Above Photo: Santa Theresa/Getty Images
ONE YEAR AGO this week, Keith Davis Jr. almost became another rallying cry against police brutality when four Baltimore police officers chased him into a garage and fired off 44 rounds at him, striking him three times, including in the face. Had he died, Davis would have become the first person killed by Baltimore police since Freddie Gray, who died in April 2015 of a severed spine after officers loaded him handcuffed, shackled and unrestrained into a police van.
Instead, Davis survived, a bullet still visibly lodged in his neck serving as a reminder of how narrowly. Davis’ shooting didn’t spark the massive protests that Gray’s death ignited, but his story illustrates what might have happened to Gray had he survived. “He is the second part of Freddie Gray,” Davis’s fiancée, Kelly Holsey, told The Intercept. “Freddie Gray passed away. Had he lived, he would have been arrested, had charges thrown on him, would have had to fight the court system, would have had to fight the State’s Attorney’s Office. And that’s what Keith is going through now.”
Between 2006 and Gray’s death in 2015, 67 people were killed in encounters with Baltimore police, according to the Baltimore Sun. Only two of the police officers involved in those killings were charged with a crime. Following Gray’s death, the Department of Justice opened an investigation into the Baltimore Police Department, focusing on its use of force, including deadly force, and its pattern of discriminatory policing. The police commissioner was fired, the city’s officials engaged in a public exercise of soul searching, and police reform became the talk of the town.
In May 2015, standing on the steps of Baltimore’s War Memorial as protests raged in the streets, the city’s state’s attorney, Marilyn Mosby, charged six police officers with Gray’s death. “I have heard your calls for ‘no justice, no peace,’” she said from the podium, addressing Baltimore’s youth, but also, it seemed, the nationwide movement for police accountability that had been rocking the country over the previous year. Months earlier, as she was sworn in as the youngest prosecutor of a major U.S. city, Mosby had spoken of the “diminishing trust” between the city’s citizens and law enforcement. “The time to repair that trust, to come together … is now,” she said.
Today, more than a year since Gray’s death, Davis’ story is sobering evidence of the failure to repair that trust.
Unlike Gray, Davis survived his encounter with officers, but the handling of his case raises serious questions about the credibility of police and prosecutors. Many in Baltimore wonder if the public’s confidence in the city’s law enforcement institutions is beyond repair. “The mistrust is something we have to deal with on a daily basis,” Todd Oppenheim, a Baltimore public defender who has been critical of the city’s justice system, told The Intercept. Prosecutors chasing convictions at all costs, often with weak cases, have only contributed to the animosity against the city’s justice apparatus, he said, and the greater scrutiny Gray’s death supposedly brought to officer-involved cases in Baltimore has made little difference.
44 Shots Fired
On the day Davis was shot, an unlicensed cab driver named Charles Holden nearly slammed his car into a group of police officers who were responding to an accident. A man in the passenger seat leaped out and ran off, as Holden frantically told officers the man had pulled a silver-colored gun and tried to rob him.
What happened next varies wildly depending on whom you ask. Police claim that Davis was the man who fled the car. Davis says he just happened to be at that street intersection and they went after the wrong guy. Police chased him into a dimly lit garage, where they say they told him to drop his gun. Davis claims police just started shooting at him. In the garage, police later found a gun — green and multicolor, not silver — sitting on top of a refrigerator behind which Davis had taken cover. Davis, who called his fiancée as the officers started chasing him, said he was just holding a phone.
“Baby I’ma die,” Holsey remembered him saying — and then, to the officers, “Why y’all tryin’ to kill me?”
Had he died, Davis’s case likely would have been quickly closed as another justified police shooting. There might have been a few rallies in his name, maybe a hashtag on social media. Instead, Davis was charged with 16 criminal counts, including attempted robbery, assault, gun possession, and discharge of a firearm. He always maintained he was innocent and refused to take plea deals that were offered to him.
Then things got murkier. The discharge of a firearm charge was dropped. Upon investigation, it turned out the gun had been unloaded at the time of the incident and that all shots had been fired by police. In December, months after the shooting and weeks before trial, prosecutors tacked on a new charge: firearm possession with a felony conviction. Because of his prior criminal history, Davis was not permitted to own a gun or be in close proximity to one. After a trial riddled with inconsistent and contradictory testimony, a jury acquitted Davis of all charges except the one that had been added last minute: Somewhat incongruously, Davis was acquitted of carrying or wearing a gun, but convicted of possessing a gun as a prohibited person, and sentenced to the required five-year minimum.
But Davis’s ordeal was not over. Days after his trial ended — in a conviction for him, but also a rejection of the prosecution’s broader case — he was charged with first-degree murder, because the gun found on the scene had been linked to a homicide that had occurred earlier that day.
Davis is appealing the first conviction and preparing to fight the murder charge — that trial is scheduled to start July 27, his 25th birthday. He and his supporters, who held a rally Tuesday on the anniversary of his shooting, have maintained from day one that the charges brought against him were an attempt to cover up a wrongful police shooting.
“What actually happened is they went after the wrong guy. And they are not willing to admit it,” Holsey told me in April, standing outside Baltimore’s jail. “They are coming at him with everything they have because they have made a mistake, and instead of apologizing, they just continue to systematically ruin his life.”
“He still believes he didn’t do anything, and the evidence will show it,” she added, as her children and a small group of supporters climbed walls, banged on drums, and wrote “Free Keith Davis Jr.” in spray paint over a giant banner. “I’m a nervous wreck because I understand that they will do anything, lying, conniving, being deceitful.”
Across the street, two rows down from the top of the building, Davis started banging on the windows in response to their drums, soon joined by other inmates.
A Questionable Prosecution
For a police department under investigation over officers’ use of force, the way in which the Baltimore Police Department handled its first police shooting since Freddie Gray’s death raises questions, at the very least, about whether it has learned any lessons.
At trial, the testifying officers’ timeframes didn’t match. Two different officers said they were the first to arrive at the garage, and two different officers said they put the cuffs on Davis. Memory of details often becomes confused as time passes, which is why witnesses are asked to give recorded statements as soon as possible after similar incidents. In Maryland, the Law Enforcement Officers’ Bill of Rights gives officers involved in shootings 10 days to seek legal representation before having to give any statements — a window that some elected officials want to reduce to five days. But in Davis’s case, the four officers who fired at him made no statements at all until January 2016 — weeks before his trial started and nearly seven months since they shot him.
At trial, Davis’s lawyer Latoya Francis-Williams asked one officer after the other about the missing statements. “Did you give a statement in June 2015?” she asked Officer Lane Eskins, the first to testify. “July 2015? How about August 2015? September 2015? October? November? December 2015?” She met a string of “No, ma’ams.”
“What, if anything, do your general orders require when you use deadly force?” she pressed him on. “Our general orders state that you should be giving a statement within 10 days of you using deadly force,” Eskins replied. “And you didn’t give a statement within 10 days, did you?” “I did not, ma’am.” “Did anyone come to you for a statement within 10 days?” “No, they didn’t.” “Did anyone ask you why you fired your service weapon anytime before January 2016?” “Only the union attorney.”
In fact, the officers who fired shots were not asked to give statements at all until January — when Francis-Williams demanded that statements be released to her to prepare for trial. But two months earlier, in November 2016, the officers received “declination letters” from Mosby’s office, indicating that she would not seek charges against them. “It said the state’s attorney is not going to charge me for committing a crime,” Eskins testified, referring to the letter. “And they did this without talking to you about what happened, that’s correct?” Francis-Williams asked. “That’s correct.”
Mosby’s office did not respond to questions about this and other issues in the case. A spokesperson for the Baltimore Police Department wrote in an email to The Intercept: “Officers are not compelled to give statements that can be later used in court. They are afforded the same rights as any citizen in situations that involve a criminal probe. No statements have been made public.” He did not respond to follow-up requests for clarification about why the department’s own general orders were not followed in investigating this officer-involved shooting. The department also filed a “motion for protective order” in the case, successfully asking the judge to exclude documentation, including about the officers’ prior use of force, from trial.
But the officers’ unraveling testimony was not the only problem for prosecutors.
A major blow to the state’s case came from the main civilian witness, the cab driver Charles Holden. To investigators, Holden had described the man who had tried to rob him as wearing shorts, a short-sleeve shirt, and plaited hair. He said he was holding the gun in his right hand, but didn’t notice any tattoos. That day, Davis was wearing long blue jeans and a tank top. His hair was cropped short and his arms are covered in tattoos. In court, Holden asked to get a closer look at Davis. “I got bad eyes,” he said. He got up from the witness stand to better see him then said flatly, “To my recollection that don’t look like him to me.”
Another witness, Martina Washington, who had been inside the garage when police started shooting, testified that she was pressured by officers to describe the man who ran into the garage. “I was so scared, I was frustrated, and they’re sitting down there, saying all this stuff to you, and they keep telling you what they want you to say,” she said at trial, also admitting that she had been drinking that day.
In the end, it seems, the jury was unconvinced by the officers’ testimony and acquitted Davis of all charges related to the robbery and standoff. Oddly, in a press releaseannouncing Davis’ sentencing on the remaining charge, the State’s Attorney’s Office ignored the fact that he was acquitted of most counts and described the incident as if it had happened the way their original charges implied. “Davis entered a man’s vehicle and demanded a ride,” the release stated. “The man refused and Davis pulled out a gun from his bag and pointed it at the frightened driver and demanded money.”
Still, the contradictory testimony wasn’t enough to clear Davis of the most damaging evidence against him: the fingerprints on the gun found in the garage, which a police department’s expert testified were irrefutably his. Francis-Williams denied the gun belonged to her client and in cross-examination of the officers she questioned whether his prints might have ended up on it while he was unconscious. “They’re in damage control. Why? Because they shot the wrong person,” she then told the jury in her closing statement. “They double down hoping that no one will notice, that an innocent man will be convicted and we’ll close the books on this.”
Assistant State’s Attorney LaZette Ringgold-Kirksey rejected the cover-up allegation. “There’s too much crime going on in Baltimore to think this guy is that special to waste time to make up evidence,” she said, arguing that if she pointed a gun at jurors they wouldn’t remember what she was wearing, just that she pointed a gun at them. “Who cares about the little minutiae or details?” she said.
The details — particularly about the failure to follow procedure and question in a timely manner the officers involved in Davis’ shooting — should matter to the institutions of a city that’s purportedly seeking to amend relationships with the community it serves.
Holsey said she cheered Mosby when she charged the officers in the Gray case. “I was excited. I felt like she was on our side, and she could not be a pawn of the system,” Holsey said. “That’s why when this happened to Keith, we were like, as soon as it hits her desk, she’s going to make it right, she’s going to fix it.”
Now Holsey sees Mosby as “part of the problem,” as she said while confronting her directly at a tense community meeting. “You talk about ripping families apart — that’s what you’re doing. You keep these men locked up with little to no evidence,” she angrily told Mosby, who walked out of the event as Holsey spoke.
If Mosby hoped to become the face of a new era for Baltimore law enforcement, she has largely failed. As the first Gray trial ended in a mistrial and the second in acquittal, Mosby has been widely criticized for her poor handling of those cases, and two of the officers she indicted have sued her for defamation. The trial of a third officer in Gray’s case is set to begin today. Meanwhile, Mosby’s refusal to reopen the case of Tyrone West, another black man killed by Baltimore police, and her role in Davis’s case have made her the object of the anger and frustration of protesters who once praised her.
Oppenheim, the public defender, said the handling of the Davis case was “just reflective of what goes on in a typical case.”
“It speaks to what’s going on inside the police department and in the State’s Attorney’s Office,” he added. “They’re overworked, and under-resourced, and oftentimes they’re throwing things together that are given to them poorly by the police. It’s a bad situation.”