Baltimore City State’s Attorney Marilyn Mosby

A Question of Competence

This week there was a turn of events that would mortify any self-respecting State’s Attorney. A Baltimore judge vacated a sweetheart plea deal between the Baltimore State’s Attorney’s Office (SAO) and a man accused of setting fire to his ex-girlfriend’s house while she and two other people were inside.

The plea agreement had drawn criticism because the defendant, accused of arson and attempted murder, was given credit for time served in pre-trial detention with the balance of his sentence suspended. The sentencing judge later described the sentence as “inappropriate” and said that she would not have imposed it except for the deal negotiated by the SAO.

The judge revoked the sentence when she was informed that prosecutors failed to give the alleged victims an opportunity to present evidence of the impact of the crime on them as required by law. The attorney representing the victims, Thiru Vignarajah, speculated that the failure to ensure that victims were heard before plea agreements were accepted is a systemic problem within the SAO.

I suspect that he was right. The chaos and ineptitude within the SAO are among the least-discussed consequences of the controversial tenure of Baltimore State’s Attorney Marilyn Mosby but are among the most damaging to city residents. The question of fundamental competence hangs like a cloud over everything that the office does, including the progressive reforms that Ms. Mosby claims to have implemented.

Gaffes by police and prosecutors long have plagued the criminal justice system in Baltimore, and the situation deteriorated after Ms. Mosby became State’s Attorney in January 2015. In April 2015, she decided to run her own investigation into the death of Freddie Gray, described as “parallel” to the one conducted by the Baltimore Police Department.

Less than two weeks after Gray’s death, Ms. Mosby announced that, based on her investigation, six BPD officers had been indicted, one with second degree murder. None were convicted of a single crime.

No credible expert would describe her investigation as anything other than hastily done and inadequate. A retired prosecutor with 21 years of experience in the SAO went a step further, opining in the Baltimore Sun that Ms. Mosby’s actions reflected “either incompetence or an unethical recklessness.” In my opinion, it was a fair assessment.

The Gray case was not the only early warning sign

The Gray case was not the only sign of problems within the office. Last year, an example of how badly Ms. Mosby’s purge of experienced prosecutors weakened the SAO came to light in the form of an extraordinarily egregious error.

In 2004, Tony DeWitt was sentenced to life in prison for the murder of a girl in Baltimore the day after her sixteenth birthday. His conviction was overturned in 2015 after he allegedly discovered an exculpatory document in police files that had not been made available to his attorneys at the original trial. He filed suit against officers of the Baltimore Police Department (BPD) in 2018, alleging malicious prosecution.

A federal judge threw out the civil case because private attorneys representing the officers proved that the document that resulted in his “exoneration” was a forgery. The document supposedly was a police memo that Mr. DeWitt said that he obtained through a public records request that described an interview in which a witness identified another person as the killer.

According to news reports, the authenticity of the document was not challenged by the assistant state’s attorney handling the case, Cynthia Banks. Ms. Mosby later appointed Ms. Banks as the chief of the felony trial unit at the SAO.

The Chicago law firm specializing in such cases that was hired by the city to defend the officers, Nathan & Kamionski, did what the SAO apparently did not do in 2015 — check the authenticity of the memo. The judge who dismissed the suit in March of 2021 referred to “irrefutable” evidence that the memo was a forgery, and a “clumsily” done forgery at that.

A man “exonerated” of murder on the basis of a single, clumsily forged document that no one in the SAO bothered to verify? The magnitude of the error is almost beyond belief. The error was disclosed only because of the related civil case. How many other errors of this magnitude never see the light of day?

I am not accusing Ms. Banks of prosecutorial malpractice because I do not know if it was her responsibility to confirm the authenticity of the document used to free Mr. DeWitt. I will say that failure to do so was an absolutely inexcusable omission in a post-conviction case, especially one involving a convicted murderer.

Whoever was responsible for confirming the authenticity was incompetent and should have been fired. I can almost guarantee you that he or she was not.

Keith Davis, Jr.

Like Ms. Mosby’s role in the tragic Freddie Gray saga, her controversial actions in the serial prosecutions of Keith Davis, Jr. are well known, and I won’t repeat the history. Mr. Gray is awaiting his fifth trial on a 2015 murder charge.

The accepted record for the number of trials and re-trials on the same murder charge is six, and involved prosecution of a Black defendant in Mississippi under circumstances demonstrating clear racial bias. The fact that the prosecution of Mr. Davis by Ms. Mosby is approaching that record has drawn national scrutiny.

The Davis matter goes beyond the law and the facts, and raises another issue: Is it morally just to try a man a fifth time after four prior efforts were unsuccessful? Given Ms. Mosby’s obvious personal investment in the Davis case, and concerns about her own integrity arising from her federal indictment on perjury and fraud charges, it is an issue likely to receive heightened attention.

In addition to issues of fairness and morality, there also is the overarching question of competence. Is Mosby up to the job of being State’s Attorney? Is the office that she reshaped capable of handling its awesome responsibilities?

A systematic purge

When Ms. Mosby took office in January 2015, she immediately began what can only be described as a purge of experienced staff within the State’s Attorney’s Office. According to a story by Wil Hylton of the New York Times, she fired six prosecutors in her first week.

More than 60 prosecutors, or about a third of her staff, left within the next 21 months. According to Mr. Hylton that was about five times the typical rate of attrition.

At the time, Ms. Mosby attributed the turnover to the need to reform the office and change the status quo. Others believed that it had more to do with bringing in staff personally loyal to Ms. Mosby.

Whatever her motivation, veterans of the criminal justice system in Baltimore expressed concern that the sudden loss of so many experienced front-line prosecutors and supervisors would have a negative impact on the struggle to control violent crime in the city. It did.

Five years after the article in the New York Times, a story last year in the Baltimore Sun seemed to accept Ms. Mosby’s account that the continuing turnover in the office was attributable to the pandemic and inadequate salaries, and that the situation had reached crisis proportions. The story was followed by an editorial describing city prosecutors as overworked and overpaid.

Perhaps they are, but it also is possible that the decimation of the office by Ms. Mosby set the stage for its continuing decline and for its inability to retain attorneys; the personal controversy swirling around Ms. Mosby cannot be helping morale. The failure to enforce something as basic and routine as victim impact statements is evidence that management and supervision within the office have broken down.

Every so often Sun columnist Dan Rodricks points out that, during her 2014 campaign, Ms. Mosby blamed former State’s Attorney Gregg Bernstein for the city’s increase in murders, noting that the city has averaged 120 more murders per year during Ms. Mosby’s tenure than during Mr. Bernstein’s. I’d like to know by what measure Ms. Mosby can be considered a success.

I believe that Ms. Mosby is running the SAO into the ground. And I also believe that things will not improve until she is gone.

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Retired lawyer, former social worker, Army vet — former lots of things. Now a part-time writer, published in Washington Post, Baltimore Sun and elsewhere.

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David Plymyer

David Plymyer

Retired lawyer, former social worker, Army vet — former lots of things. Now a part-time writer, published in Washington Post, Baltimore Sun and elsewhere.

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