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Crime & Justiceby Todd Oppenheim12:30 pmJun 11, 20180

Setting the record straight on the state’s attorney’s race

OP-ED: A public defender takes issue with Marilyn Mosby’s campaign as a reformer

Above: Marilyn Mosby speaks at a candidate forum shortly before she won the Democratic Party primary for her second term in office in 2018. (WMAR)

“Reforming a broken system for equality and justice.” That phrase, appearing on one side of a mailer sent out to Baltimore residents last week, sounds like a tag line from a progressive non-profit like the ACLU or a grassroots think-tank like Leaders of a Beautiful Struggle.

Nope. Marilyn J. Mosby, in her reelection bid for Baltimore City’s State’s Attorney is responsible.

As a city resident, longtime public defender and proponent of justice reform who ran an upstart campaign for judge with a social justice platform, I find Mosby’s statement offensive to those of us working for real change in our criminal justice system.

I’m in the local courts every day, and I’ve yet to see meaningful reform spearheaded by the state’s attorney’s office (SAO) – whether we’re talking about systemic racism, sentencing, bail or policing issues.

Falling Short

If we want to talk equality and justice, there are basic issues where Mosby’s office falls short. For example, the SAO should stop prosecuting marijuana cases and divert those resources to pursuing violent crimes.

It should use its large body camera evidence review unit to truly look for 4th Amendment issues (illegal police searches), instead of just organizing footage and preparing cases for court proceedings.

The office should allow defendants participating in the Circuit Court’s Drug Treatment Court to plead to misdemeanor offenses rather than felonies to stay consistent with the idea of alternative sentencing.

Why doesn’t the SAO follow the rules of court to turn over evidence to defense attorneys on time so we can prepare?

Where was Mosby when the City Council tried to pass an ill-advised mandatory minimum sentence for gun possession?

And where has the SAO been on bail reform? That system is still broken even with recent limits placed on cash bail. Judges still need more pretrial alternatives to jail, and prosecutors have to stop requesting “no bail” so frequently.

State’s attorney challengers joust over incumbent’s record (6/7/18)

Below-the-Belt Attack

The reverse side of Mosby’s mailer gets even worse. On it, she chastises one of her opponents, Ivan Bates, for defending one of the police officers charged in the death of Freddie Gray.

Her flyer reads, “His defense of the negligence and misconduct of the police proved he isn’t out to fix the broken system, he’s part of it.” The danger of offering such logic to the public must be explored.

First, the U.S. Constitution requires that “the accused shall enjoy the Assistance of Counsel for his defense.” Mosby’s attack on a political rival for doing his job and carrying out a constitutional mandate demonstrates either a lack of knowledge of the document she takes an oath to uphold or a repudiation of it.

Bates represented Police Sgt. Alicia White in the Freddie Gray matter. Regardless of what side of the fence you’re on, we all must recognize that White is entitled to a zealous defense by her attorney. Basic stuff.

Her office’s mishandling of cases and selective amnesia is “the very opposite of reform and the pursuit of equality and social justice,” says the author.

If Mosby can’t understand a defense attorney’s role for a cop, what does that say for my clients, who are typically young, unemployed African American men?

Second, Mosby dropped the charges against Sgt. White. Hello? Recognizing the writing on the wall after earlier prosecutions in the Freddie Gray case failed, Mosby preempted another embarrassment and dumped White’s case prior to trial.

Blaming the defense attorney in a case that the state abandoned and then claiming he is part of a “broken system” is sheer hypocrisy. It is rhetoric aimed at the emotions of people who don’t understand the justice system.

A Mosby flyer denouncing challenger Ivan Bates for representing a police sergeant in the Freddie Gray case is

Mosby’s denunciation of challenger Ivan Bates for representing a police sergeant in the Freddie Gray death case represents “sheer hypocrisy.”

Third, despite Mosby’s claims, the SAO has itself perpetuated the broken system.

Since taking office on January 8, 2015, she has had complete power to set the course her office takes in prosecuting crimes and in changing the system for the better.

Ignored or Bungled

But the reality is that the SAO continues to battle defense attorneys when they try to investigate misconduct in the Baltimore Police Department – and use such information in court.

How could the SAO not have known about the nefarious Gun Trace Task Force when most everyone in the criminal defense bar was crying foul play?

It’s remarkable that so many citizens continue to give Mosby a free pass and regard her as a “reformer” merely because she charged the officers involved in the Freddie Gray case.

From the bungling of the Phylicia Barnes murder trial three times, to the stubborn insistence on prosecuting Keith Davis Jr. a third time for murder (after police shot him in the neck), to her refusal to indict officers involved in the 2103 death of Tyrone West (despite that being a more obvious instance of misconduct than Freddie Gray’s death), to the mid-trial firing of an experienced prosecutor that led to an acquittal – why haven’t folks caught on?

In her campaign literature, Mosby portrays herself as

Mosby portrays herself as “the right kind of leader to fix our broken system.” (Friends of Marilyn Mosby)

In one of my recent cases, both the line prosecutor and I knew that a key police officer would be invoking his 5th Amendment rights in front of the jury. Despite this knowledge, the SAO higher-ups elected to prosecute the case, which resulted in a swiftly-returned verdict of not guilty.

This is the very opposite of reform and the pursuit of equality and social justice.

Some years ago, Mosby and I were counterparts handling misdemeanor jury trial cases. She was a totally unremarkable prosecutor who, I soon discovered, did not want to go to trial – something I used to my clients’ advantage.

If you would have told me that she’d be elected Baltimore’s chief law enforcement officer and then run a re-election campaign labeling herself a change agent, I’d have had a good laugh. Nothing’s different now.
An attorney in the Felony Trial Division of the Baltimore Public Defender’s Office, Todd Oppenheim is not affiliated with any candidate in the state’s attorney’s race. The statements and opinions expressed in this article are his own. He can be reached at @Opp4Justice.

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