Mob Justice in Baltimore

December 21, 2015 Criminal Defense
Gray, after verdict.

Gray after verdict.

Few animals are as dangerous as a lynch mob. Pitchforks and torches, or slogans and signs, the effect is the same; taking justice into their own hands.

Of all the base instincts for rioting, my favorite comes from Paul Beatty’s novel The Sellout. A television news person asks a rioter if the looting and madness will change anything: “Well, I am on TV, ain’t I, bitch?

Selecting venue for a trial is easy when you are banking on a pre-determined outcome.

On December 19th during the “Melissa Harris-Perry” show on MSNBC, Billy Murphy Jr., the Gray family attorney, stated that a venue that is “predominantly white” is unable to “properly” process shooting deaths of African-Americans by white officers. “When you have a county that is predominantly white, they have a difference experience with the police. They see Officer Friendly. We see Officer Unfriendly. Actually, we see Officer Mean. So this is not something that they can properly, in a balanced way, process. And then when you add race to the equation, because some of these people are racist, then you have a really toxic mix that keeps you getting these prosecutors [that] are going to cover up what’s going on in the black community because it’s not in their political best interest to do anything else.”

And Baltimore is following his race-based prescription.

The African American prosecutor Marilyn Mosby quickly filed charges, including murder, against the six cops. Followed by a press conference filled with incendiary language:

“To the youth of the city: I will seek justice on your behalf. This is a moment, this is your moment. Let’s ensure we have peaceful and productive rallies that will develop structural and systemic changes for generations to come. You’re at the forefront of this cause. And as young people, our time is now.”

This was highly popular in the African American community. Prince held a “Rally 4 Peace” concert bringing her on the stage with her husband who is running for mayor. She appeared on the national news networks, and posed for Anne Leibovitz for Vogue.

The judge is African American Barry Williams, who made a career of prosecuting police officers as a lawyer with the Justice Department’s Civil Rights Division.

And seven of the 12 jurors were black.

I defended quite a few police officers charged with manslaughter and other forms of abuse. Several sparked race riots. Racial tensions exploding into violence and looting. I have been involved as a lawyer in every one since the rotten meat riot of 1970. (I described that one in my post Carr & Emory). But of all of them the most contentious was William Lozano. (For a description of the case and trials see my post Lozano: A Tale of Two Cities)

Lozano was convicted in a Miami trial but reversed on appeal. The appellate court found that threats of violence surrounding the trial precluded a fair trial.

“We simply cannot approve the result of a trial conducted, as was this one, in an atmosphere in which the entire community—including the jury—was so obviously, and, it must be said, so justifiably concerned with the dangers which would follow an acquittal, but which would be and were obviated if, as actually occurred, the defendant was convicted. Surely, the fear that one’s own county would respond to a not guilty verdict by erupting into violence is as highly “impermissible [a] factor,” Estelle v. Williams, 425 U.S. at 505, 96 S.Ct. at 1693, as can be contemplated. Surely too, there was an overwhelmingly “unacceptable risk,” Turner v. Louisiana, 379 U.S. 466, 473, 85 S.Ct. 546, 550, 13 L.Ed.2d 424, 429 (1965), of its having adversely affected Lozano’s—and every citizen’s—most basic right under our system: the one to a fair determination of his guilt or innocence based on the evidence alone. The trial court’s failure to grant the motion for a change of venue, therefore, mandates reversal for a new trial.“ Lozano v. State, 584 So.2d 19, 22-23 (Fla. 3rd DCA 1991)

When the case was remanded to the trial court, the circus started all over again. The trial was like a hot potato that no one wanted to handle. From Miami we bounced around the state – Orlando, Tallahassee, and Daytona beach (then cancelled). With appeals and writs in the First District Court of Appeal (2 times), the Third District (3 times), the Fifth District, and the Florida Supreme Court (4 times). When the music ended, Orlando was the last stop and Lozano was acquitted there.

The first cop to stand trial, William Porter, has been charged with manslaughter, second-degree assault, misconduct in office and reckless endangerment. He is accused of ignoring Gray’s requests for medical aid and not putting a seatbelt on him, even though he was shackled and handcuffed.

Freddie Gray is the symbol for this riot. Every one of these high-profile police shootings creates a symbol which inspires street violence and looting, here mainly of pharmacies and clothing stores. Baltimore’s mayor imposed a curfew and sent in the National Guard. The riots lasted a week or so but it didn’t end there. The aftermath was a flood of murders totaling more than 300, up more than 50% from the previous year. The fear of further violence is palpable.

Porter’s lawyers sought a change of venue writing that potential jurors would face pressure from the community:

“In the current climate, saying ‘not guilty’ regardless of the evidence or the lack thereof presented by the state, and then returning to your daily life will take great courage on the part of the citizenry,” wrote attorneys Joseph Murtha and Gary Proctor. “It is possible, indeed probable, that an acquittal of Officer Porter will lead to further civil unrest. But this officer deserves his trial without any ‘sacrificial lamb’ thinking on the part of jury members.”

Judge Williams denied the motion but decided jurors would be anonymous. During voir dire all the jurors said they were aware of the Gray case and the violence that followed it.

At trial, prosecutors accused Porter, not of brutality but indifference, saying he “callously” failed to follow police department rules, securing Gray with a seat belt and getting him medical attention when he asked, that could have saved his life

The atmosphere surrounding the courthouse was not conducive for a fair trial. You cannot get a fair trial with protesters screaming at you every day you enter the courthouse. They were audible inside the courtroom chanting, “No justice, no peace, no killer police,” and “We won’t stop until killer cops are in cell blocks.”

In Gray’s former neighborhood of Sandtown-Winchester, it is nearly impossible to find someone who says that they believe prosecutors will deliver a single conviction. Such certainty has led to intense fear here that, if the officers do indeed go free, the community will erupt in unrest far more destructive than what happened in April.

“There’s going to be killings, shootings, buildings burning,” said William Jackson. “It’s going to be trouble. I’m getting my grandkids, and we gone.”

Duane “Shorty” Davis, a community activist, said the trial will “make or break” the city. “If it doesn’t go over well, what will Christmas be like? They’ll shut things down. If we have more riots, who will feel safe? The world is watching Baltimore.”

“I believe there’s going to be another riot, I really do,” said Missa Grant. “It’s not what I’m looking for. But I really believe that they’re going to react out if somebody doesn’t have to stand up for what happened to Freddie Gray.”

City schools CEO Gregory Thornton issued a memo to parents saying schools will use the “situation” to mentor students in “appropriate ways to express dissent” without violence. “We need to make it clear that student walkouts, vandalism, civil disorder and any form of violence are not acceptable under any circumstances and that students who participate in such behaviors will face consequences.”

Porter’s attorneys asked Williams for a mistrial and change of venue based on the letter, but the judge denied the motion, saying he was confident that the jurors were not letting outside factors influence them.

The police department canceled leave for all officers and opened an emergency operations center and pleaded for calm. The New York Times reported that “officials have for weeks been preparing for the possibility of more unrest.”

The jury deliberated for 16 hours over three days, but told the judge several times it had reached an impasse and finally did not reach a verdict on any of the charges. And who can blame them? Who would want to be held responsible for an acquittal.

The jurors knew there would be a backlash, everything from reporters with TV cameras turning up at their homes to death threats from those unhappy about the verdict. When Casey Anthony was acquitted of murder in the death of her daughter, store owners were put up signs in their windows, ‘Casey Anthony jurors not welcome here.’ One juror left the state because she was afraid for her life.

If we expect an impartial judgment from our peers, how can we ask them to work under pressures like these? If the jurors have to worry about repercussions after an unpopular decision, how can we expect them to return an impartial verdict?

The focus of any criminal case should not be what is politically popular, not an expression of civic pride, and not fear of violence. The principle at the heart of our concept of justice is that “the view of the many” doesn’t determine guilt or innocence, only evidence and reasoned argument.

Addendum: Judge Barry Williams has taken the extraordinary step of asking the former jurors not to talk about the trial. The Baltimore Sun interviewed attorney Susan Elgin who confirmed that she had served as a juror and she said Williams asked them not to discuss the case with the news media. “I would very much like to talk about my experience as a juror. However, Judge Williams asked the jurors not to discuss our service with the press. I want to honor that request and respect the process.”

After court proceedings conclude, jurors are free to talk to anyone. Some jurors in high-profile cases have even written books about their experiences, including one of the six anonymous Florida jurors in the George Zimmerman/Trayvon Martin trial. Williams request/order of the former jurors is unusual and will prevent us from determining how much the issue of race and the potential for violence influenced the hung jury. The breakdown of the votes between black and white jurors is an issue of great public importance especially if they were influenced by the threat of further rioting. While it is permissible for a judge to recommend that jurors don’t talk to the media, it is unconstitutional to order them not to talk.