Lawyers will help, not hinder, DOJ's Baltimore investigation

Don't make matters worse, Baltimore: Keep outside counsel for the DOJ's Freddie Gray investigation.

Three dangerous storm clouds now hang over Baltimore in the wake of the spring's Freddie Gray riots. First, police/community relations continue to deteriorate seriously. Second, violent crime continues to rise dramatically. Third, there is continued fear about recurrences of the spring disorders — especially with an acquittal of any of the six police defendants facing trials alleging criminal malpractices leading to Freddie Gray's death. There can be no doubt that the spring riots crippled the city's already fragile economy. Further unrest would almost certainly aggravate that situation.

In the face of all this, there is broad agreement that the successful and prompt conclusion of the Justice Department's present civil rights investigation of Baltimore's policing practices will result, as has been true of these investigations nationwide, in highly effective police reforms, leading both to dramatically improved police/community relations and a substantial decrease in crime.

At a minimum, these investigations take roughly 18 months to complete and then at least another half year to negotiate remedies, however. Thus, left to routine timing, the much needed police reforms would likely not begin until 2018. What is at issue now before the Baltimore City Council is whether to stop an important process that will speed up reform: having a highly respected and expert outside law firm work with the DOJ to expedite the process.

At a recent City Council hearing to consider the city's funding of that outside firm, accusations were made that the hiring of outside counsel was an attempt to obstruct the investigation through over-lawyering and that the legal work could be done exclusively, and less expensively, by the city's lawyers. These assertions misunderstand the gravity of the matter.

The focus of the investigation is not merely about what happened to Freddie Grey. That is the triggering event for the investigation. The Freddie Gray episode is universally understood, especially by the Justice Department, as a symptom of a systemic breakdown of police/community relations.

By statute, therefore, the investigation must examine the alleged "pattern and practice" of police misconduct by the department as a whole.

Thus, police/community relations as a whole over many years are investigated, requiring extensive police document and email analysis, complex fact evaluation and complicated legal research.

The city must, among other things, locate and provide to the Justice Department in orderly fashion tens of thousands of pages of documents and hundreds of thousands of emails.

When cities have tried to do this unaided by expert outside counsel, police department operations overwhelmed by these requests have been brought logistically to their knees, thereby reducing police attention to their jobs and delaying the Justice Department's investigation.

For this reason, cities subject to these investigations regularly retain expert outside counsel. The Baltimore mayor and city solicitor's choice of the WilmerHale law firm as outside counsel represents the hiring of a firm that is among the first rank of outside counsel so retained. To date (when unimpeded by threats of termination or termination itself), that law firm has been successful in moving the investigation toward closure soon, rather than sometime in 2018.

Little attention was paid at a recent council hearing to the well-recognized benefits to be derived from expert outside counsel. The focus instead was on outside counsel's costs, which are not only in line with fees paid in these matters by other cities, but which pale, for example, in comparison to the exorbitant amounts Baltimore regularly pays as settlements in police misconduct cases alone. Delay of Justice Department police reforms invites the intervening continued payment by taxpayers of large police misconduct damages.

Letters from distinguished private Maryland lawyers, including former Maryland Attorney General Stephen Sachs, have been sent to the City Council, imploring members to continue the outside law firm's services, because of the irreparable and extensive damage that will result from the law firm's termination. The mayor has made those letters public here: mayor.baltimorecity.gov/sites/default/files/WilmerHaleLetters.pdf.

Refusing to use outside counsel as an "economy" measure will greatly delay the DOJ investigation and resulting police reforms and will result in a further rise in crime and a further deterioration of police/community relations. This city cannot afford this or the resulting high crime rates, the likely civic disruptions, expensive damage payments for police misconduct and the further deterioration to our already fragile economy.

Common sense must prevail.

Michael Greenberger is a law school professor and the director of the University of Maryland Center for Health & Homeland Security. As the U.S. Justice Department principal deputy associate attorney general from 1999-2001, he was involved in the attorney general's oversight of the DOJ's police pattern and practice investigations and consent decrees. His email is mgreenberger@law.umaryland.edu.

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