Baltimore State's Attorney Marilyn Mosby announced five proposals to make it easier to investigate and prosecute police for misconduct on Thursday.
"To those who have been hurt, I promise that you are heard. You are seen. Your presence is felt," Mosby wrote in the opening of the proposals, echoing the language she used when people around the world watched her announce charges against the six officers involved in the death of Freddie Gray. She said in a public statement that she learned the faults in the present system "the hard way through firsthand experience" in the trials that followed those charges and failed to bring a single conviction.
"There are two dangers to avoid in the prosecution of police misconduct: (1) the pressure for unjust leniency on the police, and (2) the possibility of a breakdown in relations between a prosecutor's office and the local police force when the decision is made to prosecute Officers," Mosby wrote.
In what may be the most controversial proposal—and the one most directly tied to her experience in the police trials for Gray's death—Mosby argues that "Federal case law confirms that defendants have no constitutional right to a bench trial, and that the prosecutor has a defining voice in whether a bench trial is allowed."
Judge Barry Williams found three of the six officers charged in Gray's death not guilty. The jury in the case of William Porter, the only officer to face one, could not arrive at a decision, resulting in a mistrial. After the acquittal of Lt. Brian Rice, the highest ranking of the officers, Mosby's office dropped all charges.
Mosby cites figures that judges are subject to implicit racial bias, and argues that "a diverse jury, because it will contain a diverse pool of deliberators, may be the best way to control for bias in the courtroom."
"Given the potential benefit of limiting any impact from implicit bias, it is worth considering giving the judge and prosecutor a role in electing a bench trial as is done in the federal court system," she wrote. Currently, if a defendant requests a bench trial by judge and does not want to exercise their right to a jury trial, the prosecutor is not allowed to object.
Mosby has no power to enact this reform and would rely on the legislature, where critics say it strips the right to a bench trial from the accused. According to The Sun, Robert Zirkin, a state senator who chairs the judicial proceedings committee, has called the idea "moronic."
"Just because you lose a case doesn't mean you change the entire framework of defendants' rights," he said.
In another proposal Mosby calls for the police department's Special Investigation Response Team—which was formed after the Force Investigation Team was disbanded following the Gray investigation—to be replaced by a Collaborative Investigation Team. In one vision, this team would be made up of investigators from the police, the state's attorney’s office, the civilian review board, and the state.
Mosby also calls for her office to be granted police powers in cases of police misconduct or in custody deaths. In the Gray case, prosecutors claimed that police investigators refused to serve warrants for the personal cellphones of the officers involved.
Because of the close working relationship between police and prosecutors, Mosby would like to see federal prosecutors, currently limited by state law, empowered to prosecute cases against police officers for crimes that are not federal. But Mosby acknowledges that this plan likely faces an uphill battle, given resistance to a perceived "over-federalization" of crime, and some aversion to a perceived expansion of federal Power” and proposes, as an alternative, more limited "cross designation" where local and federal prosecutors could work together.
Mosby said she developed the proposals with other prosecutors and was accompanied by leaders of the Association of Prosecuting Attorneys (APA) as she announced the proposals at Coppin State University.
"The policy reform proposals announced today, for this great city of Baltimore, address both resources needed to properly investigate and prosecute as well as provide for the necessary accountability," said David LaBahn, President of the APA.
"We will consider all recommendations that serve to improve our processes and enhance our reputation in the community," Baltimore Police Commissioner Kevin Davis said in a statement.