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Freddie Gray case, handling of police misconduct files reveal broken Baltimore justice system

A Md. public defender outlines myriad problems with Baltimore courts, including police favoritism.

The national media came and went with the riots in Baltimore, taking with it a call for action for criminal justice reform. The roots of the unrest and reasons behind the protests continue to be ignored. The Justice Department's review and pledges of community investment are quick fixes that gloss over entrenched systemic problems. As a public defender of nearly 11 years, I know it too well. Inequality in the courts and the complacency surrounding police misconduct need to be directly addressed. Just look to the handling of the Freddie Gray murder case and the permissible secrecy behind internal investigations of cops as instant evidence of these ongoing problems.

The special treatment of the six officers charged in the in-custody death of Freddie Gray highlights the inequities of the justice system in Baltimore and the country. A judge has been specially assigned to the case one month after the indictment. It normally takes the average defendant about six months after indictment to "qualify" for an assigned judge, but it's still a crap shoot as to whether you'll get one. If not, you wait in the line of hundreds of defendants vying for the availability of roughly eight judges.

Having a personal judge, the officers' pretrial motions can be heard promptly and early, unlike regular defendants, who can languish in jail for over a year only to get to preliminary matters on the day of trial. These motions, which often take just several hours to hear, can result in a dismissal, so the sooner they're heard, the better. The Gray officers, who have pleaded not guilty, have managed to sidestep a clogged system for their own fast track.

Additionally, the Freddie Gray prosecution team has turned over trial evidence within court deadlines. In my experience, most other defendants receive such discovery late — often on the day of trial — without so much as a reprimand from a judge for the prosecution's tardy delivery. Sure, you can have a postponement to prepare, but you have to wait two more months in jail and get back in line for a trial.

Ex-Bishop Heather Cook, who has been charged in the vehicular death of a Baltimore bicyclist, has received similar treatment in court. Both the officers and Ms. Cook got far off trial dates (October and September respectively) unavailable to regular defendants, who are restricted to a two-month postponement. Longer time periods before trial dates are an advantage, especially when you fight your case from the comfort of home and can help your attorney prepare a proper defense. Indigent defendants, meanwhile, sit in jail pretrial on excessive, unattainable bails for lesser offenses with fingers crossed, hoping the stars will align so they can begin trial, but too often get forced into guilty pleas. Look at the protester bails, some of which actually exceed that of the officers charged in Freddie Gray's death. The logic is so warped it's mind numbing. Special treatment evokes favoritism and unfairness.

The lopsided nature of the justice system also shines through the delicate handling of police department Internal Investigation Division (IID) records on cops. As defense attorneys, we need these records to challenge testimony of corrupt and questionable officers when they accuse our clients. A cop's credibility is on the line — as is a defendant's liberty. Normally, state prosecutors give us a "heads up" when an officer may have an issue, so we can file requests to get the cop's records. Never does the state just hand them over. They protect the cops as do the city's attorneys, no matter the officer's history. State prosecutors argue that not all IID issues concern credibility and the city considers the records private personnel matters. The state has all but stopped giving us notice as to obvious problem officers. One officer has racked up nearly $200,000 in lawsuit settlements from his "work." Another was previously suspended for misconduct. A third was found by a civil jury to have falsely imprisoned someone. The state defends these and all cops, always arguing against the disclosure of IID investigations to preserve their untouchable witnesses.

Of course, the court could force the state to turn over the records for inspection, as federal judges are currently doing, but rare is that occurrence. The funny thing is that we know what the records say. We know what problem cops have done. Judges, though, think that to ask probative questions at trial, we first need documentation. They seem to be forgetting the basic right to challenge your accuser. Plus, allowing disclosure would force cops to change their behavior through exposure.

Injustices like these occur every day in the courts. Change might not come overnight, but it already seems like we're letting up on our promises to improve the system, face inequality and combat police misconduct. We cannot be led astray.

Todd Oppenheim is an assistant public defender in the Baltimore City Felony Trial unit. His email is

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