BALTIMORE — On the afternoon of April 27, Melanie Diggs faced a difficult decision. She’d successfully managed the West Baltimore branch of the Enoch Pratt Free Library for more than two decades, but nothing prepared her for what she saw through the library’s floor-to-ceiling windows.
Right in front of her, on the other side of the intersection of West North and Pennsylvania avenues, a chain pharmacy was burning. Hundreds of people ran through the smoke, throwing bottles at police officers in riot gear. Torched cars smoldered nearby, the explosions of their gas tanks echoing through the rows of vacant houses.
The scene presented an urgent question. Should Diggs close the library and ask the dozens people who’d taken refuge inside to go home? Or should she let them stay, lock the front doors, and hope for the best?
In an act that would later earn her widespread recognition, Diggs decided to let everyone stay. The next day, the library was intact. Today, it proudly displays thank-you letters addressed to Diggs by a half dozen children whom she helped keep safe during Baltimore’s worst unrest since the assassination of Martin Luther King Jr.
Now, nearly five months later, Diggs is bracing herself for the possibility that she might have to make a similar decision.
“We don’t know what will happen... hopefully people will react positively.”
On Wednesday, the Baltimore Circuit Court will host the first hearing in the homicide of Freddie Gray, a 25-year-old black resident of West Baltimore who died on April 20 of a spine injury incurred aboard a police van. Like many other alleged police killings of unarmed black people across the country, Gray’s death sparked widespread protests. The ensuing disorder provided cover for rioters to loot several stores in West Baltimore, including the pharmacy across the street from Diggs’ library.
The unrest subsided on May 1, when State’s Attorney Marilyn Mosby announced her intentions to charge the six police officers involved in Gray’s fatal arrest with crimes ranging from misconduct in office to second-degree murder. (All have pleaded not guilty.)
Since then, both defense lawyers for the officers and Mosby’s team of prosecutors have filed hundreds of pages of legal documents. Some of the increasingly bitter motions have asked Baltimore’s Circuit Court to force Mosby to withdraw from the case, move the trial to another jurisdiction, and impose sanctions on both sides for alleged disregard of the ethics rules that are supposed to guide the conduct of Maryland lawyers.
Before the case can proceed to trial, the parties have to debate those disagreements before Barry Williams, the judge who has been assigned to the case. The hearing scheduled for Wednesday is supposed to provide a forum for some of those arguments.
In any other circumstance, a motions hearing would not garner much attention. But in the tense atmosphere of today’s Baltimore, the possibility that Williams could make an unpopular decision has raised concerns that scenes like the ones seen in April could repeat themselves.
The city government is taking steps to be ready for any eventuality. As BuzzFeed News first reported, the police department canceled time off for all its officers on Wednesday, though its spokesperson downplayed the risk of violence and said the decision came “out of an abundance of caution.”
Activists, too, are planning for the event. The Baltimore People’s Power Assembly, a collective that advocates against police brutality, has planned to protest outside the courthouse during the hearing, according to the organization’s Facebook page.
As for the rest of the city, uncertainty seems to be the order of the day.
“We don’t know what will happen,” a cheerful but visibly worried Diggs told BuzzFeed News in an interview at the library on Monday. “Hopefully people will react positively.”
While the rest of the city wonders whether the hearing will trigger more violence, Baltimore’s legal community is hotly debating the questions at stake in Wednesday’s hearing and in another hearing scheduled for next Thursday.
During the first hearing, the court will decide whether to ask Mosby to step aside from the case and whether the officers should be tried together or separately. In the second hearing, Judge Williams is expected to rule on whether the trial should be moved to another jurisdiction.
At the heart of the disagreement, both in this case and in many cases around the nation, is the question of who should investigate and try police officers accused of killing civilians.
Setting aside some of their more strident claims, the defense is arguing that Mosby and her team overstepped their role as prosecutors when they rushed to file charges, becoming witnesses in the case and destroying the officers’ chance for a fair trial. For their part, the prosecutors claim the defense is orchestrating a smear campaign to shift attention from the charge that the officers killed Gray.
The State’s Attorney’s Office did not respond to a request for comment. Lawyers for the officers also did not return requests for an interview.
In a typical Baltimore homicide, according to a former prosecutor and a veteran defense attorney, neither of whom are involved in the case, the police conduct a lengthy investigation of the facts at stake and present it to the State’s Attorney’s Office, which then decides whether or not to file charges. Prosecutors may reinterview witnesses, but the bulk of the inquiry into the facts of the case is conducted by detectives.
The reason for this practice, the lawyers said, is that defense attorneys often want to question investigators in open court, to try to find inconsistencies in their statements or poke holes in their accounts of the facts of the case. This would not present a problem, the defense lawyers argued, if the investigators are police officers who take the stand as a matter of routine, but could become an issue when the investigator is also a prosecutor deciding whether to file charges.
Defense lawyers said they believe members of Mosby’s team met with the city’s medical examiner before she filed the report ruling Gray’s death a homicide. They have also claimed that prosecutors wrote the statements of probable cause against the officers — even though they were ultimately signed by a major in the Baltimore Sheriff’s Office.
The defendants’ lawyers argued that these actions should disqualify Mosby as a prosecutor, because attorneys are not typically allowed to work as counsel in cases in which they could be key witnesses. They have asked the court to force her to step aside.
“Ms. Mosby conducted the kind of investigation that should be conducted more often, not less.”
The criminal defense attorney and the former prosecutor agreed that there may be some merit to the defense’s claims.
“If I were the defense attorney, I would want to get the major from the sheriff’s office on the stand and ask him, ‘Where did you get this information from?’” the veteran criminal defense lawyer told BuzzFeed News. “I would look for inconsistencies between what the medical examiner says and what the prosecutors say. I would look for missing information.”
The former prosecutor added Mosby likely conducted her own investigation because she didn’t trust the police department with investigating its own ranks. Still, the former prosecutor said, she opened the door to be called on the stand.
“One of the reasons why we have an elected state’s attorney is so that we can have an independent body from the executive, which includes the police,” the former prosecutor told BuzzFeed News. “But the problem is that, if the state’s attorney runs an investigation into police misconduct with its own prosecutors acting as investigators, they become vulnerable to ending up as witnesses.”
For her part, Mosby has said much of the investigation was conducted by the Baltimore Sheriff’s Office — and that, in any case, prosecutors of all stripes routinely meet with medical examiners and other experts as part of their investigations. She has asked the judge to dismiss the defense motion, which her motions have called “frivolous” and “improper.”
Douglas Colbert, a professor at the University of Maryland’s Francis King Carey School of Law, told BuzzFeed News he believes it’s highly unlikely that Judge Williams would remove Mosby.
“It would be an extraordinary decision to remove an elected official who is charged with prosecuting crime in Baltimore City,” Colbert said. “The facts that the defense presented does not lead me to believe that the judge will do anything other than dismiss the motion.”
Colbert added that the defense’s claims that Mosby overreached in her investigation are rooted in law enforcement practices that — while entrenched in Maryland — are not the rule in the rest of the country.
“In my view Ms. Mosby conducted the kind of investigation that should be conducted more often, not less,” the professor said.
The defense has also argued that the huge amount of publicity the case has received has made it impossible for the officers to receive a fair trial in Baltimore. They claim that Mosby’s highly publicized press conference — in which she sided with the peaceful protesters who demanded justice for Gray — prejudiced a large portion of the city’s potential jurors.
For her part, Mosby has argued that a prosecutor’s announcement of her intention to file charges cannot in any way be understood as an attempt to prejudice potential jurors and that, on the contrary, it is the defense's inflammatory filings that could damage the jury pool.
Although the motion to change the venue will not be heard until next Thursday, the legal community in Baltimore has already begun to vigorously debate it. Colbert, for one, said he does not think there are grounds to move the trial to another jurisdiction.
“It’s almost insulting for the defense to suggest without empirical data that an impartial jury could not be selected in Baltimore,” he said, pointing out that the defense has not conducted any kind of survey to show whether or not a majority of people in Baltimore have made up their minds about the culpability of the officers. “It’s exceedingly rare to ever try a case outside the jurisdiction where a crime allegedly occurs.”
But the criminal defense attorney and the former prosecutor disagreed.
“Everyone I’ve spoken to thinks it’s getting moved,” the attorney said. “The defense has a very good case. And if they do move it, it could go south for the prosecution. There are some counties in Maryland that could be friendly to the state, like Prince George’s.”
“The question is whether these defendants can get a fair trial,” the former prosecutor said. “And there’s no way they can get it in Baltimore city.”
Beyond what happens on Wednesday and next week, the view in some parts of Baltimore’s legal community seems to be that the case will not result in convictions, in part because the State’s Attorney’s Office rushed to file charges.
“If you take your time, you do a better job,” the former prosecutor said. “Mosby was more interested in doing what was popular than in doing things right.”
Some legal practitioners worry that “the prosecution is going to fall apart,” the defense attorney with 20 years of experience told BuzzFeed News. “Some officers are going to get acquitted,” the defense attorney said, “and the people of Baltimore are going to feel that they were promised something they didn’t get.”
In West Baltimore, the mood was of relative calm. On Monday, near the intersection of Penn and West North, people went about their business as usual. Everyone BuzzFeed News spoke to, however, was aware of the upcoming hearing and had an opinion about it.
A man who was selling hot dogs at the intersection — and who asked to be identified only by his trade — said he’d been following news of the case closely. He had detailed opinions on several motions at stake in Wednesday’s hearing, believing Mosby should be allowed to prosecute the case and that she should drop charges against Caesar Goodson, the police officer who drove the van in which Gray died. Goodson, who is black, is the only officer charged with murder.
“I feel some of them should be held accountable, but not all six,” the vendor said. “The first two officers that came into contact with him, they are responsible. If you see the video, his legs are limp before they load him into the van.”
Natasha Carter, who said she grew up with Gray in West Baltimore, said she did not think Mosby faced a conflict of interest and that she hoped the court would not move the venue.
“They shouldn’t be treated differently from anyone else,” Carter said. “If someone from around here is facing serious charges like murder, they don’t get to move the trial to a place where they have better chances. A charge is a charge, no matter who you are.”
Carter also said that she felt the BPD’s preparations for potential unrest were unnecessary, though she acknowledged it was possible “some people might get angry.”
“But last time, the riot happened because the kids was provoked,” she said, referencing the first clash between protesters and police on April 27, which involved high school students. “I guess getting ready is the proper procedure for them.”
Others were less hopeful. A man who identified himself only as Elliot, and who said he’d moved to Baltimore from Detroit in 1996, said whatever happened in the motions hearing didn’t matter, because the officers would not be convicted in the end.
“I have no faith in anything that has to do with politics, or justice for black people,” he told BuzzFeed News. “It’s all a scam, a sham, an illusion.”
As for Diggs and the rest of the staff at the Enoch Pratt Free Library, they have already decided how to react in the event of another bout of unrest. They plan to continue to provide the many services offered by the institution — from a small supermarket designed to alleviate the neighborhood’s lack of access to healthy food to free appointments with lawyers from the Legal Aid Society.
“The plan is to stay open,” Diggs said with a smile. “As we did before.”