How Profit Makes Policing Immune to Reform
TRNN takes a closer look at recent efforts to reform one of the most corrupt police departments in the country, and how even the dysfunction fuels profit for law enforcement in general
TAYA GRAHAM: This is Taya Graham and Stephen Janis for The Real News.
Welcome to the Police Accountability Report. To start our show today, I want you to put yourself in the place that hundreds, if not thousands, of Baltimore City residents found themselves in during one of the worst police scandals in the history of American Policing. Imagine if you were arrested one day for a crime you didn’t commit. Imagine if a group of crooked cops planted a gun on you, or robbed you of cash and charged you to cover up their crime. Their testimony put you behind bars and left your life in tatters.
Now imagine those same officers were convicted of dozens of felonies after the fact. In fact, it turns out they are members of one of the most corrupt group of cops the city of Baltimore has ever produced, the Gun Trace Task Force, a group of eight officers who were convicted of robbing residents, dealing drugs, and stealing overtime. Now imagine that after that scandal was revealed, prosecutors agree your conviction was tainted. So you would think that would be enough to get you out of prison. Well, not in the deep blue state of Maryland. In fact, there are dozens of cases that fit this description exactly, where judges have refused to even entertain vacating the sentences of people who are still behind bars.
And that’s where our show will begin today. Because what does it say about the state of American law enforcement when being convicted by corrupt cops doesn’t warrant freedom? Because that’s exactly why Baltimore’s top prosecutor, Marilyn Mosby, was in the state capital this week, trying to get prosecutors more leeway in vacating convictions either tainted by corruption or made obsolete by changes in the law. The Real News was there. And as we reported before, when a person tries to tamp down on our nation’s law enforcement industrial complex, pushback is swift. And indeed, despite impassioned testimony from Mosby, there was plenty of pushback. Stephen, what was Mosby trying to do, and what happened during the hearing?
STEPHEN JANIS: Well, basically, she was trying to get a change in the law that would give prosecutors more leeway in terms of vacating bad convictions. Right now, as has happened with many of the Gun Trace Task Force task force cases, basically what happens is that they go to a judge and request a new trial. If the judge grants a new trial, then they null prosse the case, which means dismiss it. But some judges have been reluctant to do that, even though the Gun Trace Task Force was part of a case judges have been reluctant to grant a new trial on procedural grounds. And this is what they’re trying to fix. I mean, according to Mosby, she’s looked at like 2000 cases. They have made this recommendation in at least 150 cases, I believe, and we’ll hear this. And about 15 percent of those judges have just refused to go forward. And some of these people are in jail. So technically, she is talking about trying to right a wrong that has put someone behind bars.
MARILYN MOSBY: As a result of the testimony at a number of federal trials, as well as additional information provided to my office by the U.S. Attorney’s Office, we determine that as prosecutors, we ethically could not let convictions stand when they were based on testimony from these tainted officers. We identified 2171 Circuit Court cases involving the tainted officers and began to review them to determine whether each case was reliable without the tainted officers’ involvement. For those that were, we did nothing. For those that weren’t, we began to file joint motions to vacate, along with the office of the public defender. However, as we began filing hundreds of motions to vacate these clearly tainted convictions, some of which included cases of people who continued to be incarcerated or were walking around suffering the collateral consequences of these tainted and wrongful convictions, a number of judges have and continue to deny the joint motions on the grounds that Maryland law does not provide an appropriate procedural vehicle for granting such relief. Of the more than 151 joint motions that we have filed, 28 of these motions have been denied.
TAYA GRAHAM: But Mosby’s concerns were not limited to Gun Trace Task Force convictions. Recently, Mosby has pledged not to prosecute marijuana possession arrests. It was a controversial move that was also met with pushback when Baltimore police commissioner Gary Tuggle said he would still make pot arrests. Stephen, can you elaborate of why Mosby won’t prosecute pot arrests and how that policy is part of her legislative push?
STEPHEN JANIS: Well, her basic problem with pot arrests is that they disproportionately fall in African American communities and People of Color in Baltimore. Upwards of like 95 percent of all pot arrests, even after the General Assembly made basically marijuana just a criminal citation with under ten grams, it still disproportionately falls on African American populations, though statistics show that both white and African Americans use pot at the same rate. So she said it is absolutely criminal for me to be charging people when the crime itself is applied disproportionately. But even more so, what she needs to do is she wants to vacate minor marijuana possession cases going back a couple of years, I think going back five or six years, because she says the law should not apply. It was an unjust conviction, an unjust charge. She wants to get rid of it. But the legal system, the judiciary, is again pushing back.
So she’s asking for the power to actually go back and right that wrong by herself unilaterally without–you know, a judge will eventually have to at least start the process, I don’t want to say unilaterally, but start the process so that she can vacate these convictions and people can be righted for the wrong that has been committed against them.
TAYA GRAHAM: Let’s take another look at what she said.
MARILYN MOSBY: As the only office in the state of Maryland with a conviction integrity unit that is dedicated to reinvestigations of actual claims of innocence, my prosecutors do not have the tools to file motions of those wrongly accused, convicted, and incarcerated. But in the interest of justice, we should. Furthermore, we need to be a vehicle for prosecutors to ask a judge to vacate prior convictions for crimes that are no longer a crime, such as marijuana possession. As prosecutors, we should never be complicit in the discriminatory enforcement of laws where certain demographics are criminalized and yet others profit from the same behavior.
TAYA GRAHAM: But soon after Mosby was finished, there was pushback, and it came from a person familiar to The Real News. Testifying against the bill was Joe Riley, the Caroline County State’s attorney who represents a lobby group for all prosecutors statewide. And he came out against the bill, saying it would open a can of worms. Let’s take a look at his testimony.
JOE RILEY: If you as the legislature wish to vacate all previous applicable possession of marijuana and paraphernalia cases, then you should do so. To leave this to individual jurisdictions is to ensure that inconsistent vacature of these convictions occurs. It will assuredly politicize our discretion on the issue.
TAYA GRAHAM: So Stephen, what do you make of Riley’s pushback? Why wouldn’t a prosecutor want more discretion and more power?
STEPHEN JANIS: That is really the one hundred million dollar question, because basically what he was saying was that this goes too far, prosecutors shouldn’t have this power. And his argument was kind of circular because, he was saying then there’ll be this misapplication of the law, or laws will be applied differently. But the whole idea of a prosecutor is to have discretion in how to apply the law. I mean, it’s basically the fundamental role of a prosecutor, to take a police investigation and say, “You know what, this is worth charging or this isn’t.” So there’s tremendous, I think, ambiguity about what he’s saying. And it’s also kind of confusing, because why wouldn’t he want this power for himself? I mean, you’re actually granting prosecutors more flexibility, more ability to enforce the law, and more ability, really. But what’s really critical is what Mosby wants is mostly the ability to right wrongs within the justice system.
TAYA GRAHAM: But Riley has also come under scrutiny for his role in the case of Anton Black. As we’ve previously reported, Anton was a 19 year old track star who was killed by police during an arrest. Anton was chased after a white woman called police, alleging he had kidnapped a 12 year old boy who turned out to be his cousin. When police arrived, they chased, tasered him, piled on top of him, and Anton died. The Maryland State Medical Examiner ruled is death an accident, but an outside pathologist we consulted said his death was a result of positional asphyxiation, the direct consequence of his arrest. However, this is not why Riley appeared at the hearing before the House Judiciary Committee. Instead, he was there to argue against Mosby’s proposal. So just to recap, the prosecutor who declined to hold police accountable in the case of Anton Black also was testifying against, and let me repeat this, against hoping Mosby overturn wrongful convictions. Stephen, what does that tell you?
STEPHEN JANIS: Well, it tells me that the criminal justice system is flawed and sort of beholden to the power of putting people away, but not good at sort of policing itself and making sure that there is an outlet for people who are convicted wrongly or have wrongful convictions to right them.
TAYA GRAHAM: But the irony of Riley’s appearance doesn’t stop there, because shortly after his testimony, it was Anton Black’s family who appeared before the committee to support a different bill. It’s called Anton’s law, and it would force police to disclose the details of police involved death investigations and also pass disciplinary records. The testimony from Anton’s sister Latoya was passionate. Let’s listen to his sister testify.
LATOYA HOLLEY: We’ve been broken since September 15, 2018. That is the day that Anton was taken from us. We have to battle for the truth, and transparency from the police department, we shouldn’t have to battle for that information. Your favorable vote for House Bill 1011 would be a step in the right direction and an effort in restoring trust and transparency back within our communities and law enforcement agencies. Thank you.
TAYA GRAHAM: So Stephen, how does this law work, and why did legislators think it was necessary?
STEPHEN JANIS: Well, basically how the law work would force more disclosure during police investigations and also force the records of police officers to be made public in ways that it’s not at this moment. One of the reasons that’s it’s critical to the Anton Black case is because of the involvement of Officer Tom Webster, who was the officer who attempted to arrest him and then chased him. And Officer Webster had a very extensive record when he was a police officer in Delaware. There were like 29 complaints against him that was not revealed to the State Police Certification Board when he was hired. So it’s caused a lot of controversy in the community, because the African American community in Greensboro Maryland, where Anton was from and where he was arrested and where he died, was very against hiring this officer.
TAYA GRAHAM: Now, wasn’t because they saw a video of Officer Tom Webster interacting with someone he was arresting?
STEPHEN JANIS: Yeah. And we’ll put the video on the screen right now. Basically what he did is he kicked this suspect in the jaw, as the suspect was really cooperating, broke his jaw. He was indicted for second degree assault, but he was found not guilty. But what came out of the hearing was that Webster was pretty much thrown out of Delaware and said he couldn’t work there as a cop. Somehow, he sneaked through the system here. And I think that’s part of what this bill is trying to address. The second part it’s trying to address is the fact that it took five months for the family to get any information at all about the investigation. I mean, for four or five months, I mean, he was he was killed on September 15, and it wasn’t until end of January that the body camera footage was released for the autopsy was completed.
TAYA GRAHAM: And didn’t it actually take Governor Hogan’s intervention to make sure that the family got the information?
STEPHEN JANIS: And that’s what they were talking about. Governor Hogan said, “Hey, let’s get to the bottom of this, the family deserves answers.” And the family got answers. But what they were saying was there should be some sort of mechanism for the family to find out about these investigations without having to turn to the governor.
TAYA GRAHAM: Now I want to highlight an exchange I think really embodies what’s always missing from this discussion. It was shortly after Police Chief John Fitzgerald testified against Anton’s Law and he was questioned by delegate Waneka Fisher. Let’s listen.
WANEKA FISHER: Isn’t it true that all employees don’t have the power to kill other people here in the state of Maryland? And with the power to kill, and be executor, judge, and jury, I think there’s a higher standard.
JOHN FITZGERALD: But that’s a power and authority granted by the state. This body gave that to those employees, and as such, you have a bigger responsibility to protect those individuals who are out here doing the job on your behalf.
WANEKA FISHER: I do, but I also have a responsibility to protect the citizens of Maryland. That’s why we’re all here to discuss this bill today.
TAYA GRAHAM: So Stephen, the reason why I want to show this clip is because it raises a point that I don’t think can be over emphasized. And that point is that police officers have the right to shoot someone, to execute someone on the spot. And whenever there is a move for any kind of transparency, there’s always pushback. Why are we seeing this pushback?
STEPHEN JANIS: Well, it’s a great question, because I think she brought up a point that rarely gets brought up and that you’re bringing up, is that that’s the kind of decision that you can’t reverse. Once you decide to take a life or use lethal force, you can’t take it back. And given that, which is incredible power imbued by the citizens of this city or the state or wherever, every time there’s a request for more transparency or a fight to have police have to reveal things like disciplinary records, use of force reports, there’s always this pushback. And I think the fact that she raised that was really important, because you’re talking about someone who died. You can’t reverse that, there’s no judicial process, there’s no second-guessing.
TAYA GRAHAM: There’s no way to make the family whole again when this happens.
STEPHEN JANIS: So I think it’s kind of strange, I think, that police would push back, but also telling about what’s going on here, the dynamics of it. Because even if you look in the Anton Black case, there were many instances where the police could have deescalated that. Would they have been more receptive to de-escalation if they knew there were going to be consequences if Anton died? I think, in a certain sense, this idea that it’s carte blanche, which is interesting, because in the clip you hear the Vince Canales, who is the FOP Maryland president saying, “Well, that’s why we have to be protected.” What’s happened is this twisted sort of system that says “because we can kill people, we need more protection than the people we’re about to kill.”
STEPHEN JANIS: And that imbalance, I think, creates a situation where the officer might be coming up–let’s show the body cam right now where Officer Webster comes up to the car and Anton Black is inside of it. At that moment, he has a lot of opportunity to deescalate. Anton has locked himself in the car, he clearly isn’t going anywhere. If he had the keys he would have started the car already. But he breaks a window and he tasers him. Why? I mean, as his father has said many times, Anton hadn’t stabbed anybody or shot somebody.
TAYA GRAHAM: Right. He wasn’t reported having any kind of weapon.
STEPHEN JANIS: Right. So it strikes me that not having accountability perhaps might prompt officers say, “You know what, I have every right to use force in any way I want.” And I think that’s why what the delegate said was so important. Because we have to remember that they have the right to take our lives, and most of the time, no one says anything. So you’ve got to think about that. That’s an incredible power, but it should come with incredible responsibility. I think the point the delegate was making is that it doesn’t.
TAYA GRAHAM: Finally, I want to discuss something we uncovered that relates to a topic we discuss often on this show, and that’s how policing is often not about public safety, but profit. This subject came up when we were interviewing civil rights attorney and Real News board member A. Dwight Pettit. During the interview, he brought up a legal strategy the city is using to avoid paying out settlements to victims of police brutality. Let’s play that clip.
A. DWIGHT PETTIT: The scope of the employment, before he even dealt with the facts of all the people that had been injured, maimed, jailed, lost careers, lost livelihoods, he just came out and blanketly said he’s not going to compensate for those people. Total disregard for the citizenry of Baltimore City. He’s in the Court of Appeals, on the Federal Courts defending all the actions that are being brought in terms of the Gun Task Force. Every action that we’ve had where we’ve won and been successful in the trial of those cases or what have you, he has in fact filed appeals on technical grounds.
TAYA GRAHAM: So Stephen, his comments prompted you to do a little bit more investigation, a little bit more digging. What did you find?
STEPHEN JANIS: Well, it was really interesting, because I was thinking one of the things that happens when the city constantly appeals is you’re generating legal fees. And in general, the city hires outside legal counsel to do these kind of cases. So I filed the Maryland Public Information Act request with the city to find out how much money they had spent hiring outside law firms. And let’s show the graphic on the screen right now. This is the response of the city. So over the past three years, from 2016 to 2018, the city has spent roughly 6.7 million dollars defending these lawsuits to the bitter end. In other words, filing appeals and filing technical motions that delay payment to the victim.
And so, I thought, wow, this is really exemplar of you have what would be, I think arguably, predominately African American citizens who have suffered harm at the hands of police, including Ivan Potts, who was arrested by the Gun Trace Task Force and illegally convicted. And yet, you have the money that they don’t want to pay to the victims going to law firms, big law firms which I would say probably are predominantly white, although I haven’t checked that out, but predominantly. And so you see how the rich get richer with policing and the people who need this money, need this sort of restorative justice, as it were, are being denied that. And the city taxpayers are paying–during the period from 2010 to 2016, the city spent 12 million dollars on settlements. So it’s an incredible amount of money. And I think it just shows that the city really perhaps is wrong in its policy in terms of helping people who have suffered from police abuse.
TAYA GRAHAM: So basically, this is a straightforward example of how destructive policing is to African American communities. While the city refuses to compensate victims of police brutality and false arrests, they are enriching primarily white-owned law firms in the process. And it gets worse, because as we’ve stated before, the city is refusing to take responsibility for the actions of the Gun Trace Task Force. The city has taken a controversial legal position with the Gun Trace Task Force which only makes the wealth transfer we’re discussing even more stark. Stephen, can you talk a little bit more about this wealth transfer that we’re seeing?
STEPHEN JANIS: Well, I think the basic thing is that the feeling is within the community that policing has been so bad in Baltimore for so long, and spent so much money, because bear in mind, we spend more in policing than we do on education out of the budget, it’s about two to one, and about half a billion dollars of the city budget goes to policing, that something has to be done to restore that community because the destruction is so widespread. I mean, if you look at the case of Ivan Potts, he was arrested, he spent two and a half years in jail for a crime he didn’t commit. His life has been ruined. And as Marilyn Mosby said, she’s looking at 2000 cases based on the Gun Trace Task Force. That’s a lot of people.
And the idea that we would put this money into fighting the lawsuits–because there’s already a state cap. I mean, the city, technically, as long as it’s a civil lawsuit in the state court system, can only pay out a certain amount of money, and they’re not hundred million dollar verdicts. One has to question why they wouldn’t look more towards restorative justice and some sort of reparation for the population rather than continue to focus on paying law firms to fight this to the bitter end. And I think it just raises tremendous questions about maybe why this city’s policies are just wrong headed at this point given how much the citizens have suffered from policing and given the Department of Justice report.
TAYA GRAHAM: Right. And it’s not just the Gun Trace Task Force. The Department of Justice did an investigation and gave us a report showing that there’s been unconstitutional, racist policing in Baltimore for years. So it doesn’t just end with the Gun Trace Task Force. We’ve seen a lot of examples of this, including Zero Tolerance.
STEPHEN JANIS: Yeah. I mean, Zero Tolerance was a seven, eight, nine year policy of arresting 100,000 people a year. I mean, for seven years it was 100,000. And as a Department of Justice determined, many of those arrests were illegal, most of them were focused on African American communities. So it’s hard to understand how the city expects to right the wrongs or to change the course of the city if it doesn’t address these issues in some substantive way. I mean, if you multiply Ivan Potts’ case by hundreds, if not thousands, you can only imagine the damage it’s done to the people who live here. And so, by continuing to funnel money into a legal system to fight this, it’s just more wasted money in my opinion.
And the more money spent on policing–I mean, think about it. The police department–we had the death of Freddie Gray, we had the Justice Department report, we had the Gun Trace Task Force, and yet the police department keeps getting more money and more money is spent to defend it. What sense does that make? How is it going to heal a community? It’s absolutely absurd.
TAYA GRAHAM: Stephen, it’s really stunning how the system works. Thank you so much for joining me.
STEPHEN JANIS: Thank you.
TAYA GRAHAM: And we’re going to continue to cover this story. I’m your host, Taya Graham. Thank you for joining me at The Real News Network.