How the Criminal Justice System Protects Police
Todd Oppenheim compares the treatment of the six officers charged with killing Freddie Gray to the clients he represents as a Baltimore Public defender
JAISAL NOOR, PRODUCER, TRNN: Welcome to the Real News Network. I’m Jaisal Noor here in Baltimore, where we’ve been closely covering the trial of William Porter, the first of six officers charged in the death of Freddie Gray.
While we cover this trial in the upcoming weeks and months, we don’t want to lose sight of the bigger picture here, of the broken criminal justice system many would say here in Baltimore, which takes countless people, majority African-American, through its gates every year in Baltimore. It costs taxpayers hundreds of millions of dollars, and enacts an enormous social toll on this city.
Well, now joining us to discuss this is someone who knows this system very well, Todd Oppenheim. Todd is an assistant public defender here in Baltimore City. He’s also running for circuit court judge in next year’s election. Todd, thanks so much for joining us.
TODD OPPENHEIM: Thank you for having me.
NOOR: So Todd, you wrote this piece in the New York Times which has gone viral, about the injustice of this criminal justice system here in Baltimore. And for myself, who I’ve been in this trial but have also covered other trials in Baltimore, what is striking and very obvious is how these six officers are being treated very differently than the average Baltimore resident that gets processed through the system, starting from the very arrest they had and the bail they were given.
OPPENHEIM: Absolutely. It’s not exactly equal justice when you compare what’s happening to them versus everyone else. A larger point, though, that I want to make from the article is that the way the officers are treated, it almost inspires us to know that there is hope. They’re treated the way everyone else should be treated. It kind of shows that the criminal justice system can work. The unfortunate thing its that it’s not working for a lot of people in Baltimore, mainly black people, mainly people who are indigent.
NOOR: And so one of those specifics that you go into in your article is about the arrest and the bail. Because these officers were involved in killing somebody, and in many cases you’re not offered bail or the bail is set much higher. These officers were also able to make that bail, as well.
OPPENHEIM: Yeah. There’s a huge discrepancy there between what happens to the officers and what happens to the normal person. If you look at the way they were able to turn themselves in, giving them an option to turn themselves in, you never see that for our clients. They’ll just go and arrest them, especially for a homicide.
And then the bail amount that was set. They may look like high numbers, but they were bails that the officers could post. They were reasonable amounts. And they’re able to get out before trial. What happens with our clients is we’ll see exorbitant numbers set on their bails. And when you think about it, the bail presumes that someone’s going to post it and get out before trial. It presumes that someone will be released. That’s not what happens. When you set an amount that they can’t make, you’re essentially setting it at no bail, and you’re preventing them from having any chance of posting it at all. So it kind of takes away that possibility just for the people that I’m representing, for the poor people, mainly affecting black people, again.
NOOR: And so this was kind of brought to the international spotlight after the uprising, the unrest in Baltimore. And yourself, you represented some people charged with rioting that got bail in the hundreds of thousands of dollars. And some of those people were not able to get out, were not able to meet bail. One case that I covered, Larry Lomax, he was held for over a month because he could not meet his bail.
OPPENHEIM: Yeah. It’s crazy. I couldn’t help but thinking when I was in the bail review for one of my clients who was charged during the protest that the decision being made by the judge to set such a high bail, to keep him in jail for such a ridiculous charge, his charge got dismissed. It was completely unprovable. He was at a relative’s house in the wrong place at the wrong time when they were just kind of grabbing people. But it was a huge point in my mind that stuck out that the very issue that the judge was making the bad call on, it’s basically what is at the root of the uprising. I mean, those problems and setting those amounts of bail and not understanding what we’re doing, I think that’s why people are so upset in Baltimore. It’s why we need change.
NOOR: And so the offices are now, the trials are underway. William Porter’s jury selection is underway right now, today. How has the process for his trial been different than some of the people you’ve represented?
OPPENHEIM: Well, for one thing, he’s in trial. And we are within a year of his arrest. That doesn’t happen for many of our clients. So it’s moved through the system much quicker. The bail issue. He’s out on the street, he’s able to work with his attorney, which we’re not often able to do. I mean, we can go to the jail and visit our clients who are locked up. But nothing compares to being able to have someone come into your office, sit down, go over evidence, if there’s something that’s on a computer or something that you need to get through security at jail, a lot of the times we can’t do that without special permission.
So the ease of working with a client who’s not incarcerated is something that can’t be taken for granted, and the officers in this case have that. They’ve been able to argue motions before trial, which is huge. It seems like a basic concept. But there are so many times when we have to figure out strategy on the fly because we’re arguing motions on the day of trial. And I’m saying that from a defense perspective, but that goes for the state as well. It’s not fair to the prosecutors either to try to get things together in a typical case at the last minute.
NOOR: And you know, there’s the issue of the jury pool. Because just in these first two days, the judge is going to have a chance to question at least 150 jurors. Is that typical?
OPPENHEIM: No, it’s not. We will normally–especially for this, for Officer Porter’s charges. It probably wouldn’t be a pool of more than 100 people. And the numbers vary depending on the availability of jurors each day, what’s going on in different courtrooms. But what’s happening here is that, especially yesterday, today it’ll be a little lighter on the rest of the cases, they’re drawing so many jurors into the courtroom for that case that it affects who can go to trial in the other courtroom. Just like with the other issues with the trial I’ve been talking about, it’s almost like ignoring that anything else is going on in the system now besides this officer’s case.
And I’m not saying that it’s not important, or a huge issue. But we can’t lose sight of whatever else is going on in the criminal justice system.
NOOR: And even a huge media presence, you were writing how that’s going to cause delays for other people, other families that are trying to get access to this court system.
OPPENHEIM: Yeah. I challenge anyone to try to get downtown now, or park around the courthouses. It’s a zoo, it’s a mess. The security measures. I will say that they’ve been a little bit laxer than they were during the pre-trial motions, which is strange because they kind of affected the way the things that were operating then. But it’s still, it’s still a delay to get in the courthouse because of the way Calvert Street’s blocked off.
NOOR: So we know that you are preparing to–you want to challenge the system. You are running for circuit court judge. We haven’t had a chance to invite all the other candidates on, so we’re going to, we’re not going to discuss your candidacy right now, but if you can talk about what some of the things that you would like to see changed, you know, that things that you think are the most important things to change in the circuit court system, specifically, here in Baltimore.
OPPENHEIM: Absolutely. Equal justice is what I’m after. And what that deals with is three main points. I think first that has to be addressed is the bail system. Second is the way legal stops and seizures occur on the street. And third is the war on drugs. It has to end. With the bail system I’m in favor of ending money bail, but even under the system we have, like I was discussing before, there is discretion that the judges have to not set exorbitant bails for indigent people. High bail is like no bail for most poor people. And there’s options. And those options for pre-trial release save the taxpayers money. People don’t have to be locked up before trial.
In terms of the stops and seizures on people, I see too many bad rulings, and we call them suppression hearings where we try to argue whether a stop or search is illegal or not before trial. Too many bad rulings that validate police misconduct. And what might be, what might seem innocuous in a courtroom, maybe just going through someone’s pockets, something harmless, that could snowball. It could snowball into putting hands on someone. It could snowball into hitting someone. It could snowball into shooting someone. And that doesn’t apply to every officer. Most cops are decent officers. But the rulings that start in court can have a tremendous effect on the way policing is done on the street.
NOOR: And so I wanted to follow up with, on one point of that, so how much of the bail that is set, how much of that is the power of the state’s attorney, or even the police, as far as how much of that is related to the charges themselves and how much discretion does the judge really have to set that bail?
OPPENHEIM: Well, there’s no true rubric that the judge has, like this charge requires this amount. So the state definitely has their, their portion of the bail review. They can argue for whatever part they want. There’s a neutral pre-trial services representative there that often ends up making a recommendation that’s totally skewed towards the state. And then the charge itself, unfortunately, is what a lot of judges get wrapped up into. They don’t want to have their name in the newspaper letting someone who’s charged with something perceived as violent out, and then have them do something while they’re out on bail. Many times, though, it’s a misperception of how serious that charge is.
And I think that comes from experience in the courtroom. I have the experience to know what is a real charge, what is a fabrication, what’s going to play out in court, and what we need to direct our resources towards.
NOOR: Todd Oppenheim, thanks so much for joining us.
OPPENHEIM: Thank you.
NOOR: Thank you for joining us at the Real News Network.
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