On Megyn Kelly's Fox News show on Wednesday, Andrew Napolitano sharply criticized the city of Baltimore's agreement to pay $6.4 million to the family of Freddie Gray, the 25-year-old black man who died in police custody there in April.
The Associated Press and most of the rest of the establishment press are describing the city's payout, which was approved on Thursday, as a "settlement" — an odd and inappropriate term, given that Gray's family had not yet filed a lawsuit, i.e., there was not yet a court case to "settle."
Both the AP and the New York Times, the latter in quoting Baltimore Mayor Stephanie Rawlings-Blake, have acknowledged that how the city moved to hastily get the potential civil matter out of the way ahead of the criminal trial of six police officers accused of contributing to Gray's death was "unusual."
It's far more than that. Kelly, a lawyer by training, stated that it's "unprecedented," and Napolitano appeared to agree:
Transcript (bolds are mine):
MEGYN KELLY: Now with more, judge Andrew Napolitano, our FOXNews senior judicial analyst. So they did it. They approved - the Board of Estimates in Baltimore unanimously, 5 to 0, voted in favor to settle this case. $6.4 million, which is unprecedented on the eve of a critical motion hearing in the case.
ANDREW NAPOLITANO: In every state in the union, where there is a civil litigation or the potential for a civil litigation in a companion criminal case, the rule of thumb is the criminal case goes first. You do not want to do something in the civil case that would prejudice the fairness of the criminal case, either to help the government or to help the defendants.
The government here has made it nearly impossible to prosecute these cops by creating an atmosphere in which they have basically said, by giving away this money — many, many, many, many, many times what this case is worth — "we are admitting liability." She can deny they admitted that all she wants, but the message is clear. They are not going to be able to find 12 people that don't know about this or that can put it aside.
KELLY: Well that's the thing. In the law, we have damages. We do calculations to figure out how much any given life is worth, you know. And if you've got someone whose earning capacity (is high) who dies, they get a higher payout, their family do(es), then a drug dealer who had no job.
NAPOLITANO: Mr. Gray's financial worth was zero. His earning capacity was zero.
KELLY: So what's baked into that 6.4 million?
NAPOLITANO: An effort to, to, uh, give money away so as to pay for peace in the community.
KELLY: The Mayor said, keep the peace. Is that her job?
NAPOLITANO: No it's not. Nor is it permissible under Maryland law. Now Maryland, unlike a lot of other states, does permit the payment of money in wrongful death cases for emotional loss. A lot of states don't permit that. Their theory is it's impossible to put a dollar figure on emotional loss. That's capped at $950,000 in this particular case. The remaining $5 million must be based on his lost earning capacity. He has zero talent —
KELLY: That's quite a separate discussion. The mayor does need to keep the peace in the city of Baltimore. But to do it by shelling out millions of dollars of the taxpayers' money on the eve of the criminal trial, and a big motion hearing in the case, has the rank and file, and I quote the FOP (Fraternal Order of Police) president, union president: "outraged, furious and upset." And it's just another example of that Mayor not supporting the rank and file.
NAPOLITANO: Well it's an example of a mayor misusing her office. It's an example of the Mayor setting an atmosphere in which a fair trial is virtually impossible, and I suggest to their lawyers, and they don't need my advice, to dismiss the indictment on the grounds that the government itself, the same government that charged them, has now made a fair trial impossible.
KELLY: How does it affect the motion to change venue, which gets heard tomorrow? Tomorrow, the judge is supposed to decide whether this case gets tried in the city of Baltimore or not.
NAPOLITANO: The least the court can do is change venue to part of the state that is not rubbed raw by this. But the Court should —
KELLY: Mm-hmm. The tax payers are ticked off that they're now paying $6.4 million the mayor says (is) because of the actions of these cops.
NAPOLITANO: Well I don't know where the money's coming from, whether it's coming from Government or whether it's coming from an insurance policy. But my concern is — and I don't know if these cops are innocent or guilty; they're presumed innocent at this point in the proceedings — I don't know how they can get a fair trial when their bosses have admitted liability, no matter what they say, by the improperly timed and grossly over-expensive distribution of this kind of cash.
KELLY: The City has (I believe Kelly meant to say "the defendants have" — Ed.) more than a leg to stand on here. They have a witness who reportedly said this guy was trying to injure himself in that van, and they (i.e., the City — Ed.) do not appear to want to try this case. More on this case tomorrow.
It seems more than reasonable to believe that the Mayor and Prosecutor Marilyn Mosby made their move to deliberately prejudice the case in their favor, and that they deliberately concocted an artificially high payout before any court action commenced. That's because once the matter entered the civil court's jurisdiction, as Napolitano noted, an award of $6.4 million could not have taken place under Maryland law.
Today, the motion to change venue was denied. In a passage that probably won't survive revisions, the Associated Press's early story quoted an attorney who identified what I believe is a key part of the prosecution's strategy:
Andrew Levy, a Baltimore defense attorney and an adjunct professor at the University of Maryland School of Law, said a change of venue was unlikely at this early stage in the proceedings, but he said the defense might raise the issue again when they're questioning potential jurors. The judge said he would entertain those arguments at that time.
Picking a jury will be a challenge, Levy said, because while jurors may believe they can be impartial about a highly publicized case, they may also fear for their safety in the event of an acquittal.
"It's not just the concern that they've already formed an opinion in the case," Levy said. "In a way, they have a vested interest in the outcome."
Let's be clear about what Levy is saying in this context. The Mayor has already agreed to shell out $6.4 million to "keep peace" in the city. She and Mosby hope that jurors, to advance that agenda and in their own self-interest, will find the officers guilty for that very same reason, regardless of the facts and circumstances.
Finally, and again despite their protests to the contrary, it's more than reasonable to believe that the Mayor and the Prosecutor want the history books to assert that the officers were guilty, regardless of how the trial turns out.
Cross-posted at BizzyBlog.com.