Mobtown Beat

The State of the State's Attorney Race

Marilyn Mosby's campaign office is in a seemingly otherwise vacant building at the corner of Eutaw Place and North Avenue. In the basement, past several workers making signs, back next to what looks like an abandoned commercial juice bar, she sits in a barren office firing off insults at her former boss, Baltimore City State's Attorney Gregg Bernstein—and the $11 million he spent getting spiffy new offices at the Sun Trust building.

"Victim-witness services needs to be the top priority," Mosby says, sitting in a hard chair near a small table with a laptop on it. "And it's not. His top priority was getting this office space."

This is how one becomes the new state's attorney, of course. You say the incumbent is out of touch and lets murderers go free.

That's what Bernstein did to Pat Jessamy in 2010, winning the office from a 16-year incumbent by 1,167 votes in the Democratic primary.

Whether Mosby can do the same to Bernstein is an open question as early voting starts for the June 24 election. Though she is young, ambitious, and politically wired—she's married to City Councilman Nick Mosby—Marilyn Mosby displays a weak grasp of the office, and its budget. Still, Bernstein has come off as tone deaf, even as he implemented a policy change—which he won't admit to—that may have helped increase the city's murder rate. Mosby cannot be written off.

As of the June 13 campaign filing deadline, Mosby had spent almost $82,000 and had $42,315 still on hand. It's small money next to Bernstein's war chest, which stood at $272,000 on that same date. But Mosby had collected some significant political endorsements, including ones from former Congressman and NAACP Director Kweisi Mfume and union (and get-out-the-vote) powerhouses like the SEIU and AFL-CIO. Among her campaign contributors are Baltimore-born rap mogul Kevin Liles and Martin Cadogan, Governor Martin O'Malley's longtime campaign fundraising chief.

Mosby also has a compelling personal narrative. She grew up in Boston, the daughter of two police officers and the granddaughter of another.

"We were well known in our neighborhood as being the police house," she says. "All the kids came to our house. We had an indoor pool, in the inner city of Boston."

Bused to a far-off, nearly all-white school, she felt subtly pressured to embody the African-American ideal. Although the experience was hard, "it made me who I am," she says. "I wouldn't trade it for the world."

But it was the murder of her cousin 20 years ago that set her on her current course. He lived across the street, she says. His name was Diron. He was an artist; he wanted to go to Morehouse College. And he was in her house moments before he was shot to death.

"I heard him leave the house," Mosby says. "I heard gunshots and I heard a scream. I opened the door and saw someone running, and I saw someone lying on the street but I did not recognize it as him."

The guy who shot him was looking to rob a dealer named Deon, and apparently misheard his name. Diron had a bike, nice sneakers. The shooter asked him to turn over his stuff and Diron, according to Mosby, had no idea what he was talking about, there on the block where everyone knew he was part of the cop family.

The case was solved because a neighbor stepped up to testify, Mosby says.

Mosby says the incident inspired her to become a prosecutor.

She received a scholarship to Tuskegee University, where she met her future husband, who—after she graduated from Boston College Law School—brought her home to Reservoir Hill in Baltimore. "He points to a 20-year dilapidated shell and I looked around at the open-air drug market," Mosby says. "He says, ‘It's about investing, about realizing the potential of our dreams.'"

Marilyn joined the States Attorney's Office while Nick, an electrical engineer, who works for Verizon and then ran for—and won—the city council seat held for years by Belinda Conaway.

In this way the Mosbys have established themselves as an up-and-coming power couple. Mosby says her five years as an assistant prosecutor (she left in 2011 to work for an insurance company) trumps Bernstein's four in office and 25-plus as a trial lawyer. "When you look at my experience, I have more experience than the incumbent," she says, touting her management experience as supervisor of the early resolution court, where she says she trained the incoming prosecutors on courtroom decorum and case management.

"He was a federal prosecutor 20 years ago," she says of Bernstein. "I was day to day in court, dealing with Baltimore juries."

Bernstein has not done enough to break down the culture of distrust many Baltimore citizens harbor toward law enforcement, Mosby says, citing as examples the deaths of Matthew Hersl and Tyron West. The family of Hersl, a City Hall employee who was run down by a junkie fleeing police last spring, were stunned when the driver was at first set free by police.

Prosecutors eventually told the family they were going to offer a plea deal, and the family held a press conference to decry that decision.

Johnny Johnson eventually pleaded guilty to vehicular manslaughter and was sentenced to 11 years in prison, including 10 for Hersl's death—the maximum allowed under Maryland law.

Bernstein said the law was "woefully inadequate," But Mosby says Bernstein should have included Hersl's family in discussions of the case all along.

Tyrone West, whom police stopped in a car on July 18, 2013, died of an apparent heart attack as police tried to subdue him after spotting cocaine in his sock. Bernstein's office investigated the police and in December declined to charge any of them criminally. Since shortly after West's death, West's family has waged a campaign against Bernstein, dogging him at public appearances and picketing his office, calling him racist. It is a sentiment that resonates in some precincts—and it's one that Bernstein has been unable to completely dispel.

Bernstein says his office looks at every case where there is an allegation of impropriety or brutality by police.

"We have prosecuted police officers in the last three and a half years for the use of excessive force," he says in an interview at his office. "We have investigated some officers where we concluded that they did not exceed the objective standard of reasonableness."

Mosby says she doesn't know if she would have done anything differently, "but this family waited nine months to know how their loved one was killed.

"I'm going to be much more transparent," she says.

Bernstein admits he could have been more transparent early in his term. "But," he says, "there is an obligation as an attorney not to speak publicly about an ongoing matter. There is an ethical rule. And I've talked a lot about it with people. Initially I might have erred more in trying to stick to the ethical rules."

Being more transparent is "one of the reasons I spend so much time going to community meeting almost every night," Bernstein says.

Mosby criticizes Bernstein for firing nine of the 11 community liaisons who used to do much of that work, replacing them with three geographically-based community prosecutors. His community prosecution model was not well implemented, Mosby says.

But in contrast to Jessamy, who threatened to sue the city over budget cuts that targeted those community coordinators in 2010, Bernstein eliminated those jobs and quietly endured further cuts to his office. The agency's budget fell from nearly $33.5 million in fiscal 2009 to 31.6 million in 2012, before bouncing back to $35.4 million in fiscal 2013.

Managing that budget is the real work of the state's attorney.

Mosby says she wants to create a premier victim services unit. She says she would move some funds from other priorities. But, asked what percentage of the office's current budget go to victim services, and how much she would allocate, she says she is unsure of those figures.

According to the past four budgets, victim and witness services grew slightly under Bernstein the first two years but have since been pared back. There were 11 funded positions in the unit in 2010, and only nine in the current budget, which takes a bit over $1 million of the State's Attorney's Office's $35.9 million total. It's not a policy focus the way, say, "violent repeat offenders" is.

And "violent repeat offenders" is about the most-repeated phrase in Bernstein's campaign.

"We've been successful in prosecuting almost 500 more dangerous felons every year than we had in the past, as well as successfully prosecuting more than 100 additional gun offenders every year," Bernstein says, citing his campaign literature. It is also where the U.S. Attorney's Office has turned its attention in recent years, rolling up street-level and prison gangs in big, splashy raids that end up, a year or two later, sending many young men to prison for decades.

Mosby says her conviction rate as a prosecutor was 80 percent, a figure she says put her in the top 20 percent of prosecutors in the office. Bernstein says his whole office's win rate is up, though he hasn't published any specific percentage numbers.

But these are the kind of stats that some observers—most notably David Simon, the TV writer who spent many years on the cop beat as a Sun reporter—say lend themselves to dishonesty.

Beginning in 2011, murders could only be charged with the express consent of a prosecutor. For many years before, the process had been more collaborative and, as a result, many more accused murderers were arrested and jailed while the cases against them were made stronger, Simon wrote on his blog, "The Audacity of Despair," in September of 2012.

The change not only reduced the number of recent murders that had been charged by more than 30 percent in the first year, but it also boosted Bernstein's office's conviction rate. Fewer cases charged meant the prosecutors needed fewer victories to make an impressive statistic, Simon charged.

The policy change may have caused more deaths. In 2011 police thought James Berry III was the shooter in a triple shooting and murder in Bolton Hill, but prosecutors would not let them charge him.

They changed their minds only after another triple shooting in 2012, which killed two brothers and critically wounded their mother. With police investigating Berry in that case, Bernstein's office suddenly decided that they did, indeed, have enough evidence to charge him for the previous murder. That case is pending.

Berry, once a promising boxer, had been acquitted of a murder charge in 2008, according to a Baltimore Sun story about the charging controversy.

In 2012, Bernstein denied he had made any policy change regarding charging homicide cases, notwithstanding the reassignment and retirement of two high-ranking police officers in the homicide division over the changes. He's sticking with his story even now.

"You're just wrong," Bernstein says. "The state's attorney's office always had the unilateral ability to charge."

While acknowledging "the healthy tension" between cops and prosecutors, he boasts (again—this has been the party line all along) that his office's relationship with the police "has never been better."

Between 2011 and 2013, the city's murder rate increased approximately 20 percent.

It's a statistic seldom on Mosby's lips as she complains about the money Bernstein spent moving his 400-odd staff to the SunTrust building—$11 million, she says—a block from the court houses.

Mosby says she would have used that money for victim and witness services and to build trust in the community, but Bernstein has no regrets as he speaks around the huge conference table one of the paneled rooms his agency rents.

The new office, Bernstein says, "has made us enormously more efficient and effective. It's provided a safe environment for witnesses and victims." He says in the Courthouse East some witnesses and victims needed to walk right by the family members of the defendants. "Now we have this safe and secure environment for them."

He shows off the 11th floor conference room that has been converted into a playroom for kids so they and their parents can talk about the crimes that were committed against them. There's a huge world map on the wall and toys on the floor.

Assistant State's Attorney Kelly Burrell is in there. She says the old office in Courthouse East required her to share a bathroom, where she and others under her care occasionally ran into the defendants. "Our biggest concern is getting the fear factor out of the kids' mind," she says. "They‘re better [witnesses] in court because we have a process."

Edward Ericson Jr.

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