Concealing Freddie Gray’s Autopsy Serves No One
June 5, 2015 (Mimesis Law) — There seems to be an inexplicable urge to think well of evidence concealed when it works in your favor, rather than against you. Enlightened self-interest is always a strong motivator. But what’s good for one side is good for the other, and one can’t take a principled stand if it shifts based on what suits your feelz.
So Marilyn Mosby, release Freddie Gray’s autopsy.
Baltimore State’s Attorney Marilyn Mosby plans to seek a protective order that would block the release of Freddie Gray‘s autopsy report and other “sensitive” documents as she prosecutes the six police officers involved in his arrest. Mosby told The Baltimore Sun that prosecutors “have a duty to ensure a fair and impartial process for all parties involved” and “will not be baited into litigating this case through the media.”
Mosby is absolutely right that prosecutors should not use the media to game the system, to prejudice the potential jury pool by selectively infusing the public discussion with allegations that are unduly prejudicial, especially when they’re blatantly false or self-serving. You know, like how the victim who did nothing wrong has a rap sheet? But an autopsy report is a different animal.
The move is the latest effort by Mosby’s office to restrict information in the high-profile case. Her office has also sought a gag order to prevent participants from discussing the case in public, and has broken with a long-standing practice by not giving a copy of the autopsy report to Baltimore police.
First, an autopsy report isn’t argument. There is nothing about it that suggests Mosby is “trying the case in the media.” It’s documentary medical evidence, facts if you will, addressing the most critical open question surrounding Freddie Gray’s death: why did he die? It’s not going to provide anyone, prosecution, defense or public, with the answers that we want, like what the hell happened to Freddie Gray that he ended up dead in police custody, but it will provide a hard piece of the puzzle.
It’s anticipated that the autopsy will show he died of his spinal injuries, but it may also show other injuries he sustained, and may well show the nature of the cause of those injuries, if not the specific details. These are facts. These are facts derived from public processes, the medical examiner’s post-mortem examination.
This is a document created by a public official. It belongs to the public. It is not the prosecution’s place to conceal it. The argument offered by Mosby for her effort to obtain a restraining order to allow her to conceal the autopsy report seems one that criminal defense lawyers should embrace. After all, a fair trial for defendants is a paramount concern for the defense, and anything impairing due process should be the sort of thing we reject.
Of course, much as it’s happening here, it isn’t a problem when the defendants happen not to be cops. Revealing the autopsy, not to mention every other piece of dirt they can get their hands on or invent, is de rigueur for the prosecution.
Much as it’s gratifying to see anyone express a bit of concern for the rights of the defendants, it would be far more so had the defendants not worn shields. But that said, the better argument isn’t to deny due process when the defendants are cops, but to demand the same concern for fairness for everyone. And indeed, revealing the autopsy in this case does not clash with that position.
The biggest obstacle to disclosure, aside from Mosby’s position, is that the defense is already engaged in a media guerrilla war regardless of what position the prosecution takes:
[Attorney for Sgt. Alicia White, Ivan] Bates said the protective order would allow only prosecutors and defense attorneys to see the documents, and could require the court to seal all new filings that make reference to information in the documents. In that way, he said, it would be more restrictive than a gag order. “Nobody would know anything but the state and the defense, so they would totally hide it from the public,” Bates said. “If your case is as good as you said it was, why don’t you just show the evidence? … You can’t holler and say, ‘I’m about accountability for the citizens,’ and then run around filing for a protective order.”
Release the autopsy and watch the defense scream about smearing the defendants with facts, or don’t release the autopsy and watch the defense scream about concealment and accountability. Either way, it puts the prosecution in the awkward position of feeling as if it needs to not only prosecute the case, but defend every action it takes in the process.
Don’t blame Ivan Bates for doing anything and everything he can on behalf of his client. That’s his job. His role is not to be fair to Mosby and the prosecution. His role is to defend Sgt. White, and if that means attacking every decision, every statement, Mosby makes along the way, so be it.
It’s not easy being the big Kahuna prosecutor, and Mosby needs to get used to the notion that she will be challenged at every turn. That’s part of her job. But just as she should not be goaded into a media war by the defense doing its job, she should not feel constrained to conceal the facts of the case, the same facts that are invariably revealed in every other case, because of some fear that it might make the prosecution look bad. That’s how the system works, and concealment won’t change the facts for better or worse.