By Baynard Woods
Baltimore City Chief Deputy State’s Attorney Michael Schatzow walked into Courtroom 523 in Courthouse East on a brutally hot day eight days before the primary that would determine his future. Schatzow is State’s Attorney Marilyn Mosby’s number two, and the fact that he was in this shuttered courtroom watching Assistant State’s Attorney Andrea Mason explain why she had not disclosed a video that could have been helpful to the defendant in a three year old case was significant.
This year’s race for Baltimore City State’s Attorney has been exceedingly contentious as two Democrats—Ivan Bates and Thiru Vignarajah—seek to take the job of top prosecutor from Marilyn Mosby. Mosby has a lot of enemies. She was catapulted to national fame when she prosecuted the six officers involved in the death of Freddie Gray. But then Schatzow, the man who just walked into the courtroom a week before the election, lost enough of those cases that they threw in the towel. They never re-tried one of the officers, William Porter, who was granted a mistrial after the jury could not reach a decision.
And the murder rate has skyrocketed. Mosby won the office from Gregg Bernstein, blasting him for the homicide rate. “It’s no wonder that these street terrorists have absolutely no fear of being convicted, and it is empowering them to kill again and again,” she said, blaming Bernstein for the murder rate, which in 2014 was 211 homicides.
By June 7, 2015, six months into Mosby’s term, 212 people had been murdered. Just before 5:00 a.m., Kevin Jones was the 213th victim of homicide.
The story of Jones’ death would become inseparably intertwined in the trajectory of Mosby’s first term and shows the perils of prosecution, where true justice is difficult to gauge in an election where candidates tend to focus on wins and losses.
If the case against the officers charged in the death of Freddie Gray shows what happens when police and prosecutors don’t work together—Schatzow accused lead detective Dawnyell Taylor of “sabotaging the case”—the case that connects Keith Davis Jr. to the death of Kevin Jones shows what happens when they do, and presents a number of pitfalls to be avoided by whoever takes the office.
Late in the campaign, the rhetoric has turned tough on crime, asking voters to determine who will be able to lock more people up more effectively, but the Davis case shows the dangers of a determination to win at all costs.
Police fired 43 shots at Davis, hitting him with three bullets, on June 7, 2015. He was the first person shot by Baltimore police after the death of Freddie Gray.
It is hard to imagine what would have happened in June 2015, if it came out that Baltimore Police shot an innocent man three times, after chasing him and firing recklessly into a garage. A growing faction of people see the Keith Davis case as a political prosecution. This time to protect the police who made a mistake.
Over the last three years, the case has gone through countless turns. At first, Davis was charged with robbing a cab driver, having a gun, fleeing from police and shooting the gun at them. Later, it came out that he did not fire the gun. He was found not guilty on all of the other charges—except for possessing the gun, which had his bloody palm print on it.
He always claimed he did not ever have the gun and was running with a cellphone. The Gun Trace Task Force trial earlier this year made the defense’s theory that the gun had been planted seem far more probable after that trial revealed widespread corruption in a special unit—including instructions by a sergeant to keep BB guns in the car to plant in case you shoot an innocent person.
“We have a 100 percent admission by a former Baltimore City Police officer that guns are occasionally planted,” said Natalie Finegar, who is representing Davis, describing what had changed in the case when Baltimore’s Civilian Review Board sustained excessive force complaints against all four of the Baltimore police officers who shot at Davis.
But the State’s Attorney was adamant.
“He was tried in front of his peers, a jury of his peers. And a jury of his peers determined that he was a felon in possession of a handgun,” Mosby told the Real News. “That gun was tied to what is now a pending murder case.”
Davis was charged in the murder of Kevin Jones. There was a mistrial, then he was retried and convicted on the strength of the testimony of a jailhouse informant. But because the state did not disclose pertinent information about the informant, the case was overturned and a new trial granted.
So now, last week, in his third trial for the murder, on the last day of scheduled testimony, it came out that the state had failed to disclose a video of the victim, Kevin Jones, walking to work early that morning—followed by a man who pulled a mask up over his face.
That’s why Schatzow was in court watching Mason fumble around for a justification for an undisclosed video. He caused a moment of agitation—perhaps unwittingly, or perhaps it was intentional—when he sat down in the same row with Davis’ family. Davis’ wife Kelly has been one of Mosby’s fiercest critics. At the two ends of the bench, they were like bookends—Schatzow a white man with pale skin and curly white hair and Kelly Davis, a black woman with long black hair, her face still and poised like a statue.
When Kelly Davis was recently ejected from a debate among the candidates for State’s Attorney, Mosby quipped that “repeat violent offenders don’t like me.” Kelly Davis has never been convicted of any crime.
As Mason tried to explain why she didn’t give the defense a video that may have shown the murderer—or that maybe she did, at least to the old lawyer—the judge was having none of it.
Then there was some acknowledgement that while the CDs containing the surveillance footage may have been provided to Davis’ earlier lawyer, it had not been provided to former public defender Natalie Finegar, who only discovered what it had contained Friday and was now in a sleepless fury, having spent the weekend trying to readjust her case.
“At one point you said you did provide them,” Judge Althea Handy said, frustrated. She paused. “Do you think they should have been provided?”
“And you didn’t provide them,” the judge said. “If you could just acknowledge that, we could move on to a remedy.”
The judge called for a recess during which she would decide the remedy and when she came back, she ruled that it had been a discovery violation, but not one that would require the entire case to be thrown out with prejudice (meaning they can’t try you again). But she was willing to grant a mistrial, or grant a continuance of two weeks for the defense to deal with the material. Or the case could go forward, giving the defense a chance to show the video to the jury. The case went forward.
On the surface, it was a victory and Schatzow left. He did not need to stay to see the actual outcome of the case.
But as it moved forward, has moved forward, the Davis case seemed to mark a failure to prosecute homicides and hold cops accountable.
Though neither party would want to admit it, with the Davis case Mosby is following a lead set forth by one of her challengers, Thiru Vignarajah, former Deputy Attorney General who is running for the office, and has been in charge of arguing for the state in its attempt to deny Adnan Syed, who was convicted of murdering his ex-girlfriend Hae Min Lee in 1999.
The case became a global phenomenon thanks to the podcast Serial. Syed was granted a lengthy post-conviction hearing in 2016 to determine whether his lawyer had provided him sufficient counsel when she failed to interrogate a potential alibi and did not ask about a cover letter on the cell phone records, which were novel in courts at the time and seemed to place Syed at the scene of the burial, but contained a cover letter clearly stating they were not to be used for location purposes.
Vignarajah, who attended the same high school as both Syed and Lee, prosecuted the case with extraordinary vigor. Rabia Chaudry, a lawyer and friend of the Syed family, became Vignarajah’s worst nightmare—bringing the case to Sarah Koenig, the This American Life producer responsible for Serial, and later creating her own podcast, Undisclosed, which marshalled hundreds of online sleuths and whipped on a social media fury of #FreeAdnan on Syed’s behalf. Justin Brown, Syed’s lawyer, called it the first “open source” case. Online forums called people who believed Syed did it “guilters,” as if his guilt was akin to being a “truther” who believes 9-11 was an inside job.
Though some of the attacks against Vignarajah were vitriol, hundreds of thousands of people around the world came to believe that, even if Syed was not innocent, he did not receive a fair trial.
One of those people, eventually, was Judge Martin Welch, who granted Syed a new trial in June 2016. Syed had already done 17 years in prison, but Vignarajah appealed the ruling. Last March, the Court of Special Appeals, Maryland’s second-highest court, upheld the ruling.
Attorney General Brian Frosh and Vignarajah asked the state’s highest court to reverse that ruling. Vignarajah, who once worked as the Deputy AG is now described as a Special Assistant Attorney General and works as a private attorney, finishing this case for the state only on a freelance basis. Vignarajah was caught on an undercover video by the sleazy sting team Project Veritas passing on information about the AG to an undercover operative he was hitting on. There is no indication that this had anything to do with his departure from the office.
“It is certainly not popular in some circles, but what’s popular is not always just, and what is just is not always popular,” Vignarajah told the Real News of his insistence on denying Syed a new trial. “The State’s Attorney’s obligation, the Attorney General’s obligation, is always and only to do what is just.”
Like Mosby, Syed is running as a progressive reformer, but the Syed case has cast him as a vindictive prosecutor, set on victory and his own career more than justice.
Ivan Bates, a prominent defense attorney who worked as a prosecutor from 1996 to 2002 and is also seeking the office, has said he would not continue to prosecute either the Syed or Davis case.
“I would explain to [Lee’s family] that we have a better chance of trying to find your daughter’s killer by starting all over,” he told Rolling Stone. He added that Vignarajah ethically was not in a position, as a private attorney running for the State’s Attorney’s Office, to ethically decide whether or not to appeal the decision for a retrial.
He hit even harder at Mosby’s decision to prosecute Davis again. “The mistrial in the case of Mr. Keith Davis, Jr. is an example of the malicious prosecution of black men by Marilyn Mosby’s administration,” he wrote in a statement. “This third trial revealed that the Baltimore City State’s Attorney’s Office knowingly withheld surveillance videos from evidence for three years and then lied about it in front of a jury.This unethical behavior calls for disciplinary action.”
He ended by characterizing Mosby’s strategy as “win at all costs.”
Vignarajah blasted both of his opponents for politicizing the case, calling it “reckless and not what prosecutors do.”
In the closing weeks of the campaign, Vignarajah took up a Twitter campaign against both of his opponents, arguing that Mosby was a “million dollar mistake” and that Bates was “among the worst prosecutors in Baltimore City history,” when he was a prosecutor.
Bates had taken to claiming that he had “never lost a murder case,” while Mosby had never even tried one.
Vignarajah challenged this claim. Mosby again took his lead and followed up with a hit of her own. “It’s an outright lie,” she said of Bates’ record. “What we know is he’s running on a record of being undefeated.”
Bates came out defending himself, claiming that when a case is appealed, the prosecutor is often removed from CaseSearch, Maryland’s online database of criminal cases, but remains in the case file. For instance, in the original case for Adnan Syed in CaseSearch, no prosecutor is listed and so the case could not be searched for by prosecutor. Bates also put reporters in touch with Kevin Turner, a retired detective that he worked with on the case of Wesley Whiting, who was convicted for murdering a correctional officer he had been sleeping with in 2001.
“Me and Ivan basically did everything on the case together–go through all the evidence with a fine tooth comb,” Turner said.
But this focus on how many homicides each candidate has prosecuted is failing the city and failing to actually address the homicide crisis.
If we directed money from police and prosecution into services, there would also be fewer homicides. Mosby’s Aim To B’More program that offers non-violent felony drug offenders a second chance (including job training and other services) is a start. There are also some truly progressive policies proposed by Philadelphia’s new District Attorney Larry Krasner, who came to office on the back of a movement pushing for real reform. Krasner has already implementing a number of groundbreaking directives to his prosecutors, including requiring them to disclose the cost of incarceration, explaining that the cost of one year of unnecessary incarceration is the cost of one year’s salary for a beginning teacher, police officer, or firefighter, or social worker and that a three year sentence would cost the taxpayers $126,000.
“I don’t know that it’s critical to communicate that in every case to a jury,” Vignarajah said when I asked him about it. “I do think it’s really important to be reflective about that internally, to communicate that to the public, to make clear your priorities. I’ve made it very clear that we’re not going to be wasting resources prosecuting these petty offenses when these victims of addiction need support and assistance and substance abuse counseling.”
“It depends on the crime,” Bates said of the same policy. He approved of a more liberal use of electronic home detention, allowing prisoners to live at home with their families and go to work. But wouldn’t go as far as Krasner. “I also think in some of the sentences, they need to be, show that they’re going to be punished.”
It is this desire to allow the voters to feel that the murderers have been punished that is driving the debate. We need to solve the homicide crisis in the city and there are strong arguments that actually solving homicides and convicting people for them, far more than ShotSpotter (™) and algorithms and other predictive policing tools, prevent future homicides. “Where the criminal justice system fails to respond vigorously to violent injury and death, homicide becomes endemic,” Jill Leovy writes in her book “Ghettoside.”
But the focus on simply scratching names off the board, results in the kind of drive for statistics that enabled the Gun Trace Task Force and the bungled case of Keith Davis.
When Mark Veney, a Homicide Detective for the Baltimore Police Department, took the stand in a bow-tie and glasses he seemed both weary and defensive as Natalie Finegar, Davis’ lawyer, hit him with a fury, asking if he had testified more than once now that the tapes had no investigatory value. He said that he had but that something may have changed.
Veney, it turned out, had not taken notes when he watched the video. “The video would speak for itself,” he said, sounding angry.
Finegar showed him the video. On the screen, the victim, Kevin Jones, walks by on his way to work at Pimlico.
Shortly after Jones, another man walks wearing black pants and white shoes—not the clothes Davis was arrested in. He brings his left hand to his face.
“It looks like that person just put something over his face to conceal his identity,” Veney confirmed.
Finegar pushed him. There was a man with a dog on the tape. Did you see them both look toward the shooting.
“He is looking toward the race course, yeah,” he said.
He admitted he never tried to find the man with the dog, even though they had a nickname for him. “You just don’t go arbitrarily and grab people and assume if you live in Park Heights” that you would have information about a crime, Veney said.
It was impossible not to think of the nearly week-long lockdown of Harlem Park after the death of Sean Suiter last November.
“But if you look at the video and see someone in the video that might be a witness?” Finegar asked, stunned.
Veney ultimately said that talking to potential witnesses was a “distraction.” He alluded the number of homicides that summer and seemed to intimate that perhaps he had just not seen its importance.
It was hard not to walk out of the courtroom that day and feel like neither the police nor the SAO had put half as much time or money into ascertaining who the killer was as they had making sure that Keith Davis was charged.
“It’s not about Keith Davis for me,” Mosby told the Real News. “It’s about Kevin Jones.”
“We are committed to obtaining justice for the victim in this case so we will re-assess and make a determination about the next steps soon,” Melba Saunders wrote in a statement after the mistrial.
Now they’re faced with the challenge of trying the case for the fourth time, while the real killer could have been at large all of this time, if the man in the video in fact did it. We may never know, because the BPD and the SAO were convinced that they had their man—and they had averted a crisis