How the Baltimore State’s Attorney’s Office’s approach to prosecuting police misconduct can play out in the courtroom

In 2015, about four months into her tenure, Baltimore State’s Attorney Marilyn Mosby made the controversial decision to charge six police officers in the arrest and death of Freddie Gray, a 25-year-old Black man who suffered a fatal spinal injury in the back of a patrol wagon.

Though she failed to secure a single conviction, Mosby defended her decision to bring the cases. She said she took an oath to treat everyone equally and fairly under the law and apply one standard of justice regardless of race, color, sex, creed, socioeconomic status and occupation.

“As prosecutors, we are ministers of justice. And it is our ethical obligation to always seek justice over convictions,” Mosby said during a news conference in Sandtown-Winchester on July 27, 2016. “As prosecutors, we do not determine guilt or innocence of individuals but rather present evidence to a judge or a jury to make that determination.”

Fast-forward several years.

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During a seven-week period this past summer, the Baltimore State’s Attorney’s Office took six cases involving allegations of police misconduct to trial. Prosecutors failed to secure a conviction in four of them. Judges found three police officers not guilty, while a jury in another case could not reach a unanimous verdict but voted 11-1 in favor of acquittal.

Throughout the United States, some elected prosecuting attorneys have shown a greater willingness to charge police officers with crimes — even if that means potentially losing at trial. The development represents a change, one expert said, from when the state would only bring cases it was sure would lead to a conviction.

The facts and circumstances of every case are different. The trials this past summer, though, provide a window into how that approach to charging law enforcement can sometimes play out in the courtroom in Baltimore.

‘Is there sufficient evidence to prove criminal behavior?’

Since taking office as the youngest prosecutor of any large U.S. city in 2015, Mosby has often repeated that refrain about there being one standard of justice.

She created the Public Trust and Police Integrity Unit, which is responsible for investigating and prosecuting corruption and misconduct cases. Assistant state’s attorneys in the section also litigate matters involving law enforcement officers who are accused of committing crimes while off-duty.

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Though there have been some high-profile acquittals and mistrials, Mosby’s office has successfully prosecuted several police officers for crimes, including shooting an unarmed burglary suspect, lying under oath and fabricating evidence. Her 2015-2021 Term Report touts “31 CONVICTED POLICE OFFICERS” in all capital letters.

The unit is independent and identifies potential criminal cases from several sources.

Assistant State’s Attorney Steven Trostle, who’s served as chief of the Public Trust and Police Integrity Unit since 2019, said he reviews weekly reports from the Baltimore Police Department’s Public Integrity Bureau about every new internal affairs case.

Trostle said he exercises due diligence, conducting a cursory review, and determines whether to open a formal inquiry. “I put eyeballs on literally every one of them,” he said.

He said he’s seen a marked change in the willingness of Baltimore Police to work with his unit in the last four years. Internal affairs, he said, preemptively notifies the division about cases that might rise to the level of a crime.

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Trostle said he also receives information from family members of those accused of crimes, defense attorneys and assistant state’s attorneys. That’s in addition to leads from social media as well as stories in the press.

If he decides to open a formal investigation, Trostle said, he assigns the case to himself or one of the other assistant state’s attorneys in the unit. They will later write a formal memorandum of law as well as draft a conclusion about whether the matter merits prosecution.

The front office, he said, has the final say on whether to approve charges or decline prosecution.

“Our job isn’t to decide guilt and innocence. Our job is to independently determine ‘Is there sufficient evidence to prove criminal behavior?’ And if so, ‘Is there a good reason for filing the charges and going to court?’ ” Trostle said. “If so, we’re going to file the charges.”

He said he could state with 100% confidence that every case the state has brought during his time in the office “absolutely had more than enough evidence that the trier of fact could find guilt beyond a reasonable doubt.”

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“And if they don’t, that’s their domain,” he said. “That’s not mine.”

In recent years, some prosecutors in the United States have increasingly been willing to take these cases and potentially lose at trial, said Seth Stoughton, a professor of law at the University of South Carolina who testified as a use-of-force expert for the prosecution in the state trial of former Minneapolis Police Officer Derek Chauvin, who was found guilty of murdering George Floyd, a 46-year-old Black man, in 2020.

“Traditionally, historically, they would charge the worst cases. ‘OK, ‘This one’s beyond the pale,’ ” Stoughton said. “If they weren’t sure they could get a conviction, they often wouldn’t take the case.”

Now, he said, some prosecutors are “bringing the threshold in charging police use-of-force cases down to be closer to the threshold that they use when they decide whether to charge other types of crimes.”

Stoughton said there are multiple layers that compound each other in making it difficult to successfully prosecute police officers in these cases. That includes the fact that law enforcement is allowed to use force while on duty.

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Prosecutors, he said, not only have to establish that events unfolded in the way they described — but that the actions of a police officer “crossed a particular line.”

“Highly ambiguous situations favor the defendant,” Stoughton said. “And in use-of-force situations, you’re often talking about highly ambiguous situations.”

What happened in these trials?

Though every case is different, there were some similarities in the four recent trials in which Mosby’s office failed to secure a conviction.

Police officers in three of the four chose bench trials, in which a judge — instead of a jury — decides whether a person is guilty or not guilty of the crimes alleged. Body cameras and surveillance cameras captured most if not all the conduct at issue. And key witnesses were either not available or testified in ways that appeared to be damaging to the state.

First, Baltimore Police Detective Leon Riley IV stood trial on allegations that he grabbed David Dixon without legal justification and assaulted him as he stood with a group of people on West Lexington Street near North Vincent Street in Franklin Square on Dec. 2, 2019.

Body cameras recorded portions of the arrest. A bystander filmed a 45-second video in which Riley has his arm around Dixon’s neck while Dixon exclaims, “You choking me, sir.”

But Dixon, 25, could not testify at trial. He was shot and killed on March 1 in the area of South Carey and West Baltimore streets in West Baltimore.

Riley’s partner that afternoon, Sgt. Brian Flynn, testified at one point that “an unlawful arrest and one you don’t like are not necessarily the same thing.”

Circuit Judge Philip S. Jackson later acquitted Riley of first- and second-degree assault, reckless endangerment and misconduct in office, finding that he had reasonable suspicion to stop and search Dixon.

That’s because Dixon was standing in front of properties where he did not live in an area known to be an open-air drug market. He was wearing a puffy coat with something in the pocket, Jackson said.

Police did not locate a gun but reported finding heroin and cocaine.

Riley, he said, was trying to force Dixon to follow commands and stopped using force after he complied.

Next, Baltimore Police Detective Andre Pringle stood trial on charges on accusations that he assaulted Brandon Walker, who had refused to put on a mask or leave the Shoppers Food & Pharmacy at Mondawmin Mall toward the start of the COVID-19 pandemic on April 19, 2020.

Pringle was off-duty but wearing a body camera. He was supplementing his income and working security at the supermarket.

By the time the case went to trial, Walker was incarcerated on unrelated charges of second-degree assault and wearing, carrying or transporting a handgun without a permit.

Walker was walking with one crutch because he’d broken his foot. He testified that he wanted to withdraw money from an ATM. Though he had a mask on top of his head, he said, it was painful to put it on because he’d recently suffered severe burns.

Pringle, he testified, later pushed him. He said he landed on his broken foot and turned around to face him.

“I’m not going to lie, I went to hit him in his face with the crutch,” Walker testified. “But before I could even raise the crutch above my hip, he wound up planting me on my head to the ground.”

“So you said you wanted to hit him in his hip with the crutch?” Assistant State’s Attorney Kimberly Rothwell asked.

“No, I wanted to hit him in his face,” Walker replied. “I was going to hit him in the face with the crutch.”

Circuit Judge Jennifer B. Schiffer said she watched the body camera video several times and noted that Walker slowly walked to the exit, turned around and cursed as Pringle calmly told him over and over again to leave the grocery store.

Schiffer said one might argue that Walker’s mere presence posed a danger because he was not wearing a mask.

“If we were talking about two guys on the street, neither of them in uniform, it might be different,” Schiffer said. “It might.

“In this case, sometimes — well, not just in this case — sometimes it is required for a police officer to put their hands on someone,” she added. “And in this case, I find it was incredibly impressive, the restraint that Detective Pringle used for the entirety of this interaction — the entirety of it.”

Stating that “no reasonable trier of fact could conclude under these facts that this officer did anything amounting to a crime,” Schiffer granted a motion for judgment of acquittal and threw out the charges of second-degree assault and misconduct in office.

Meanwhile, Baltimore Police Officer Troy Anthony stood trial for a second time on a charge of second-degree assault. He was accused of taking a swing at a man, Dustin Jackson Sr., while off-duty at the entrance of the Johns Hopkins Hospital on May 19, 2020.

Several months earlier, a jury found Anthony not guilty of making a false statement to a law enforcement officer and misconduct in office. The panel could not reach a unanimous verdict on the charge of second-degree assault.

Jackson did not show up at the retrial. A jury deadlocked again but indicated in a note that it had voted 11-1 in favor of acquittal. Anthony is set to stand trial for a third time on Tuesday, according to online court records.

Finally, former Maryland Transit Administration Police Officer Aaron Sewell faced trial on charges that he assaulted Kaiya Parker, a man who was not wearing a shirt on the platform of the Rogers Avenue Metro Station in Northwest Baltimore on June 20, 2020.

Parker had since been incarcerated on unrelated charges of first- and second-degree assault and openly carrying a deadly weapon with the intent of injuring any person.

On the witness stand, Parker repeatedly said he could not recall certain details from that night. At one point, he invoked his Fifth Amendment right against self-incrimination.

Sewell did not testify at trial. But he wrote in police reports that Walker stated that he was a member of the Black Guerrilla Family gang and threatened to shoot him.

During closing arguments, Circuit Judge Martin H. Schreiber II interjected as an assistant state’s attorney narrated surveillance video of the encounter and stated, “You are not being fair. You’re leaving out everything that happened up to this point. You say he hasn’t done anything. I mean, he said, ‘I’m BGF. I’m going to shoot you.’ He’s leaning in. Let’s not forget about all that.”

Later that afternoon, Schreiber acquitted Sewell of second-degree assault and misconduct in office.

At the same time, the state’s attorney’s office successfully prosecuted Baltimore Police Officer Christopher Nguyen on a charge of second-degree assault.

Nguyen failed to prevent Kenneth Somers from continuing to attack Wayne Brown, a man who was lying on the ground unresponsive in a pool of his own blood on Kolb Avenue near Belair Road in Northeast Baltimore on Aug. 12, 2020.

The Baltimore City Fraternal Order of Police Lodge 3 had publicly criticized the decision to bring an indictment in the case.

The president of the union, Baltimore Police Sgt. Mike Mancuso, wrote in a letter at the time that “one of our members was criminally charged by our social activist Baltimore City State’s Attorney.”

“She never ceases to amaze as she continually exhibits her disdain of law enforcement,” Mancuso said. “Mosby cannot decide whether it’s a crime in Baltimore for an officer to use force or for an officer to take a less confrontation approach.”

Mancuso did not issue a statement after the conviction.

‘They’re turned administrative issues into criminal prosecutions’

Defense attorneys who’ve represented police officers charged with crimes in the Baltimore said some of these matters in the past would’ve been handled solely at the administrative level.

“Whether you agree or not, Marilyn Mosby’s office has been very aggressive in charging officers with crimes,” said Andrew Alperstein, a defense attorney in Baltimore.

Joe Murtha, a defense attorney in Lutherville, said he thinks that the state’s attorney’s office has sometimes overreached and brought cases that the evidence does not support.

Murtha said he feels that’s had a chilling effect on law enforcement. He said it sends a message: “You don’t want to be proactive. You want to wait until something happens, and then respond.”

“It seems like there was an effort to seek out potential cases and being more aggressive in prosecuting police officers,” Murtha said. “They’ve turned administrative issues into criminal prosecutions,” he added.

Police officers have to make split-decisions that could mean life or death to themselves or members of the public, said Tom Donnelly, an appellate attorney in Baltimore.

Donnelly said he thinks that the cases he’s seen since 2015 have involved judgment calls instead of police officers who might’ve had “malicious or evil intent.”

“That’s not to say there are not officers who have certainly done things that warrant prosecution,” Donnelly said. “But looking as a whole at the amount of officers — and the type of conduct that has been prosecuted in the last seven years — it’s hard to reconcile some of those prosecutions with the independent judgment that we arm officers to make to do their day-to-day jobs and come home to their families.”

‘If we are not the entity to hold them accountable, who is?’

Ivan Bates, who’s set to become the next state’s attorney in Baltimore, said he will have a better sense and understanding of how to organize the office during the formal transition period.

During the primary campaign, Bates noted that he represented those who were victims of the Gun Trace Task Force, a corrupt plainclothes unit that robbed people, planted guns and submitted fraudulent overtime. He’s also emphasized the need to collaboratively work with law enforcement, stating that he plans to visit a police roll call on his first day in office.

Trostle, the chief of the Public Trust and Police Integrity Unit, said the state was well-represented in the recent trials.

Critics and detractors of the office, he said, are silent when it obtains a conviction against a police officer.

He said it’s critical for restore trust between the Baltimore Police Department and members of the community, which has eroded over the years. “And if we are not the entity to hold them accountable,” he said, “who is?”

“If there’s one true allegation out of 100, I’m going to review all 100 to find it,” Trostle said. “It’s that important.”

dylan.segelbaum@thebaltimorebanner.com

Dylan Segelbaum

dylan.segelbaum@thebaltimorebanner.com