Getting Away with Murder Is Too Easy in America
Cops and DAs need far more support to help clear murder cases—and secure convictions in court.
I’m not exactly sure how this happened, but I recently ended up on a second jury for a murder case in Baltimore City, where I’ve lived for more than 20 years. Mind you, in both cases, I was selected as an alternate, which must be the worst civic job ever. You sit in court for a week listening to the evidence and the arguments, and barring some meltdown on the real jury, you are dismissed without having any deliberations with others or getting to see the conclusion of the case.
In my first murder trial, I was convinced that justice would not be served. It involved three friends late at night in East Baltimore getting into some argument after partying that resulted in one friend shooting down another friend in the street and the third one witnessing it and then fleeing. The forensic evidence was solid, but the entire case hinged on the direct testimony of the third friend, who had a rap sheet a mile long and had to be dragged into court by Baltimore sheriffs to testify. He clearly did not want to do so but basically said he saw it all and that it wasn’t right what the one guy did to his friend.
After I was dismissed from the jury, I was very interested in the outcome of the case and thought for sure one eyewitness with a background like this would not be enough to secure a conviction. Baltimore juries are notoriously distrustful of the cops and the criminal justice system at large and doubt many of the people presented as witnesses. A few weeks later, however, I read in a Maryland court publication that the shooter had been convicted of second-degree murder and other charges. Well, I’ll be damned, justice was served!
This recent murder case renewed my skepticism that hard-working cops and state’s attorneys (DAs in Maryland) can get the bad guys and killers off the street. This is mostly not their fault. Baltimore’s current State’s Attorney, Ivan Bates, and his officials, along with the Baltimore Police Department (BPD) and federal law enforcement partners, have made impressive strides after the disastrous tenure of Marilyn Mosby in clearing murders and other crimes (meaning to identify and arrest a suspect), procuring guilty pleas or convictions in court, and getting repeat violent offenders off the streets.
And boy, what a difficult job it is. Despite real reductions in homicides and non-fatal shootings over the past two years, Baltimore still has a lot of murders. And too many murderers get away with it or are never identified in the first place. Why? Robbers and murderers cover their faces and wear concealing clothes. They use burner phones and fake email accounts to communicate and disguise their movements. Shootings often happen in the night or in places with few witnesses or in areas with a robust drug trade and gang presence that scares off the locals. If there are witnesses to a shooting or murder, few residents want to talk about it, and even when they do, their recall is not always consistent or reliable making prosecutions difficult. Police detectives and crime technicians also face monumental challenges in collecting usable evidence given the state of crime scenes, untraceable weapons, locked phones and computers, difficulties finding and interrogating suspects, the lack of community cooperation, and overall workloads.
Equally important, even when the cops and state’s attorneys gather compelling forensic evidence—weapons, bullet casings, fingerprints, DNA, articles of clothing, CCTV footage, phone logs, and text chains—the legal standards in criminal court are so tough that a lot of this evidence gets dismissed by juries after defense attorneys “what about” the entire effort and judges fail to describe “reasonable doubt” in any fair manner.
With good reason in our constitutional system, the burden of proof is always on the prosecution to make a rock-solid case, and the defendant always enjoys the presumption of innocence throughout a trial. This is the origin of the famous William Blackstone maxim, “Better that ten guilty persons escape than that one innocent person suffer.”
However, the reality of human nature among jurors and the limitations put on them by the judge to only consider evidence presented in court, along with the confusion of the trial itself, produce some perverse consequences. This is especially true when evidence is constantly challenged by lawyers or struck down and inexplicably reversed by the judge during the proceedings without explanation. Jurors in their mind: “Are we supposed to consider that seeming admission of guilt in the interrogation room that was just presented?” Judge: “That evidence is inadmissible.” Jurors in their mind: “Why?” Crickets.
Similarly, judges are required by law to tell juries that circumstantial evidence (i.e., forensic information that is the basis for factual inferences) is to be treated the same as direct evidence (i.e., a witness saw something, or an act is captured on video). But this rarely happens among jurors. Circumstantial evidence gets ripped by defense attorneys as “speculation” rather than hard proof without the defense having to provide any reasonable alternative explanations for the evidence at hand. Defense attorney: “I don’t know why my client’s DNA, hair, and fingerprints were found all over the victim’s car. It could have been from some other time. The state can’t prove it was from the time of death.” Since jurors don’t get to ask attorneys about their inconsistent arguments or to explain the logic of their appeals, confusion about evidence and testimony often develops among jurors as the trial progresses, leading to an unwillingness to judge someone as guilty.
This hesitation is compounded in jurors’ minds since Maryland judges are also legally obligated to instruct juries that the prosecution doesn’t have to prove guilt beyond all possible doubt or to a “mathematical certainty.” Yet, in doing so, the judge often leaves jurors more confused about the meaning of the law and left with the impression that any doubt is reasonable and that if they don’t have 100 percent certainty, then they must rule not guilty, as the defense attorney will stress non-stop in closing arguments.
But if mathematical certainty of guilt is not required by the law, then what is the threshold for certainty? 99 percent? 95 percent? The judge can’t or won’t say. It’s up to each juror to determine using their own evaluation of the facts and evidence presented at the trial.
All these factors arose in my second murder case, a complicated six-day trial about a drug-deal robbery and killing committed five years ago at the start of the pandemic. Briefly, without using names or exact details, a young woman was in contact with a drug dealer about setting up the sale of Percocets in a neighborhood in East Baltimore. She drove with a friend to the meeting spot for the drug deal when a guy whose identity was concealed by a hoodie emerged from an alley and got in the backseat of the car with a gun to take the money and drugs the woman had in her purse. The perpetrator scuffled with the friend in the passenger seat, who jumped out of the car after being hit with the gun. The woman was found shot through the neck a few blocks away after crashing and exiting her car and later died from her wounds.
No one got a clear look at the killer. However, Baltimore City detectives, crime technicians, and prosecutors did outstanding work to piece together the facts of the robbery and murder of the young woman from a fingerprint of the defendant inside the car, a DNA match to him from hairs on a skullcap left in the car after the scuffle, interrogations of the suspect where he later called and texted his girlfriend to get her story straight about the event, multiple phone calls before and after the murder with the first man who arranged the drug-deal robbery, and internet searches and maps of the location that all placed the defendant at the scene of the crime.
All of this was presented in court in an orderly but somewhat confusing manner over several days as the prosecution sought to establish the exact facts and expertise of the people involved. The defense attorney, who was quite good at his job, didn’t refute the facts of the case but instead threw out a wall of doubts and charges of shoddy detective work summarized as follows:
That fingerprint and hair DNA of my client inside the car could have been from some other time. Those 34 calls before and after the murder between my client and the guy who set up the robbery could have been about anything. No one could clearly identify my client. Why didn’t the detectives look harder for other suspects? That text chain from my client with his girl to tell her his cover story during the time of the murder, typed out from the station homicide interview room, was just nervousness because of cops. The Google search history of “woman shot in East Baltimore” found on my client’s phone the day after the murder was just something he heard that piqued his interest. The map my client made in Google and texted to the other guy, marking with an ‘X’ exactly where the stash was put in a park after the robbery according to the prosecution, is just speculation and could have been about anything.
In my mind, this was just a clever smokescreen from the defense and the hard evidence clearly implicated the defendant beyond a reasonable doubt. Can I say so with 100 percent certainty? No, more like 98 percent certainty (since a clear identification would have sealed it completely). But this is enough to convict according to the law and the judge’s instructions. The defense’s objections to the circumstantial evidence amassed by the Baltimore police and other law enforcement officials as mere “must have” speculation rather than a damning indictment of a killer made no logical sense in my mind.
The facts showed the defendant and his pal set up the woman for a drug robbery. The defendant attacked her friend in the car and then shot her in the neck after he jumped out. She later died. The defendant scattered away with the drug and money loot, leaving behind biological traces of his presence that he later tried to cover up, while relying on a good lawyer to wave away loads of evidence and make fantastical claims (not reasonable ones) about some other mystery killer that he didn’t need to corroborate.
Ultimately, I wasn’t on the jury, and the people who did evaluate the case found the defendant not guilty on all counts. Was this an injustice or justice served? I don’t know for sure. Maybe I’m wrong and the other jurors are correct. Maybe a different jury would have found him guilty. I can’t say for certain.
I do know that the result is brutal for the victim’s family and for the city at large. Either a guilty guy got away with murder since the state couldn’t meet the high threshold to convince 12 jurors of his culpability, or the guy was innocent, and the BPD and state’s attorneys failed to find the actual killer who is still roaming the streets of Baltimore.
Beyond a clear witness identification or video of the killer, the only thing I can think that might have helped the BPD and prosecutors to put this guy away would have been the presence of far greater resources in terms of police manpower, technology, and legal support to track down and disprove ahead of time every conceivable objection a defense attorney might make in court about DNA or fingerprints or phone records or “some other guy” did it. Proof beyond a reasonable doubt (and beyond nearly any doubt given jury realities).
If Americans want more done to stop violent crime and hold criminals accountable under the law, we owe it to the police and the prosecutors to give them the resources necessary to find and put the bad guys away. It’s not enough to talk tough about fighting crime. We need to invest in being smart on crime to help law enforcement secure our cities and get legal accountability within the bounds of important constitutional rights for the accused.