Defense lawyers for police officers charged in the death of Freddie Gray while in police custody have called for Marilyn Mosby to step down as prosecutor, citing an email calling for increased police activity. (Baltimore Sun video)
About three weeks before Freddie Gray was chased from a West Baltimore corner by three Baltimore police officers — the start of a fatal encounter — the office of prosecutor Marilyn Mosby asked police to target the intersection with "enhanced" drug enforcement efforts, court documents show.
"State's Attorney Mosby asked me to look into community concerns regarding drug dealing in the area of North Ave and Mount St," Joshua Rosenblatt, division chief of Mosby's Crime Strategies Unit, wrote in a March 17 email to a Western District police commander.
The email was disclosed for the first time Tuesday in a motion filed in Baltimore Circuit Court by defense attorneys for the six officers being prosecuted in Gray's arrest and death. The attorneys said Mosby's involvement in the police initiative means that she should be removed from the case.
"Mrs. Mosby herself is now an integral part of the story and as such is a central witness," the defense attorneys argued. "This is a case where the witness and the prosecutor are one and the same."
Mosby, through spokeswoman Rochelle Ritchie, said, "Consistent with our prosecutorial obligations, we will litigate this case in the courtroom and not in the media." Mosby's office received the motion Tuesday afternoon, Ritchie said.
Mosby's office has dismissed previous defense calls for her recusal, including those based on conflict-of-interest allegations stemming from her husband's post as city councilman in the district where Gray was arrested.
In their motion Tuesday, defense attorneys said the email exchange shows that Mosby knew the area where Gray was chased was a high-crime location. They said that bolsters their argument that officers were within their rights to detain and handcuff Gray — even before finding a knife and officially arresting him.
"It must be understood that Mrs. Mosby was directing these officers to one of the highest crime intersections in Baltimore City and asking them to make arrests, conduct surveillance, and stop crime," the defense attorneys wrote. "Now, the State is apparently making the unimaginable argument that the police officers are not allowed to use handcuffs to protect their safety and prevent flight in an investigatory detention where the suspect fled in a high crime area and actually had a weapon on him."
In the March 17 email to Maj. Osborne Robinson, Rosenblatt wrote that Mosby's office wanted to build on the success in reducing crime in the West Baltimore neighborhood through the Operation Ceasefire program by "targeting that intersection for enhanced prosecutorial (and hopefully police) attention." In that program, prosecutors, police and community groups work together to persuade criminals to reform.
On March 20, Robinson forwarded Rosenblatt's email to several Western District officers, including Lt. Brian W. Rice. He was one of the three officers who arrested Gray and one of the six later charged in Gray's arrest and death.
Robinson told Rice and the other officers to begin a "daily narcotics initiative" focused on North Avenue and Mount Street, according to the email, and said he would be collecting "daily measurables" from them on their progress.
"This is effective immediately," Robinson wrote, noting that the officers should use cameras, informants and other covert policing tactics to get the job done.
Lt. Kenneth Butler, president of the Vanguard Justice Society, a group for minority and female Baltimore police officers, said that when orders such as Robinson's come down to target a specific corner, the response is consistent. "They want increased productivity, whether it be car stops, field interviews, arrests — that's what they mean by measurables," he said.
Butler, who said he has been a shift commander on and off for the past 15 years, added, "You have to use whatever tools you have — whether it be bike officers, cameras, foot officers, whatever you have — to abate that problem. So you're going to have to be aggressive."
Butler said that he has never seen such orders come from the state's attorney's office but that they come at the request of politicians and community leaders all the time.
"Once you're given an order, you have to carry it out. It's just that simple," he said.
Kinji Scott, a longtime community activist, defended Mosby's crime-fighting efforts. He said she did not order police to "put Freddie Gray in a situation where he had his spine severed. ... We cannot fault her for doing her job and being involved in the community."
Gray, 25, was arrested April 12 a couple of blocks south of North Avenue and Mount Street after making eye contact with police and running away, according to police. Mosby's office said Gray sustained a severe spinal cord injury while being transported in a police van.
His death a week later, April 19, touched off days of protests that culminated in looting, arson and rioting in a number of neighborhoods, forcing city officials to call in the National Guard and implement a curfew.
Officer Caesar R. Goodson Jr., the driver of the police van, was charged with second-degree depraved heart murder; Rice, Sgt. Alicia D. White and Officer William G. Porter have been charged with manslaughter.
Officers Edward M. Nero and Garrett E. Miller, the two others involved in Gray's arrest, face lesser charges, including second-degree assault.
Under Operation Ceasefire, which tries to break the cycle of recidivism by offering repeat offenders social services to leave crime behind, police and prosecutors sometimes share ideas and coordinate to keep the worst offenders off city streets.
According to Rosenblatt's email, Mosby had been contacted for help in addressing drug dealing at North and Mount by a "mentoring group" that described a "drug shop located directly outside of their facilities." Rosenblatt, a former city detective, said Mosby had received photographs from a resident of drug dealing at the corner.
"I realize that resources are thin for a long-term investigation, but hopefully we can combine community involvement with [the state's attorney's office and Police Department] cooperation to make something happen," Rosenblatt wrote.
Rosenblatt's Crime Strategies Unit, according to the state's attorney's website, uses "technology, data analysis, and intelligence-gathering to identify trends in crime, focus in on the offenders driving that crime, and target those offenders for enforcement."
Rosenblatt could not be reached for comment.
Defense attorneys for the six officers have argued previously that Mosby should not handle the case because of alleged conflicts of interest, including "the seizing of political and personal gain by" Mosby and her husband, City Councilman Nick Mosby, and close ties between her and attorney William H. "Billy" Murphy Jr., who represents Gray's family.
Nick Mosby represents the district where the worst of the rioting occurred after Gray's death. Murphy supported Marilyn Mosby's election campaign, served on her transition committee and represented her in a matter before the Attorney Grievance Commission.
Murphy declined to comment Tuesday; Nick Mosby did not respond to a request for comment.
Mosby and her office have dismissed the alleged conflicts as baseless.
In a state filing, Chief Deputy State's Attorney Michael Schatzow called the suggestion that Nick Mosby's position was a conflict that should prevent her from trying cases in an entire city district "truly a breathtaking non-sequitur."
Schatzow also wrote that the "notion that Mrs. Mosby would bring baseless criminal charges with the entire nation watching just so that Mr. Murphy might have some advantage in the civil case is ludicrous."
In the same filing, Schatzow said Gray's arrest was illegal.
"Mr. Gray was arrested well before the arresting officers knew he possessed a knife," Schatzow wrote. "Mr. Gray was handcuffed at his surrendering location, moved a few feet away, and placed in a prone position with his arms handcuffed behind his back, all before the arresting officers found the knife."
Defense attorneys said in their filing Tuesday that Mosby's office had come up with this "new theory" to support otherwise unfounded charges against the arresting officers. They wrote that the involuntary detention of a suspect using handcuffs prior to an arrest — known commonly as a "stop and frisk" — is legal according to decisions by the Supreme Court and Maryland appeals courts, as well as the Baltimore Police Department's general orders.
Stop-and-frisk policies have long been controversial in Baltimore, where a decade of "zero-tolerance" policing, including under then-Mayor Martin O'Malley, sparked resentment from residents, especially in predominantly African-American neighborhoods where residents say young men are harassed by police.
In 2013, Baltimore police stopped using the term "stop-and-frisk" to describe their tactics, but continued stopping and searching individuals suspected of criminal activity.
Under a 2006 general order that was valid until April of this year, officers were told they could use handcuffs during "involuntary detentions" based on "reasonable suspicion" — a standard that "is more than mere suspicion, but less than probable cause."
In April, a revised policy was issued, but it did not change the department's basic stance on the use of handcuffs during such stops. According to the policy, "investigative stops" can involve the "delay or hindrance of an individual's freedom of movement" when an officer has a "reasonable, articulable suspicion" to justify it.
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Such a suspicion can be based on a variety of actions, the policy says, including "furtive behavior," "evasive conduct or unprovoked flight" and "presence in a high crime area."
Byron Warnken, a law professor at the University of Baltimore, said there is "an amorphous sliding scale between a stop and an arrest." It is based on overall circumstances, including how long a person is detained, use of force and the factors that led the officers to become suspicious.
Warnken's firm was hired by Mosby's office before Gray's arrest to train Baltimore officers on Fourth Amendment issues. He said he will be teaching nuances of the law to officers enrolled in his training courses in the coming weeks.
The defense attorneys said Gray was only detained long enough for officers to protect their safety with a weapons check and confirm their suspicions of criminal activity through the discovery of the knife.