Trial for protester offers look into state's courtroom approach to uprising-related cases

When Judge Flynn M. Owens found Morgan Malachi not guilty of failure to obey a lawful order and disorderly conduct, a crowd of activists in the courtroom burst into applause.

“Don't do that,” said Stephen Patrick Beatty, Malachi's attorney, turning toward the seats.

The charges against Malachi stemmed from the April 25 protest at Pratt and Howard streets, near Camden Yards, and offer a sense of what happened near the ballpark that day and the way the state will approach other uprising-related cases.

At the beginning of the trial, the prosecutor, Andrew Costinett, wheeled in a television, on which he would show a variety of footage—from CitiWatch cameras, the Baltimore Police Foxtrot helicopter, and The Baltimore Sun—intending to prove that Malachi knowingly and willfully violated the lawful order to leave the premises and that she acted in a disorderly manner. Costinett also called four witnesses, three of whom were on the SWAT arrest team, as well as the tactical flight officer working the Foxtrot helicopter that evening.

Costinett's first video showed a number of youths, including Allen Bullock, who turned himself in and received $500,000 bond, destroying a police car. The defense strenuously objected, noting that his client is not in any of that footage. Judge Owens overruled.

A second clip, from Citiwatch cameras, showed Malachi as part of the crowd in the intersection of Pratt and Howard streets. A third clip, from The Sun, first shows Malachi with a bullhorn, walking along the police line and talking to a black, female officer, who Malachi called a “disgrace.”

“I don't expect that shit from somebody who looks like you,” said Malachi, a resident of Philadelphia. “You're a big disgrace. Get your mind together, get a fucking education. Have some black pride about yourself, because right now, you're looking real low, yo, you're looking low as shit.”

Malachi continues to insult the officer as a white male officer carrying a billy club comes up and puts his hand on the female officer's shoulder. His face is not visible. The tape then cuts to show the arrest team, with drawn clubs, coming through the skirmish line and grabbing Malachi from the sidewalk. Other protesters are present and grab her, trying to pull her back away from the police. They are pushed away by the officers, but are not arrested.

The officers in the arrest unit all testified that they were ordered by command to arrest Malachi. None of the officers could say precisely who issued the order or why.

Later that same night, City Paper witnessed a similar action where a man who had been verbally taunting officers at the skirmish line in front of the Western District police headquarters was swooped up behind that line by charging officers—who also knocked down and trampled City Paper photo editor J.M. Giordano, who was shooting the incident. The photos he took after they got the man behind the line seem to show one of the same kinds of clubs that are visible in this video, hitting the man's head.

Beatty, the defense attorney, who drew a bit of notoriety during the uprising when he became the lawyer of activist Joseph Kent after Kent was dramatically swept up by police in front of cable news cameras, did not make an issue of the rationale of Malachi's arrest. Instead, he showed that nothing in the state's evidence or the testimony of the officers demonstrated that Malachi had done anything disorderly by exercising her First Amendment rights. When Beatty went so far as to call her a patriot, the judge balked, but he had to acknowledge that there was no evidence of disorderly conduct. Costinett conceded that the “refusal to obey a lawful order” charge was stronger.

It was ultimately the state's own evidence that made it impossible for the judge to find Malachi guilty of this charge—specifically the testimony of Andre Smith, the technical flight officer, who testified that “one of my main jobs is giving the dispersal order over the PA.”

He paraphrased the content of that order as: “This is the Baltimore City Police. You cannot block the intersection or you will be subject to arrest.”

Beatty later pounced on this, showing that in the film provided by the state, Malachi is standing on the sidewalk when she is arrested, which indicates that she did obey the orders coming from the helicopter.

Costinett argued that the order was more general, citing the arrest team's references to an order to disperse. Beatty used the Foxtrot video to show that the helicopter's flight path was wide enough that, if the order were general, then the entirety of downtown, including the players on the baseball field, would have had to disperse. If this was the interpretation of the order, he claimed, it was not a lawful order.

Judge Owens also found reasonable doubt in another of Smith's statements. As Smith laid out the timeline of Foxtrot's flight pattern, he said that the helicopter reached downtown Baltimore at 7 p.m. and could only say that he played the first announcement sometime within the first hour of flight. Because Malachi was arrested at approximately 7:40 p.m., there was a possibility that no order had been issued yet.

Judge Owens openly stated that he did not believe the testimony of Beatty's two witnesses—Malachi's sister and another protester, who claimed they never heard an order—but ultimately found that he could not rule with the state. He commented on the thankless job the police had to do that night and remarked upon how it was made more difficult by people, like Malachi, who came from outside of the city. “But I must abide by the law that I can only convict if satisfied beyond reasonable doubt.”

Malachi, who did not testify, told City Paper that she was arrested because they did not like what she was saying and characterized her arrest as a kidnapping. Beatty remarked, “the First Amendment is alive and well in Baltimore and I hope the verdict today is the first of many to follow in these cases.”

Costinett declined to comment. 

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