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by Peter Moskos

June 10, 2015

"Daily Measurables"

My long-standing question related to Freddie Gray -- no doubt tops on everyone's list -- has always been, "Why the hell were officers doing much of anything at 8:45 on a Sunday morning?!" The Baltimore Sun reports:
About three weeks before Freddie Gray was chased ... the office of prosecutor Marilyn Mosby asked police to target the intersection with "enhanced" drug enforcement efforts.
...
"It must be understood that Mrs. Mosby was directing these officers to one of the highest crime intersections in Baltimore City and asking them to make arrests, conduct surveillance, and stop crime," the defense attorneys wrote. "Now, the State is apparently making the unimaginable argument that the police officers are not allowed to use handcuffs to protect their safety and prevent flight in an investigatory detention where the suspect fled in a high crime area and actually had a weapon on him."
...
[Western District commander Maj.] Robinson told [Lt.] Rice and the other officers to begin a "daily narcotics initiative" focused on North Avenue and Mount Street, according to the email, and said he would be collecting "daily measurables" from them on their progress.

"This is effective immediately," Robinson wrote, noting that the officers should use cameras, informants and other covert policing tactics to get the job done.
...
"They want increased productivity, whether it be car stops, field interviews, arrests — that's what they mean by measurables,"
...
Butler said that he has never seen such orders come from the state's attorney's office but that they come at the request of politicians and community leaders all the time.

"Once you're given an order, you have to carry it out. It's just that simple," he said.
Defense attorneys want Mosby removed from the case because of her involvement in the police initiative.

24 comments:

Anonymous said...

You need to correct this. You left the impression that the "measurables" definition was given in the email when that's a quote by that self-serving leader of the criminal conspiracy to not hold any BPD officer accountable - Lt. Butler.

Peter Moskos said...

No, I don't. You need to read more carefully.

Adam said...

Either way, Lt. Butler's definition of "daily measurables" is undoubtedly correct.

As for the defense motion, the argument that Mosby should be removed from the case seems pretty weak to me. (Though that's not to say her office hasn't made this case a complete shit show.)

Alex Elkins said...

It's a very significant revelation, especially that bit about "daily measurables" and public/political pressure.

I'm reminded of testimony given by the great UCLA law professor Arthur Sherry before a CA state hearing in 1958:

First part: Sherry says that police departments "are usually very responsive, it has been my experience, to public pressures; tremendously responsive to them and they feel compelled in many situations to act even where they should not act."

Second part: "Nobody really is in charge of the police department except the chief of the police and of course a city administration; a mayor or city manager of whatever the case may be. We see now to lack a proper kind of compulsion to prevent bad police practices."

And third part: "Again, I think this is something the police deserve. They deserve some kind of consideration and they deserve some understanding of the pressures which compel them to act. Maybe they would not get those pressures if the city administration realized that legally they could not act."

That goes for community leaders, too, who ask the police to clear corners when those corners--sometimes--constitutionally cannot be cleared.

(Sherry was reporting his findings from the massive American Bar Foundation fieldwork on the daily operations of the criminal justice system, which included direct observation of police on patrol in Michigan, Kansas, and Wisconsin, which he was in the midst of completing.)

Peter Moskos said...

Adam, Mosby is going to win her battle (not be removed) and lose her war (convicting officers).

David Woycechowsky said...

Difficult to say whether the officers will be convicted until we know whether their trial will be moved out of Baltimore. Also, evidence unbeknownst to us could have an affect. For example, if the secret autopsy ends up suggesting that Freddie was significantly injured before he got in the van, then there will probably end up being some bargains.

Jeffrey Imm said...

Peter Moskos - you are determined to be a drum major in the campaign to stop one of the few members of the justice community Marilyn Mosby, who is standing up to criminal behavior by extremists in the police. What do you think that will accomplish? You may think extremists within the police will like this. But what will it actually do for law and order? Enemy terror groups against the USA use the police brutality and the failure to stop it as recruitment tools. ISIS no longer has to develop recruitment videos, because they just need to show what extremists in American police are doing. And the extremists in Baltimore PD are not helping - sitting in the dark with hoods on at CNN- so they can attack the public. They are actively helping the enemies of this nation.

Adam said...

Jeffrey Imm:
Do you think that scrutinizing the manner in which Marilyn Mosby prosecutes these cases amounts to "stop[ping]" her from "standing up to criminal behavior"? Should we get rid of criminal defense attorneys? I mean, what do they actually do for law and order?

campbell said...

If we scrutinize Mosby the terrorists have won? I gotta say, I didn't see that one coming.

Dave- IL said...

Jeffrey:
Wow, that's a new twist on terrorist-baiting. First pot heads have the blood of terror victims on their hand and now Professor Peter Moskos is working hand in glove with god's favorite butchers for debating the role of Mrs. Mosby. So are you going to call the FBI to put Peter on a watch list for aiding terrorists now?

Let's raise the level of discourse for god's sake. Can we argue about these issues without idiotic demonization. You sound like the rabid love child of Dick Cheney and Al Sharpton.

Damn internet trolls. That's why the terrorists hate us!

Anonymous said...

Lots of officers in the BPD are going to find themselves looking for new jobs one way or another if this keeps up.

Adam said...

According to the latest court filing, Mosby is sticking to the false arrest theory, even though the grand jury declined to indict on false imprisonment. She's pressing the assault and misconduct-in-office charges in part based on the theory that the arrest was illegal. She also claims they assaulted Gray by not seat-belting him in, such that the van became an "instrumentality" that made contact with Gray. In earlier filings, they seemed to suggest that the arrest was improper even if the knife actually was illegal, because they technically arrested Gray when they put him in handcuffs, before they found the knife. Never mind that BPD general orders and about a million court cases say cops can use handcuffs during a Terry stop without elevating it to an arrest. This is sheer lunacy...


David Woycechowsky said...

There is no automatic rule that handcuffing is an arrest. There is no automatic rule that handcuffing is not an arrest. Handcuffing is a factor to be considered whether a given detention has been elevated into an arrest, but that determination must be made on a case by case basis in view of the totality of the circumstances. In many cases, handcuffing the person, but not moving them will not be deemed to be an arrest. However, this can change if other relevant circumstances come in to play. For example, if one is proned with an officer on his back during a handcuffing, then that may make it marginally more likely the handcuffing will be deemed an arrest. If the police watched the suspect take a nasty spill and hit his head, and then proceed to prone and cuff anyway, then it is even more likely that the detention will be deemed to have escalated into an arrest.

Also, it may be that the crime of false arrest applies to detentions effected withot reasonable suspicion. I understand that most white people are assuming that the Wardlow case automatically means that the police had reasonable suspicion, but, as the dissent (concurrence?) in Wardlow points out, Wardlow does not establish a blanket rule like that, and that under Wardlow, not all running from the police is rs. In fact the dissent in Wardlow points out that some people may run from police if they feel that they have been mistreated by police in the past. Did the detaining policeman know that Gray felt he had been mistreated by police in the past? If so he may not have had RS, and that, in turn, may mean that he made a false arrest merely by his detainment.

This is an interesting legal case. Mosby may not win on all points. Sheer lunacy it is not -- it is just very different from the typical criminal case where the popo are presumed to be the good guys and the defendants are presumed to be the bad guys. It actually makes this case a lot more interesting and instructive on what the crim pro law (as contrasted with lore, typical practice, received wisdom, etc.) actually is, because it turns the usual factual paradigm on its head.

Peter Moskos said...

Whatever conditions that may exist in Wordlow are met here: high crime area. High drug area. High violence area. Special attention area. And then you have a known criminal drug defendant fleeing at the sight of police.

You couldn't design a situation more in line with Wordlow giving police reasonable suspicion to stop somebody.

But indeed, the legal details are a lot more interesting than one normally gets in such a case. But I think in the end it will be seen to be shear lunacy because Mosby is going to lose on all of this. Especially if any of her case rests on the facts that happened before officers decided to arrest Gray. Then things get a little less clear cut with a knife that seems to have been legal and not seat-belting Gray in the van. I could see trouble coming from both. But I still reasonable doubt will prevent any conviction.

Adam said...

It would not be lunacy for a defense attorney to argue in a suppression hearing that the officers elevated the Terry stop to an arrest based on the manner in which they detained Gray. It would not be lunacy to argue that in this particular case, unprovoked flight didn't amount to reasonable suspicion (though I truly doubt any judge would find the cops lacked RS to stop Gray).

What *is* lunacy is to charge a cop with false imprisonment or assault based on the manner in which he conducted a Terry stop, when (as your long, detailed post illustrates) there are a lot of complicated questions of criminal procedural law that could be decided this way or that.

Under Mosby's approach, a cop is guilty of a crime every time he conducts a Terry stop or arrest and a judge later determines that the officer's suspicions fell below the requisite level (RS or PC)--even if the officer's legal determination is one about which reasonable minds could differ. That strikes me as insane.

David Woycechowsky said...

Here is probably what Mosby is thinking:

1. It is quite possible that Freddie's injuries began before he was loaded into the van. Perhaps his larynx got crushed before he got in the van. Perhaps the process of detainment and then arrest somehow put the vertebrae in his neck out of alignment, or started a crack in a vertebra.

2. But I don't yet have good evidence yet to prove / disprove #1. And it may be very difficult to get the police to surrender evidence relevant to #1.

3. Wardlow leaves the door open to argue that there was no RS. For example, maybe there is a radio transcript of the policeman saying that he was hunting Freddie Gray because he felt that Gray had not been fully candid in his role as a police informant.

4. I am unlikely to win on #3, but I do have sufficient cause to pursue a criminal claim, even if I will likely lose (Policemen are the first to tell you that "probable cause" does not mean "more likely ultimately victorious at a crim trial than not").

5. I will use my false arrest claim to get good robust discovery from the police regarding everything that happened prior to loading Gray in the van.

6. Using the discovery I get pursuant to point #5, I can look at that evidence and decide, based on the discovered evidence, whether to: (i) drop charges against the detaining / arrest policemen; (ii) show that they did have an ulterior, improper motive for chasing Gray; or (iii) up the charges if Freddie was seriously injured before the cameras (that is, the two cameras that we know about so far) started rolling.

It is kind of analogous to (but not exactly the same as) when police pull over a car for a busted license plate light. You get the evidence you need by all means that the law allows.

FUN FACT: A federal judge decided that the police did not have reasonable suspicion to detain Oscar Grant when he briskly walked away from Anthony, Marysol, Johannes and the gang -- and that was a situation where police were actually called.

David Woycechowsky said...

and another thing:

police are fond of saying that if you are having difficulty breathing then you can't talk (I don't agree with that, but you hear it a lot)

when I watch the Freddy Gray video I notice a conspicuous absence of Gray talking.

campbell said...

Then things get a little less clear cut with a knife that seems to have been legal

I'd really like to get a look at that knife. Given the way Mosby is applying the law here I'm not convinced her legal reasoning is legit on that score either.

Adam said...

I agree with #1. If Gray was seriously injured before being loaded into the van, and the officers dragged him while he was crying out in pain and asking for help, then the reckless endangerment charge makes a lot of sense. That charge would turn on whether a jury buys the "we thought he had jailitis" defense. (I bet they *did* think he had jailitis, but that may not be enough to get them off the hook).

But based on recent court filings, that doesn't appear to be Mosby's theory. She says the arresting officers committed assault and misconduct by arresting Gray without PC. A stop that wasn't actually supported by RS or an arrest not actually supported by PC won't necessarily even get you CIVIL liability. If reasonable minds could differ about whether the stop was good under Wardlow or the knife was actually prohibited under City code, then the officers would be protected by qualified immunity. It's distressing to me that the SAO thinks they could be *criminally* liable when I don't think a civil plaintiff would even get over the qualified immunity hurdle.

Also, I'm not sure I follow what you're saying about discovery. It sounds like you're describing a civil lawsuit in which it's the SAO suing the BPD. The Baltimore PD did it's own investigation and turned everything over to the SAO. If I'm not mistaken (and I may be), prosecutors don't rely on discovery to get incriminating evidence. They just issue subpoenas, have investigators serve search warrants, etc. Discovery, for the prosecutor in a criminal case, is about learning what the defense is going to put on at trial.

David Woycechowsky said...

@Adam:

1. serving subpoena's is a form of discovery. The point is that there is going to be a lot less nonsense in the manner in which the subpoena's are responded to if the subpoena's are relevant to an ongoing criminal trial.

2. The concern about the Baltimore police investigation of itself is that it may not have collected all of the relevant evidence for various reasons. Mosby wants evidence that the Baltimore investigation may have considered irrelevant as being outside the scope of its investigation. For example, the Baltimore investigation may have believed that things the policemen did and said in the hours and minutes before chasing Gray were outside the scope of the investigation. They may even believe that everything that happened before Freddie was loaded in the van was outside the scope of its investigation. Nevertheless, if the officers said, "Gray burned us and now he is going to pay" then this is the type of thing that I am sure Mosby wants to know. But she has to have a legally colorable reason to ask for that info, and, more importantly, ask for it in a context where her request has some serious "teeth."

3. Normally discovery in a criminal case is just about finding out what (if anything) the defense will put on at trial because the police (and/or other law enforcement) collect the evidence that tends to show guilt. Can you see why that paradigm breaks down here in the Gray case?

Adam said...

I guess I just don't share your skepticism about the thoroughness of the BPD's investigation. If, for example, the SAO wants recordings of radio communications from that entire morning, they can just pick up the phone and ask for them, and the BPD investigators will make a CD and send it to them. The detectives are not going to ask "What is your legally colorable reason for this request?" The SAO doesn't need to file dubious criminal charges to jump-start "discovery" as a means of getting potentially relevant evidence.

Peter Moskos said...

I'm sure they have all the radio. It's public. It's recorded. It's easy to get. I'm also sure officers never said anything like "Freddie is going to pay." Even if they did, which they didn't, it wouldn't go out over the radio. But what do I know?

What I think is interesting about discovery is that it's supposed to be used only for the benefit of the defendants, right? I mean the prosecution could use it as a kind of fishing for evidence thing, but in theory it's to find evidence about the innocence of the suspects, right? SO what will Mosby do if/when evidence comes to light that doesn't support her case? I guess we'll find out.

David Woycechowsky said...

@ Adam

I am sure that is how it works in 99% of the cases. I think we are in the other 1% here.

David Woycechowsky said...

@ Prof Moskos:

It is not uncommon in civil cases by regcits against police for lawyers to find evidence that team police/prosecutor didn't find and/or consider when they investigated the policeman.

One example that springs to mind is the Jonathan Ayers case, where Rickman didn't notice that Chance Oxner hadn't done required firearms training.

Another example came up eleven days ago in a fascinating case out of Madison, WI (policeman messaged "no witnesses, no problem" not too long before killing a drunk guy that he probably had no legal prerogative to kill):

https://scholar.google.com/scholar_case?case=15797339465561025297&q=%22fourth+amendment%22+%22qualified+immunity%22+heenan&hl=en&scisbd=2&as_sdt=6,33