Many obstacles to prosecuting police

There are likely to be many minefields on the path to prosecution in the Freddie Gray case.

Marilyn Mosby's decision to charge and obtain an indictment against six Baltimore city officers in Freddie Gray's killing already distinguishes her as one of the few local prosecutors to overcome the formidable obstacles that usually block similar prosecutions. But her team should prepare for additional minefields on its path toward trial, whether they be leaked evidence, like the autopsy report given to The Sun, or persistent efforts by the defense to avoid a Baltimore jury.

Local police accused of criminal conduct usually depend on their prosecutorial partners to find officers' actions justifiable. A Washington Post analysis found that of the thousands of fatal police shootings since 2005, only 54 officers have been charged. Typically, prosecutors accept the police investigation findings and dismiss accusations against officers. Grand jurors are also often amenable to accepting the police version — as are judges; witness the recent acquittal in Cleveland of an officer who fired 49 shots at two unarmed occupants in a car, 15 of them while standing on the car's hood.

While most police likely act in accordance with law, some do not. Even then, it is never an easy task for local prosecutors to charge, much less convict, a formerly trusted ally who stands side-by-side in fighting crime. Each usually shares a common view that the deceased — represented in recent cases by African-Americans Freddie Gray, Eric Garner and Michael Brown — are part of the criminal class and not crime victims.

That explains why Baltimore's police union must have been stunned when Baltimore State's Attorney Mosby, the candidate it supported and who is from a family of officers, initiated an almost unheard-of criminal prosecution. Since 2006, 67 people have died at the hands of Baltimore police, though only two officers were prosecuted; one, who was on duty at the time of the shooting, was acquitted, the other, who wasn't on duty, was sentenced to 15 years. The union had history on their side in expecting that no officer would be charged.

Ms. Mosby embraced a different approach. She created an investigative process independent of the police, one that relied on newly-hired, experienced lawyers from private practice rather than career prosecutors accustomed to rejecting citizen allegations. They concluded the facts warranted a criminal prosecution.

It did not take long for the union leadership and their supporters to denounce the prosecution.

Embracing an aggressive strategy intended to derail the prosecution, the union and defense lawyers called for removing Mosby. They charged sweeping ethical violations, based upon far-reaching and tenuous conflicts of interest from her husband's position as a councilman, a prosecution team member's relationship with a journalist and the Gray family lawyer's support during Ms. Mosby's campaign. Pundits and former prosecutors sharply criticized her decision. They lodged accusations of incompetence, pandering and a rush to judgment, despite knowing few facts or the evidence at hand.

Media reports appeared regularly as the union floated "trial balloons" to see what might confuse an increasingly uncertain public within white communities. Attacking Ms. Mosby's fairness, the union advocated for a special prosecutor only months after vigorously opposing statewide legislation for such an office. The union strategy turned more troubling when officers appeared to engage in a post Freddie-Gray slowdown. Arrests plunged 43 percent from April to May while violent crime in black communities increased. News articles referring to declining police morale and reluctance to enforce laws became a veiled threat against protecting affluent and predominantly white communities. Ms. Mosby's motions for a gag order and then an order of protection covering the evidence became emergency measures intended to quell defense efforts to poison public sentiment against the prosecution. It was not surprising that the day after the leaking of the autopsy report, a pro-police medical examiner criticized the finding of homicide.

Looking ahead to trial, the police lawyers will deploy their full arsenal in attempting to move the case from Baltimore to a county perceived favorable because of a sizable white population. That's been a time-tested successful strategy in the rare police prosecution. Police defendants judged by all-white or predominantly white juries rarely convict. Prosecutors must guard against exclusion of African-American jurors.

Changes of venue in highly publicized cases are typically rejected. Why? Because trial judges know that extended jury selection will produce 12 impartial city jurors who will judge the defendants based on the evidence presented. That's the usual way it's done and what should occur in Baltimore, too.

Prosecutors also must prepare to oppose a defense motion to avoid a jury and choose a judge it considers sympathetic. That strategy worked for the Cleveland officer, whom the judge concluded acted reasonably. Other officers, said the judge, would have done the same.

Local prosecutors must ensure defendants receive a fair trial. They also must be on guard against police strategies that deprive the community from obtaining the justice it is entitled.

Doug Colbert teaches at the University of Maryland School of Law. His email is dcolbert@law.umaryland.edu.

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