Pettit, who is a Baltimore attorney, civil rights attorney, here in Baltimore. Thank you both for joining us. A. DWIGHT PETTIT, CIVIL RIGHTS ATTORNEY: Glad to be here, Jessica. DESVARIEUX: So let’s chat about what exactly these officers were charged with. Primarily we had Officer Caesar Goodson, Jr., who was the driver of the van. He was charged with second degree depraved heart murder, that’s a maximum sentence of 30 years. Officer William G. Porter, he was charged also with manslaughter, involuntary manslaughter, carries a sentence of a maximum of 10 years. Lieutenant Brian Rice, involuntary manslaughter. Officer Edward Nero, assault in second degree, as well as we have Officer Garret Miller, assault in second degree, and Sergeant Alicia White, manslaughter. Involuntary manslaughter, I should stay. And a litany of other charges that we just don’t have that much time to mention right now. But for you, Dwight, after hearing all these charges, what are some of the highlights? PETTIT: Well, I think she avoided the most serious charges, which would have been much more difficult to make. I was very concerned that she might overcharge because of the public roar and outrage. I was afraid that she might try to make murder in the first degree. And I didn’t see any premeditation that would in fact allow that charge to stand. So I think she tried to make the charges, particularly the, except for the second degree attempted–second degree murder, charges that she could make in a court of law. You’ve got to remember, charges are just basically what you’ll take to the grand jury in terms of probable cause. And so that doesn’t stand the test of beyond a reasonable doubt. That will be the test in trial. And so it seems to me that she was bold and conservative at the same time, if you can put those two together. DESVARIEUX: Okay. And do you think that she’ll really be able to get these charges to stick? PETTIT: Well, that’s what I’m talking about. Trial is a different thing. But that will go before a jury, and a jury will decide that with open trial and argument from both defense council and the State’s Attorney’s office. So that gives us the transparency that the public is calling for that is not going to be swept up under the rug. A trial is going to be public. Everybody’s going to be able to see the evidence and hear the evidence, and I think this is what the public was calling for, where in the past there was just automatic, from the State’s Attorney’s office, that the police acted within the law and swept under the rug, and that was it. PAUL JAY, SENIOR EDITOR, TRNN: I think there’s been a lot of attention in the media so far this morning about who actually committed the homicide. And they have sort of answered the question now. They’re certainly putting most of the blame on the driver, but clearly something happened before he got into the van. But all of that I think is still in the realm of the behavior of a few specific cops. Now, I think this is a breakthrough for Baltimore that a few specific cops are being held accountable, because that almost never happens here. And I don’t think it ever would have happened without these mass protests, including some of the violence that took place. If this hadn’t become–this became a national story because the National Guard come in, because there’s so much policing going on. So I don’t think these individual cops would have been, unlikely, held accountable without all of that. That being said, it’s still about a few individual cops. What she said that has systemic implications, and I think is maybe the more important piece of what she said, is that several of these cops are being charged with false imprisonment. The arrest was illegal. The knife he had was legal. That is saying you can’t just haul people into a police van anymore. They’re saying that that’s illegal to just grab somebody because they run and throw them into a van, and then maybe concoct some charge when you get home, like resist–back to the police station, like resisting arrest, or any number of things that get concocted between the event and getting back to the station. The real question now is going to be, does this make itself into systemically a piece of police procedure. You can no longer bust somebody for being black in a poor neighborhood. Because up until now that was almost probable cause. If you’re black and you’re in one of these projects, that’s enough for us to pick you up if we want to. So that’s–I think very significant piece. PETTIT: I think Paul makes a tremendous point. And not only does it have national implications, but the major implications for Baltimore and the state of Maryland is the fact that–Paul is exactly right. The police have totally disregarded the Constitutional rights of the individuals. Both the U.S. Constitution and the Maryland Declaration of Rights. And what has really propelled this in Baltimore, apart from the social issues of jobs, et cetera, et cetera, education–what has propelled this in Baltimore was the fact of zero tolerance, which gave the police officers a feeling of omnipotence that they did not have to look at the Constitution. They did not have to observe the rights. So when she spent the time that she spent as Paul just indicated in relationship to probable cause, or for that matter no articulable suspicion, which is the terms that are used in terms of stop and frisk and all of that. But in Baltimore they’ve gotten worse than stop and frisk. Since the zero tolerance days there was just–you didn’t have to do anything but be black, be poor, and be observed. As they said, he made eye contact with me and he took off running. And what’s the crime? So then they try to go back in many cases after they catch the individual and say, well, he had some dope on him, or he had a weapon on him. But in this instance the weapon that he has is not really illegal. He had a pocketknife. JAY: Which they leaked, and they essentially lied in the leak, saying it’s an illegal switchblade when it’s–. PETTIT: Exactly. Well, they do that all the time. JAY: Right, exactly. PETTIT: That’s always, they do the–the primary defense is to start degrading the victim, or the person that was the subject to the illegal search and seizure or arrest. JAY: Now, a lot of the police have been referencing, when you talk to them on the streets, that there’s a Supreme Court decision that says in a high crime area, running is probable cause. Now, we’re still trying to figure this out, whether it actually is such a case or not. I don’t know if you know. DESVARIEUX: Well let’s ask Dwight, here–. PETTIT: I don’t think that that’s exactly the articulation of the case. I think the court said basically, and I’ve got to look at the case again, Paul. But I think the court basically said that you can use deadly force–you cannot use deadly force unless the person that’s running presents some threat or danger to other people or to other persons, officers, or what have you. So there’s an exception to that, that run situation. JAY: Well what the police think, and I’ve talked to several policemen who are saying this, but we’re also hearing it in scuttlebutt from all kinds of people that according to this Supreme Court decision, and we’re trying to find out what decision they’re trying to reference, that–I’m sorry, I’m hearing something in my ear. DESVARIEUX: Tennessee vs. Gardner, is it? JAY: I have–and we’re, hi everybody. We’re hearing in our ear some instructions, and that’s going to happen throughout the day. So this court case says that if someone simply runs, that’s probable cause? Okay. This is what–this decision is what Dwight’s talking about, which is when you can use deadly force when a person runs. PETTIT: That’s the one I’m familiar with. JAY: That’s quite a separate thing than what happened here, because there’s–. PETTIT: I haven’t heard of one just running as probable cause. JAY: Yeah. The police are referencing as if there’s a case where just running is probable cause. DESVARIEUX: If people know of that case, please tweet us, we’ll be able to get that on and talk about it. JAY: Yeah. I’ve talked to several attorneys–I mean, I talked to Dwight, but we’ve also talked to some people from Center for Constitutional Rights and other lawyers that are trying to find what is this magical case. But as far as they know, making eye contact and running is not probable cause for a stop. Now, let’s even say there is such a thing. Let’s say. That doesn’t mean you can arrest somebody because they ran. Even if there’s such a case that you can run after somebody and try to stop them, that’s a whole different issue that when you stop the person they have no drugs, they have no weapons, they’ve done nothing. You can’t arrest somebody because they run away from you. Now we know it happens every day in Baltimore, never mind running away. You can be rousted on a street corner here and have nothing on you, and they have something–they have a phrase for it in Baltimore called walkthroughs. And what they do is they pick you up for nothing and they walk you through the police station. And they hold you for hours, and then they kick you loose. And it’s just another way to assert the power and intimidate people, and it’s happening in neighborhoods across the city. She’s saying that’s illegal. So now the question’s going to be are we–can we start seeing some police arrested for this false imprisonment? DESVARIEUX: Yeah. Well, let’s get to what she actually said at the press conference earlier today. We have a clip that we’d like to play for you. Let’s see what she had to say.
MARILYN J. MOSBY, STATE’S ATTORNEY FOR BALTIMORE CITY: The findings of our comprehensive, thorough, and independent investigation coupled with the medical examiner’s determination that Mr. Gray’s death was a homicide which we received today has led us to believe that we have probable cause to file criminal charges.
DESVARIEUX: –what is the significance of that? Really explain that to our viewers. PETTIT: That is a major factor in terms of what the conclusions of the Medical Examiner’s Office lead to. In other words if they, undetermined cause of death, or something like that, then it’s more difficult to bring in the criminality. But the homicide aspect, meaning that somebody caused that death in a criminal manner, that gives her the medical basis for the legal charges of what we see here, attempted murder and manslaughter. And then manslaughter breaks down into different things, involuntary manslaughter, voluntary manslaughter. I think here what we’re talking about is more or less negligent homicide in their failure to administer treatment or call for treatment, et cetera. So in the charges that you read, we won’t even get into second degree assault and what have you. But there are a lot of different factors. So she’s taken the broader route at this point in time. I think I heard you read involuntary and voluntary manslaughter, which would cause—include negligent homicide. Second degree murder, and as I said before, I’m glad she didn’t step out into the first degree murder, because to prove malice and forethought there would have been quite difficult. It’s going to be hard and difficult enough to prove depraved heart and malice in terms of the distinction between first degree and second degree murder. JAY: I think it’s particularly interesting too that the Medical Examiner’s Office here, which you can see in a story on the website, Real News website right now, does not have a stellar history of generating medical evidence that actually helps charge police. In fact it has a pretty good history of being pretty lousy at creating–. PETTIT: That’s exactly right. JAY: And this–apparently the Medical Examiner’s Office here is, in the country, has one of the worst records of generating evidence that leads to charges. So again, I think we have to give some credit to the State’s Attorney. She brought in this outside police force. It was the Maryland State Police, was it? Or Sheriff’s Office. PETTIT: She said the Sheriff’s Office. That’s very, very significant that she–not only did she do her own investigation, not only were the feds here investigating, but she used another elected body, which is the Sheriff of Baltimore City. We forget a lot of times they have certain constitutional mandates which we haven’t seen exercised. And the fact that she would go over to another elected official which like her is elected and only accountable to the public is quite astounding and quite surprising, and quite a new twist in terms of my evaluation. The Baltimore City Sheriff’s Office. DESVARIEUX: Do you think she’s just trying to build her case essentially saying it’s not just me, I have all these other supporters backing me? PETTIT: I think when she talked about the quickness of her moving, what she really said when the police report or the final report was turned over to her yesterday, she was able to move so quickly because her own investigation–as she was saying, they were working around the clock. Her own investigation incorporating these other agencies, she already knew what the police were going to in fact say. Whether it be positive or negative. JAY: And she gave herself political cover with the police union and as the–you know, the police union, we haven’t talked about this yet. They issued a statement prior to her press release, but they must have known what was coming because it’s a big attack on the State’s Attorney–. DESVARIEUX: It’s an open letter from the Baltimore City Fraternal Order of the Police. And–. JAY: Yeah, I can read one of the quotes here. “Not one of the officers involved in this tragic situation left home in the morning with the anticipation that someone they interacted with would not go home that night. As tragic as the situation is, none of the officers involved are responsible for the death of Mr. Gray.” Now, what business does the union have saying that? They do not have investigators, they don’t have the Sheriff’s department. This is just knee-jerk defending of their cops without them having any basis of investigation. And they’ve been saying up until this point, trust the process, trust the process. DESVARIEUX: Yes, yes. JAY: Well the process just spoke, and now they’re doing a personal attack on the State’s Attorney. PETTIT: I think you hit it, Paul. That’s a defensive mechanism that when they anticipate what the conclusion of the State’s Attorney was going to be, they had prior knowledge. DESVARIEUX: But Paul, they also have deep concerns of the many personal conflicts they see her as having. JAY: Well that’s what they say, yeah. DESVARIEUX: Yes. They see her having conflicts with the Gray family attorney. We did a little bit of digging and we found that he was actually on her transition committee and donated $5,000 to her last election campaign. They’re citing that William Murphy and the lead prosecutor’s connections with members of the local media, and they’re also citing her husband, Nick Mosby, who’s a councilman here in Baltimore, saying that there is some political ambitions here and things of that–. JAY: Well, let’s start with one. Is the fact that William Murphy–I’m sorry, Gray’s family attorney William Murphy had donated some money, was on her transition team. Is this a conflict of interest? PETTIT: No, it’s not a conflict of interest. All of us are–especially lawyers, we participate in the judicial elections and we participate in the State’s Attorney’s election. DESVARIEUX: There’s no ethical issue here. PETTIT: As I see, no ethical issue whatsoever. Everybody that’s contributed either supported Mr. Bernstein, or in this case the State’s Attorney Ms. Mosby. Because only two people running. So we are not dissolved from participating in the political process simply because we’re lawyers and might have a case with that office. As long as there’s no intervention in the process, whether that be criminal prosecutions or in this case a civil action possibly emanating, that is no conflict. JAY: I mean, the person and persons that have a profound conflict of interest speaking about the guilt or innocence of the police officers is the leadership of the police union. They clearly have a conflict of interest because they’re there to defend their members. They should defend the rights, they should defend the process, they should insist on a fair process, not a lynching of these officers. But they have no business pronouncing on the guilt or innocence. They’re not investigators. And they’re mostly cops or ex-cops there. They should know better than they’re going to pronounce on who’s innocent and who isn’t. They have no ability to make such a case. They’re going so far beyond the role of what a union should do. And I have to say, not all police unions are like this. You know, around the country–I mean, in Madison, Wisconsin you had a police union that actually joined in with the protesters when they occupied the Assembly. Police unions don’t have to act this way. PETTIT: And especially not personal attacks on the State’s Attorney. And that’s what those are coming very close to. DESVARIEUX: So her husband’s political future, they directly point at that, that her decision is going to directly impact his political future. You see that as a personal attack. PETTIT: A personal attack, I do. DESVARIEUX: Okay. PETTIT: Whether–I hear all of their attacks as personal. And I hope that that stops and ceases at this point in time. JAY: And maybe it will affect his political future, but who knows it’s positive? You know, there’s a lot of people in the city might not like what she said. PETTIT: But they imply her–that’s an attack on her integrity, is what they’re saying, that she could be influence because of her political ambitions. That’s absurd. DESVARIEUX: All right, let’s get to another clip she had to say here at the press conference. Let’s roll that for you guys right now.
MOSBY: To the people of Baltimore and the demonstrators across America, I heard your call for no justice, no peace. Your peace is sincerely needed as I work to deliver justice on behalf of this young man. To those that are angry, hurt, or have their own experiences of injustice at the hands of police officers, I urge you to channel the energy peacefully as we prosecute this case.
DESVARIEUX: So Dwight I’m going to ask you, is this justice? PETTIT: It’s justice in terms that there will be transparency. In other words, it’s justice in relationship to the fact that there will be an adversarial proceeding, where evidence, a judge, a jury, will all come out. And our trials in America are public. So it’s justice on the basis that instead of business as usual, the matter being swept under the rug, no charges being brought, the citizens of Baltimore and the nation now will in fact see a fair and open trial. And how that results, whether it’s pro or con to her position today it’s still, that is an element of justice which we have not been afforded as a community. JAY: And I think it’s very significant that she said this. I heard you. I don’t know if she meant to say this or not, but there’s an implication that if there weren’t thousands of people saying no justice, no peace, maybe she wouldn’t or wouldn’t have been able to take the position she took today. That the role of the mass protest here–this is a victory for them. This is very significant. It’s a small step. But in the context of Baltimore it’s quite a remarkable step. But is this justice? Well, again, it’s a question that’s mutli-layered. It’s the beginning of some accountability, and that’s a big step compared to impunity, which is what more or less there’s been in Baltimore and to a large extent Maryland in terms of police violence. But is it justice in terms of the conditions that gave rise to this? The systemic police brutality is not just a problem of the police. We’ve been saying on The Real News, and many panels including with Dwight, this is a product that we don’t want to fix chronic poverty. We don’t want to deal with the levels of unemployment. We don’t want to deal with the role of systemic racism in the judicial system. We don’t want to deal with terrible schools for the majority of kids in the city. We would rather put a hammer on the consequences of such lousy social conditions. And as long as we tell the police, be our hammer, you can’t fix this. You can mitigate it a bit. What happened today will help mitigate it. Certainly police are going to second-think next time they’re in a somewhat similar situation. But this is, this is not justice that really is going to give rise to peace. And I think that’s what, and I’ve already talked to some of the people involved in the protest movement. You know, for them, what is the next step here? When will some more profound justice be found? So this is a, this is a victory, but very much a beginning of something. DESVARIEUX: I was going to ask exactly that. Was this enough justice for peace? Do you see this being enough, Dwight? PETTIT: Not with all the social ills that are still there. But Paul hits it right on the head. It’s a beginning. It’s a beginning of something that we have not been afforded in this nation. The police have been militarized to in fact keep watch over inequities in this society. And the disparities, and the economic disparities. And so no, it’s not, this is not the cure-all, but it’s the beginning of the demands for due process and equal protection at least being addressed. And it’s starting here in Baltimore City, which I have always argued per capita was the capital of police brutality. With all of its ills and everything, we are the perfect observation point for the ills of this nation. DESVARIEUX: Great. I want to remind our viewers that you should be tweeting us, sending us Facebook posts. Because we will have your questions here on air answered by our legal eagle Dwight Pettit, and we have other guests coming in and out of the studio. So please be sure to tweet us, post anything on Facebook. We’ll be sure to get it on air. One thing actually just came across Twitter. This is from [Adrienne Kazai]. She asks, are the cops going to still be getting paid leave although they’ve been indicted now? PETTIT: Well, that’s an administrative decision in terms of the police department. And then that takes us back to the police bill of rights, and so forth. So that’s a determination of the Commissioner versus the State’s Attorney’s Office. JAY: Who now has the opportunity to suspend without pay. It’s his choice whether to do it or not, but up until the point they were charged he actually couldn’t suspend without pay. Now he has the choice to do so. DESVARIEUX: And so the people could pressure–I mean, that could be one of their demands from the Commissioner. PETTIT: That’s a political decision from the Mayor and the Commissioner. DESVARIEUX: Okay. Okay. JAY: One of the big things now in terms of what’s next, I think there’s kind of two issues. One is there’s been a demand in terms of this police reform that the State’s Attorney do exactly what she did today. Because there’s been so many instances–I can’t [right] them off the top of my head. Maybe Dwight can help. Where one would have thought this could have happened before. There was enough evidence for a State’s Attorney to step in and lay charges and make it a criminal process. Where it kept being an internal review process, and it’s been the Baltimore police reviewing the Baltimore police, because the civilian review board or committee that exists in Baltimore is absolutely impotent. If you look on The Real News we’ve actually interviewed the chair of that review board, and she says it’s impotent. My quote, I remember from the story, is that–and I think she’s been on the committee or board for ten years, and they haven’t listened to a single recommendation. So the issue of community control of the police now, with teeth, where there’s the ability to hire and fire the police chief. An elected civilian review board. But not just review, like a management board that actually–the police are accountable to an elected board that has the right to subpoena. It does require as far as I understand the law an amendment or a repeal or something of the police–Law Enforcement Bill or Rights in Maryland, which I believe makes it virtually illegal for anyone to review the behavior of police other than police unless there’s charges. Once the charges and the State’s Attorney enters, then you have a criminal process, and it goes supposedly in a normal way of investigating and holding accountable. But short of the State’s Attorney actually laying charges, civilians actually have zero rights. And that–now’s the time to really make that, I think, the next big demand. DESVARIEUX: And this is not just a pipe dream. It’s actually happening in Toronto. JAY: Well, in Toronto there is a model which I don’t think is fully there, but it starts to approach the issue. The Toronto Police Services Board is a, I think a nine-person board. I think there’s three people nominated by the city, three by the province, and then together they nominate three who are not elected politicians from the community. It’s still not elected. But they hire and fire the police chief. The union signs a contract with the civilian–it’s not, it’s not a review board, it’s a management board. It has real power. It actually can tell the police, and it has just recently, a big fight just took place in Toronto over what’s called carding, which essentially is stop and frisk and ask for ID. The police–the civilian management board told the police you can’t do it anymore. If you don’t have probable cause, you cannot ask anyone for ID. And that’s people’s constitutional rights in Canada. And it was an enormous battle with the police chief and much of the police union. They didn’t want to go along with the policy. And they didn’t renew the police chief’s contract. DESVARIEUX: Okay. I just want to–. JAY: And essentially fired him. DESVARIEUX: I just want to get to some breaking news here. We have five police officers who are now in custody. Again, breaking news, five police officers are now in custody in Baltimore related to the Freddie Gray case. So let’s pick it up from what Paul was discussing. Do you feel like at the end of the day we’re not going to have real change unless the community takes control over monitoring the police force? PETTIT: That’s going to take future legislative action, and we saw what happened in Annapolis this year. The only thing that was accomplished out of all the progressive moves in Annapolis, the only thing that was accomplished, which was major, was the increase of the cap from $400,000 to $800,000, or doubling of the cap, for damages in civil proceedings. So these things that we should, should be happening, I think is the legislative process of both the City Council and Annapolis and whether that is going to, this is going to be enough to fuel those political fires. But it opens the door, as Paul was saying, and it’s a start. But one, you know, that leaves for a lot of conjecture, a lot of political moving back and forth. But one of the things that Paul raised that I did want to address, I can recall three cases off the top of my head where the Mayor so-called brought in these independent, blue-ribbon panels. And I can give you three cases right now. The Torbit case, which was a black police officer who was shot down twelve times with his badge around his neck in a fight that broke out at one of the nightclubs here. They brought in a blue ribbon panel, so-called blue ribbon panel, that exonerated the police officers in terms of that shooting and killing. One of their own. We can talk about the West case. The man that I told you about that I represent the family where he was beat to death by ten officers while he was pleading for his life. Can you imagine what that would have done had that been on live, living television. And it’s a third one that I’m trying to think of, it could come to mind later, that they brought in this blue ribbon commission and absolve the police. All this oversight, or so-called civilian oversight is basically commissions being appointed by the Mayor which come in and sweep these–the Anderson case, that’s what I was trying to think. Anderson was picked up and body slammed. They brought in the blue ribbon commission to say that the police did not do anything illegal or out of their direct orders and so forth, or their responsibilities. In all these cases we do need a civilian review board with teeth, with subpoena power, but I would like to say that that we do–we’ve also said the alternative to that was a special prosecutor that would not in fact be involved with working with the police on a daily basis. And that’s just something that would have to be done by legislative mandate. I think what we ask for the next time–. JAY: So like a standing special prosecutor’s office. PETTIT: Right. We ask that they expand the jurisdiction of the–we have a special prosecutor in Maryland for the review and investigation of political corruption. Why couldn’t we expand that jurisdiction to give them the power to in fact go into the particular municipalities where there’s a complaint and do an independent investigation? But what Ms. Mosby has done has really countered that argument and said to some extent that we can look to our own individual elected State’s Attorney’s office for objective investigation. So this might begin to squash the demand for independence and investigative actions because the State’s Attorney for the first time in the history of our city is now acting as an elected, independent body rather than a rubber stamp of the Baltimore City Police Department. DESVARIEUX: Shouldn’t we be cautious of that? Of having that much faith in the process? JAY: Well the problem is is what about the next person that gets elected? DESVARIEUX: Yeah, exactly. JAY: Which is why yes, she should play this role. Yes, this is her duty to play this role. But if you had this kind of standing special prosecutor it wouldn’t quite be as dependent on who gets elected whether or not this thing–you more structurally institutionalize–. PETTIT: I would agree with that. JAY: The more layers of this, the better. A special prosecutor, a real civilian review board. Enormous pressure on the State’s Attorney to do what Mosby did. You need all of the above. DESVARIEUX: And if we don’t have all of the above, what do we do in the meantime? How do we get there? PETTIT: I think what we do is what is–we keep pushing politically to elect those officials and to put into office those officials that are going to be sympathetic and in agreement with the demands of the community. And we hold them accountable. That’s the political process that we enjoy in this nation, is the election process. But these things, they’re difficult because they’re–outside of Baltimore City we run into a lot of conservative elements of the elected legislative process that makes it quite difficult. But that’s, the political way is the only way I see to make movement. And this should be a spark to awaken that political movement. DESVARIEUX: All right. Dwight Pettit and Paul Jay joining us in studio. Thank you both for joining us. And we’re going to actually cut to a package from our investigative reporter Stephen Janis here. He was outside in front of City Hall where he had the opportunity to meet with a former FBI agent and get his reaction to the charges against those police officers. Let’s take a look.
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