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Mosby announces slate of proposals to reform process for investigating, prosecuting police misconduct

Marilyn Mosby wants to shake up status quo in how cops are prosecuted in Maryland

Baltimore State's Attorney Marilyn J. Mosby proposed a slate of reforms Thursday for investigating and prosecuting police officers accused of misconduct, citing her failure to convict a single officer in the Freddie Gray case as her motivation.

"Equality must be a felt reality" in Baltimore, said Mosby, adding that her proposed reforms — including giving investigators in her office police powers and prosecutors the right to reject a criminal defendant's request for a bench trial — would go a long way toward leveling the playing field between regular citizens and police officers accused of similar offenses.

Mosby said she had challenged a "long-standing protective norm" in charging the six Baltimore officers in Gray's arrest and death, and ended up learning "hard, valuable and challenging lessons" about the need for institutional change.

Gray, 25, died a week after suffering spinal injuries in the back of a police transport van in April 2015. The six officers were cleared of charges including misconduct in office, manslaughter and murder.

Mosby said her proposals, produced after "convening and consulting prosecutors around the country," were aimed at "opening a dialogue about the role that prosecutors, police and community members play when citizens are seriously injured or killed during interactions with police departments."

"Having learned the hard way through firsthand experience, when allegations of police misconduct arise, prosecutors are seen too often as protective of police and unlikely to prosecute cases of wrongdoing," Mosby said during an announcement at Coppin State University. "Despite taking an oath to administer justice fairly and equally to everyone regardless of their race and their sex and their occupation, exacerbating factors such as fear of straining the police-prosecutor relationship that other case work depends upon can make looking the other way on police misconduct seem like the lesser of two evils."

The first of Mosby's five proposals calls for replacing the Police Department's Special Investigation Response Team, which responds to all incidents in which officers use significant force, with a "collaborative investigative team" made up of a police investigator, an investigator from her office, a Maryland State Police investigator and a Civilian Review Board investigator.

Another proposal calls for the cross-designation of federal prosecutors as potential partners in bringing state charges against police officers, while another calls for the immediate inclusion of at least two citizens on trial boards that hear officer misconduct charges at the administrative level. The latter has been a top priority of activists in Baltimore but opposed by the police union.

The proposal to give police powers to investigators in Mosby's office would allow them to carry firearms, issue warrants and make arrests.

In response to the proposals, Police Commissioner Kevin Davis said in a statement that his department "will consider all recommendations that serve to improve our processes and enhance our reputation in the community."

Mosby said the reforms were meant as "a blueprint for local law enforcement in Baltimore, in jurisdictions across the state, and possibly across the country."

Mosby was flanked by other prosecutors, academics and community activists in announcing the proposals, including David LaBahn, president and CEO of the Association of Prosecuting Attorneys, and Paul L. Howard Jr., the association's board chair and the district attorney in Fulton County, Ga., which includes much of the Atlanta meteropolitan area.

Howard called Mosby "one of America's most dynamic prosecutors" in endorsing the proposed changes. Without prosecutorial independence, Howard said, "the problem that we are seeing all over the country with respect to police misconduct most probably will not be settled."

The likelihood of Mosby's proposals being adopted or turned into law is unclear, though some would face an uphill battle in Annapolis.

For instance, Mosby's recommendation that prosecutors be given a say in whether criminal defendants can select a bench trial was slammed by key state legislators after she first mentioned it following her decision to drop all remaining charges against three of the officers in the Gray case this summer. A judge had acquitted the three other officers in bench trials.

Defendants in Maryland have a right to select a bench trial, putting their fate before a judge, or a jury trial. Mosby said she wants the state system to come more in line with the federal system, where prosecutors can object to a bench trial.

Sen. Robert A. Zirkin, a Baltimore County Democrat who chairs the Senate Judicial Proceedings Committee — which would consider any such legislation — descibed the idea as "moronic" and "horrendous" in July, saying it "has 0.0 percent chance" of becoming law.

"The state doesn't have a right to a jury trial. Individuals have a right to a jury trial," Zirkin said at the time. "Just because you lose a case doesn't mean you change the entire framework of defendants' rights."

Mosby's proposal to "cross-designate" federal prosecutors in local police misconduct cases would have to be agreed to by the U.S. Justice Department. Maryland U.S. Attorney Rod J. Rosenstein declined to comment on the proposal.

Mosby said the proposal would give federal prosecutors the ability to file charges against police officers using state criminal statutes if they determined her office had erred in declining to press charges. Currently, federal prosecutors only weigh in on police cases involving "the most egregious civil rights offenses" that fall under existing federal statutes, she said.

Such an agreement, she said, would "preserve local leadership and accountability" but also "buttress the public trust in the process."

Mosby made no reference to the fact that Gray's death is already under a civil rights review by federal prosecutors.

Attorneys for the officers charged in the Gray case have previously bristled at Mosby's suggestion that the outcome of the cases may have been different if federal prosecutors were in charge and could force a jury trial rather than a bench trial.

"Quite honestly, I think all of us would have welcomed the opportunity to try this case in front of a federal jury, and we would have welcomed the opportunity for the U.S. attorney's office to have been engaged in the investigation of this case," said Catherine Flynn, an attorney for Officer Garrett Miller, whose charges were dropped.

Flynn and other attorneys for the officers have suggested Mosby's complaints about institutional obstacles to securing convictions against cops were simply her way of "blaming other people" for her own decision to present weak cases.

Mosby declined to say Thursday whether her proposal that investigators in her office be given police powers was inspired by the civil malicious prosecution lawsuit filed against her by five of the six officers in the Gray case, in which a federal judge has suggested the normal "absolute immunity" enjoyed by prosecutors may not apply to Mosby's office conducting its own investigation into Gray's death.

LaBahn, of the Association of Prosecuting Attorneys, said giving Mosby's investigators police powers would not give them a prosecutor's absolute immunity, but the same qualified immunity protections enjoyed by police.

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