De­liv­er­ing ‘har­mony’ to Bal­ti­more

Baltimore Sun - - COMMENTARY - By Mar­i­lyn Mosby Mar­i­lyn Mosby is Bal­ti­more’s state’s at­tor­ney. Her email is mail@stat­tor­ney.org.

Hav­ing learned the hard way through first-hand ex­pe­ri­ence, when al­le­ga­tions of po­lice mis­con­duct arise, prose­cu­tors are of­ten seen as pro­tec­tive of po­lice and un­likely to pros­e­cute cases of wrong­do­ing. De­spite tak­ing an oath to ad­min­is­ter jus­tice equally and fairly to ev­ery­one re­gard­less of one’s race, sex, re­li­gion, so­cio-eco­nomic sta­tus or oc­cu­pa­tion, ex­ac­er­bat­ing fac­tors, such as a fear of strain­ing the po­lice-prose­cu­tor re­la­tion­ship that other case­work de­pends upon, can make look­ing the other way on po­lice mis­con­duct seem like the lesser of two evils.

Four months into my term and im­pas­sioned by the ex­plicit oath that I was sworn to up­hold as the chief prose­cu­tor for Bal­ti­more City, I broke from a longestab­lished pro­tec­tive norm in the pur­suit of jus­tice for a 25-year old black man against a few mem­bers of the Bal­ti­more Po­lice Depart­ment and learned hard, valu­able and chal­leng­ing lessons along the way.

The chal­lenges that I was pre­sented with through­out the course of 14 months served as a daily tes­ta­ment to po­lice and prose­cu­tors hav­ing both in­her­ited a legacy of failed poli­cies, laws and prac­tices in the crim­i­nal jus­tice sys­tem, which leaves us to ask not whether re­form is needed, but rather: How it can be most fully achieved?

As the state’s at­tor­ney for Bal­ti­more City, my of­fice’s role is to en­sure that the truth is known and jus­tice is done when there are al­le­ga­tions of po­lice mis­con­duct the same way we en­sure this with any other case. Truth and jus­tice in the face of mis­con­duct are most fully re­al­ized when my of­fice is able to work with the Bal­ti­more Po­lice Depart­ment in a re­la­tion­ship of re­form. Ac­cord­ingly, the pol­icy pro­pos­als that I’ve de­vel­oped are de­signed to in­crease part­ner­ship be­tween com­mu­ni­ties, prose­cu­tors and the po­lice. These pro­pos­als ad­dress the in­ves­ti­ga­tion, prose­cu­tion and ad­min­is­tra­tive hear­ing phases of po­lice mis­con­duct al­le­ga­tions. These pro­posed poli­cies can bet­ter pro­tect good of­fi­cers who are tak­ing time away from their fam­i­lies, risk­ing their lives and serv­ing the com­mu­ni­ties they took an oath to serve.

My first pro­posal in­volves re­plac­ing the typ­i­cal po­lice in­ves­tiga­tive team with one that in­cludes im­par­tial in­ves­tiga­tive rep­re­sen­ta­tion from the po­lice depart­ment, the prose­cu­tor’s of­fice, state po­lice and the Civil­ian Re­view Board. This col­lab­o­ra­tive ap­proach will im­prove trans­parency, re­move ad­di­tional pres­sures of po­lice in­ves­ti­gat­ing fel­low of­fi­cers and elim­i­nate in­her­ent bias and pub­lic skep­ti­cism dur­ing the ear­li­est and most crit­i­cal stages of the in­ves­ti­ga­tory phase.

The abil­ity to act in­de­pen­dently and en­sure a proper in­ves­ti­ga­tion re­quires not just im­me­di­ate and com­plete ac­cess to in­for­ma­tion, sources and ev­i­dence, but it re­quires the power to con­duct an in­ves­ti­ga­tion it­self. My sec­ond pro­posal is to grant po­lice pow­ers to state’s at­tor­ney of­fice in­ves­ti­ga­tors, much like they do in Gar­rett, Dorch­ester and Tal­bot coun­ties, and other ju­ris­dic­tions na­tion­wide. Such pow­ers in­clude the abil­ity to is­sue war­rants, make ar­rests and carry firearms. These re­forms will al­low state’s at­tor­ney of­fice in­ves­ti­ga­tors to par­tic­i­pate as full part­ners in mis­con­duct in­ves­ti­ga­tions.

My third pro­posal is the de­vel­op­ment of a mem­o­ran­dum of un­der­stand­ing be­tween lo­cal prose­cu­tors and the U.S. at­tor­ney’s of­fice, al­low­ing fed­eral prose­cu­tors to re­view cases of mis­con­duct at the re­quest of the lo­cal prose­cu­tor fol­low­ing a “nocharge” de­ci­sion, giv­ing them the author­ity to bring charges un­der state law in state court by way of “cross-des­ig­na­tion.” This ap­proach would pre­serve lo­cal lead­er­ship and ac­count­abil­ity while in­tro­duc­ing third­party re­view in or­der to but­tress pub­lic trust in the process.

The jury trial as an in­sti­tu­tion re­flects our demo­cratic val­ues of rep­re­sen­ta­tion and de­lib­er­a­tive de­ci­sion-mak­ing. The 6th Amend­ment does not give crim­i­nal de­fen­dants that right to a bench trial. At the fed­eral level, if a de­fen­dant seeks to waive his/her rights for a jury trial, the court and the prose­cu­tor must also agree to that bench trial. Hence, state law should al­low prose­cu­tors and judges to re­ject a de­fen­dant’s pref­er­ence for a bench trial, whereby a di­versely com­posed jury de­liv­ers a higher qual­ity of jus­tice in con­trol­ling bias in the court­room, helps main­tain pub­lic trust and im­parts cred­i­bil­ity on the out­come of the case, es­pe­cially as it re­lates to po­lice mis­con­duct.

Lastly, House Bill 1016, passed by the Gen­eral As­sem­bly in 2016, au­tho­rizes mu­nic­i­pal­i­ties to al­low pub­lic par­tic­i­pa­tion on po­lice hear­ing boards but does not re­quire such par­tic­i­pa­tion. Rather this bill leaves lo­cal gov­ern­ments with loop­holes and broad dis­cre­tion to de­fine the strength of pub­lic par­tic­i­pa­tion. Thereby, Bal­ti­more City should pass leg­is­la­tion re­quir­ing the max­i­mum num­ber of civil­ians au­tho­rized — two — to be in­cluded on hear­ing boards with vot­ing power. Bal­ti­more should also avoid cre­at­ing al­ter­na­tive hear­ing boards as part of a col­lec­tive bar­gain­ing agree­ment, which could al­low of­fend­ing of­fi­cers to side­step a board with civil­ian par­tic­i­pa­tion. Fi­nally, Bal­ti­more should cap the size of the board to five mem­bers — two civil­ians and three sworn of­fi­cers to prevent civil­ian in­put from be­ing di­luted by a large board.

The re­al­ity is that a ma­jor­ity of po­lice of­fi­cers are up­stand­ing ci­ti­zens who per­form a vi­tal role in our com­mu­ni­ties. By ac­knowl­edg­ing this truth, we must also ac­knowl­edge the in­iq­uity of fail­ing to ad­dress the prob­lems that have come to de­fine many peo­ple’s per­cep­tions of po­lice of­fi­cers. To that end, when it comes to po­lice mis­con­duct, our com­mu­ni­ties must know that po­lice who break the law will be held ac­count­able. When prose­cu­tors are re­luc­tant to bring charges against po­lice of­fi­cers, even in high pro­file and trau­ma­tiz­ing cases of mis­con­duct re­sult­ing in death, the com­mu­ni­ties see fur­ther ev­i­dence of a bro­ken sys­tem.

I ac­knowl­edge that a great deal of the ten­sion we face arises from our fidelity to the com­mu­ni­ties we feel most re­spon­si­ble for: the great mass of up­stand­ing of­fi­cers, the vic­tims seek­ing jus­tice, and the neigh­bor­hoods search­ing for peace. How­ever, our loy­al­ties must be to each of these in­ter­ests, and our ser­vice to one must not come at the ex­pense of the oth­ers. I look for­ward to forg­ing part­ner­ships that strike this bal­ance, and in so do­ing, de­liver Bal­ti­more the har­mony it de­serves.

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