Baltimore Sun

Delivering ‘harmony’ to Baltimore

- 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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