The best of the Baltimore criminal defense bar: Time to put up or shut up

Let me be clear, I am glad six cops in Baltimore received criminal charges in the death of Mr. Gray. You can’t convince me that a nearly severed spine is anything other than a screaming condemnation of what happened to the young man. But, and there is always a “but,” I have another concern.

The criminal defense bar constantly complains about cops and insists defense lawyers do the work of God by representing individuals against an evil system that includes cops. OK I get that, and have a lot of respect for those lawyers who provide first class representation to the presumptively innocent. That said, it is now time for the criminal defense bar in Baltimore to put up or shut up. News flash: the six cops are no longer cops, they are criminal defendants. As such, the white and black men and a woman  (over?) charged by the young and inexperienced state prosecutor deserve the best the bar has to offer particularly because a terrifically powerful mob is calling for their heads. I hope really good criminal defense lawyers get involved and if necessary volunteer to do these cases pro bono or for a very reduced fee.*

Don’t let the mob rule.

RGK

*There will be no shortage of lawyers willing to defend the cops. They don’t count. I want to see the great criminal defense lawyers step forward.

42 responses

  1. Judge Kopf –

    It’s lovely that you’d like to have the police officers represented by “great criminal defense lawyers” and especially for them “to do these cases pro bono or for a very reduced fee.” I think everyone should have this right. But why do you think these officers deserve that any more than a poor young black man in Baltimore (or anywhere else) overcharged with something based on flimsy evidence? The difference is that there will be no shortage of people ready to stand up for these cops (you already see the Fraternal Order of Police jumping in) while the poor young black man won’t really have anyone in his corner but his lawyer.

  2. …and if necessary volunteer to do these cases pro bono or for a very reduced fee.

    Why these six should be entitled to a better defense than any other defendant isn’t entirely clear. There are many defendants who are the target of the mob, and they are no more, nor less, special. But to suggest they should receive excellent, yet free, representation is another matter altogether.

    This is America. They deserve the best representation they can afford. Please take your commie ideals back to Russia with you, comrade, and don’t sully our legal system again.

  3. Well said! Note that not only a “criminal defense ” lawyer but the Southern States PBA ( union wannabes ) shamefully abandoned officer Slager in North Charleston when it first became obvious that the case would involve more than a sanctimonious press conference. The lawyer should be restricted to representation of members of the Junior League. The SS PBA should provide refunds to their misled membership and just go away. Far away.

  4. Anon.,

    I glad you think a part of my post was “lovely.” But, let’s be honest. A mob is out to crucify all six cops regardless of what the evidence might turn out to be. You hate cops, so you make a stupid comparison between this case and run of the mill cases.

    All the best.

    RGK

  5. Judge:
    The telling part of you post was the use of the phrase “the young and inexperienced state prosecutor…” I can’t help but think that something is rotten in Denmark when criminal charges are preferred this quickly. Pardon my cynicism, but she seems to have wanted to sate the mob rather than take the time to properly live up to her prosecutorial responsibility to do justice. The attorneys who will represent these defendants have their work cut out for them BUT perhaps this youthful and inexperienced prosecutor may end up fumbling the ball at trial (in which case, will more riots be coming Baltimore’s way?).
    Robert

  6. In Los Angeles some of the most experienced criminal defense attorneys routinely accept cases where law enforcement officers are charged at greatly reduced rates. You are right Judge! Let’s not forget the example of John Adams.

  7. I welcome each and every instance in which prosecutors are put to their proof by skilled defense attorneys who have access to the financial wherewithal to put up a strong defense. It doesn’t happen nearly often enough. This particular set of defendants, however, are not exactly unlikely to go without the benefit of a robust defense. I also have yet to see a criminal defense attorney worth his or her salt that wouldn’t take on a case like this. For example, here in Cleveland we have a similar high-profile prosecution going on — there’s a police officer whose trial for for the shooting deaths of two unarmed people is on the brink of verdict, and a local community that is a little tense about the outcome — and he is being represented by not one, but three, well-respected members of our local criminal defense bar.

  8. Richard,

    The defense of the Brits by Adams is a great example. The fact I forgot about it makes me cringe. That you remembered is much appreciated.

    Thank you. All the best.

    RGK

  9. A couple of addenda to this. Her husband is a Baltimore city councilman for a district that encompasses some of the rioting locale. Deciding not to prosecute….

    She appears to have based her decision to prosecute, at least in part, on answering the mob and not exclusively on the facts of the case (very few of which we know other than the entry and exit points of the matter, and nothing in between; hopefully she had a major subset of them).

    The first addendum wouldn’t matter much without the latter beyond some pause. The latter by itself, though, makes her decision’s motivation hard to distinguish between scapegoating and legitimate prosecution.

    And, she’s been silent, as far as I can tell, on the threats of rioting if there’s an acquittal.

    Eric Hines

  10. These six may now be criminal defendants, but they most certainly are still also cops. Moreover, unlike most criminal defendants, they will continue to be paid – by the State no less – while on leave from their jobs. So seems to me they can now get new jobs with all this time they now have off, collect two pay checks, and pay for their own defense. They’re in a much better place than 99% of the people they’ve arrested, who too often get run of the mill defenses in what you call “run of the mill cases.”

  11. Judge your Red State slip is showing under your robe again, after all the run of the mill defendant does not have the fans of the Great White Race cheering him on so the comparison is far from stupid, and union provided lawyers have a very good track record in police brutality cases, and before you play the hate cops card come and see my shrine to my police detective grandfather.

  12. The prosecutor does justice without regard to electoral politics and the Baltimore DA is failing? There is a silent law and order mob looking over the shoulder of any prosecutor that wants its fears quieted and its prejudices confirmed.To pretend that this case is that different from most other high profile cases is to ignore reality. Prosecuters in the States are politicians and are either in search of higher office or desire to keep the one they have. There decisions usually keep electors satisfied .

  13. Excellent post, and like you, I find the injuries sustained by Mr. Gray to be grevious enough to warrant a serious answer as to how they came to be. And, like you, I have a “but” as well.

    I have no problem with wanting the officers to have competent counsel. I don’t want them to be treated “better” than other defendants though. One of the major gripes with the justice system is the disparate treatment of lower socio-economic defendants. They should be allowed to seek the same defense as all others, and that is the best defense that you can afford.

    Too many times, I’ve heard people saying, “Don’t do the crime if you don’t want to do the time”. That should go double for peace officers. We are sworn to uphold the law, not dispense punishment or justice. I don’t think the officers set out intentionally to severely injure or kill Mr. Gray, but the seemingly lack of honesty in their reporting as well as their neglect to follow basic department protocol does nothing more than to push the meme of officers being out to hurt or kill people.

    If you’re asking for the best defense lawyers to work for these officers, even to the point of accepting the case pro bono, I would also hope that you would ask the same for regular defendants. Otherwise, you give the appearance of enabling a two-tiered justice system. I’m not trying to accuse you of such, but that’s just this particular officer’s perception.

  14. B,

    “Me too” re really good defense lawyers taking regular cases pro bono or for a reduced fee. I am no Marxist (despite SHG’s funny snark). That said, big time criminal defense lawyers can afford, and many do, take “a little person’s” criminal case from time to time. It is good for the soul too.

    All the best.

    RGK

  15. Yes, John, you are right about the cops nominally remaining cops. And I am right that there is powerful mob looking for blood regardless of the evidence.

    All the best.

    RGK

  16. repentinglawyer,

    I would like to see your shrine. You can see mine to the Great White Race too, if you like. It sparkles in the sunlight, and I don’t have to shine my shrine.

    All the best.

    RGK

  17. Thank’s for the response sir. I was hoping that I took that statement out of context as it didn’t sound like your usual writings. I don’t comment much, but I do enjoy reading your blog.

  18. Fear not Judge like the broken clock I am right twice a day, this was one of those times.

  19. I think your reference to the prosecutor as “inexperienced” is ignorant, inappropriate, and not worthy of you. I will give you the benefit of the doubt and not suggest that it is racist, but I was very disappointed in you. Please read: http://www.stattorney.org/office/meet-marilyn-mosby Sounds to me as though she may be a superstar in the making. And, do you really think this decision was made all by herself with no consultation with her deputies?

  20. Norm,

    Thanks for your comment. I am sorry that you think my suggestion that the prosecutor was “inexperienced . . . is ignorant, inappropriate, and not worthy . . . .”

    My understanding is that Ms. Mosby has roughly one year of experience prosecuting major felonies in the 8th Judicial Circuit in Baltimore City, the court of general jurisdiction. Her resume states that she began that work in 2011. She left to work for Liberty Mutual Insurance Company in 2012. (By the way, if you believe the foregoing information is incorrect, please be sure to correct me.)

    One year prosecuting and trying major felonies is not very much. Hence, her “inexperience.”

    All the best.

    RGK

  21. Judge:
    Don’t you think these defendants were overcharged? Isn’t manslaughter more reasonable given the facts the public thinks it knows now?

  22. I went back and listened to the DA’s statement on the charges, it seems to me to be very professional statement of the State’s case and the factual base of the charges. I doubt that more experience would make a difference on the charging decision. I also doubt she plans to try the case and certainly not alone. She may have overcharged, but that is hardly unusual in American criminal law as is the practice of charging some marginal players to give jurors some one to find not guilty. I might note that the State’s Atty comes from a police family and that three of the officers are AfricanAmerican..Despite the political pressures this seems an appropriate though not inevitable set of charges.

  23. “Sounds to me as though she may be a superstar in the making.”

    Going solely on her résumé / previous experience, barring a high-level of oral or written advocacy, or a track record of managing her own cases not evident on her bio, it’s unlikely she’d have gotten an interview at the USA’s office where I worked. “Training newly sworn prosecutors and support staff on courtroom decorum…” sounds like an island for broken toys. “Driven by her love for courtroom litigation and the desire to diversify her legal experience ….” doesn’t scream All-Star. And an insurance company’s SIU simply handles claims cases where the company suspects there *may* be fraud thus takes more detailed and time-consuming claims handling. Meh.

    Now, she may a dynamo. I have no idea. But, she is also someone with *at most* a year’s experience of prosecuting real cases, probably few of which were homicide trials; none, I’m guessing, involved charges against cops. (Also, she’s older than I am, and I stopped putting my internships on my résumé years ago….)

    Personally, I’m queasy about any LEO or prosecutor who thinks it’s her job to “get justice for the family.” Bad things can lie down that path.

  24. I’m trying to remember a case in district or superior where prosecution didn’t over charge, sometimes wildly. Can’t come up with one.

  25. To suddenly discover that elected prosecutors are not selected by a system that assures experience or that as politicians they do a bit of playing to the cheap seats, seems rather shocking for a lawyer of any experience workingdogbc, and it hardly seems likely to change any time soon. If she is not a rising start that hardly makes her any different from most Ass. US Attys or state prosecutors .

  26. Anon.,

    Since I don’t know the evidence or Maryland law I am not sure if the cases were overcharged. But, my speculation is that they were.

    At her press conference, she said something disturbing. She said she had to be convinced that there was “probable cause” to assert these charges. But, to be fair, I may have misunderstood her.

    That said, if I heard her right, that bothers me. I have always understood that ethically speaking a prosecutor should assert charges only when he or she is convinced that the prosecutor can prove the charges beyond a reasonable doubt.

    All the best.

    RGK

  27. A Sunday sermon is appropriate: “Woe to you, teachers of the law and Pharisees! You give a tenth of your spices … But you have neglected the more important matters of the law — justice, mercy, and faithfulness. You should have practiced the latter, without neglecting the former. You blind guides! You strain out a gnat but swallow a camel.”

    First, it seems that anyone who can’t even be bothered with reading a party’s briefs before ruling has no goddamned business telling anyone else to go the extra mile.

    Second, it seems that if you break a detainee’s freakin’ SPINE while he is your custody, it should be depraved heart murder until proven otherwise. It’s hard to even suspect that they were overcharged without a bag over your head. DAs always go as easy as they can on cops, and only a lynch mob can pressure them into to doing their jobs.

    Third, why are you disturbed by the prosecutor’s remark? To indict, all you need is probable cause. It would be unprofessional for her to say more.

    Fourth, you rupture the Achilles heel of American jurisprudence: You get about as much justice as you can afford. When a poor man comes to your court in pro per, you treat him like shit. Judges are even trained to get rid of those cases. PDs do the best they can, but often, they don’t have the resources to mount a proper defense. Why should these cops receive limousine treatment?

    Fifth, since the incident occurred while on the job, I presume that they will be represented by counsel paid for by the taxpayers. Why should the criminal defense bar do anything pro bono?

    Sixth, it sounds like you have a pro-authority bias: You cut those in power more slack. Judges, cops, and DAs walk on water, but the unwashed masses must crawl before you.

    Finally, it seems that the only time people receive justice in our courts is when the klieg lights of the media are trained upon them. Absent the disinfectant of sunlight, corrupt judges do their dirtiest work, and we all know that the cops would get a sweetheart deal without it.

    IMHO, we need a few more lynch mobs.

  28. I’m hardly shocked. The issue was whether it’s reasonable to say commenting on her inexperienced is motivated by (at best) ignorance or perhaps (at worst) racial animus, given her public bio. A year three years ago trying felony cases — none of which seem to include police misconduct investigations —and four months on the job is, in fact, very little experience. Unnecessarily committing the office so early on certainly raises eyebrows.
    The larger point is that the public discussion of the case already reeks of apriority and incivility. We’d be better off with less of that, instead reflecting on the lessons of Arnold Kling’s “The Three Languages of Politics” or Dan Kahan’s thoughts on cognitive illiberalism.

  29. If the problem is local antipathy towards the defendants, as indicated by the mobs, wouldn’t a change of venue the appropriate remedy? Rather than better lawyers than other defendants get?

  30. You heard correctly.
    Are you speaking normatively or descriptively? Prosecutors shall refrain only when they know that probable cause is absent. Otherwise, they couldn’t pursue inconsistent charges or theories or apply statutes in novel ways. Granted, “pursuing justice” probably requires something more (although a ferrous environment like Baltimore is problematic for anyone’s moral/professional compass).

  31. Because some members of the defense bar complain that the system privileges cops over defendants, the Baltimore criminal defense bar must now afford to cop-defendants a privilege not enjoyed by other defendants?

  32. Hi, Judge,

    In HeienNC, SCOTUS recently held that ignorance of the law is no excuse except for LEO.

    Do you think the Baltimore LEOs will use this mistake-of-law defense: “I believed his knife was illegal.”

    SCOTUS permits chokeholds. Now, SCOTUS permits rough rides.

    How to get away with murder. Citizen lives don’t matter

    To echo something Justice Alito recently wrote, “I’d love to be a fly on the wall in that LEO training classroom.”

    IMHO,
    Barry

  33. Defendant’s Requested Jury Instruction __

    [Mistake of Fact]

    You have heard evidence that the defendant’s actions were based on mistake of fact. Mistake of fact is a defense and you are required to find the defendant not guilty if all of the following three factors are present:
    (1) the defendant actually believed [alleged mistake];
    (2) the defendant’s belief and actions were reasonable under the circumstances; and
    (3) the defendant did not intend to commit the crime of [crime] and the defendant’s conduct would not have amounted to the crime of [crime] if the mistaken belief had been correct, meaning that, if the true facts were what the defendant thought them to be, the [defendant’s conduct would not have been criminal][defendant would have the defense of (defense)].
    In order to convict the defendant, the State must show that the mistake of fact defense does not apply in this case by proving, beyond a reasonable doubt, that at least one of the three factors previously stated was absent.

    AUTHORITY: General v. State, 367 Md. 475, 789 A.2d 102 (2002).

    Given: _____

    Modified: _____

    Refused: _____

  34. Barry,

    Thanks very much! What about a mistake of law? For example, were the officers entitled to make a Terry stop or was the knife legal or illegal?

    All the best.

    RGK

  35. [O]nce the decision is made to bring a criminal prosecution, the prosecutor should charge the offense that’s the most severe under the law. That’s not a hard and fast rule, but that’s kind of the default principle.
    – – DOJ Solicitor General Assistant Roman Martinez, Yates v. U.S., SCOTUS No. 13-7451, oral argument transcript, pp. 28-29 (11/05/2014).

  36. Well, if LEO has a mistake-of-law excuse, then the law fails to protect innocent law-abiding commoners. IMHO. Barry

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