Monday, May 18, 2015

Trading Ethics for Politics

I said previously that Baltimore State's Attorney Marilyn Mosby's haste in charging six police officers reflected "inexperience, recklessness, political ambition or all of the above."  The evidence is  mounting.  It's all of the above.

I already discussed Mosby's failure to use the important tools available to her that any competent prosecutor would have taken.  I was willing to believe that this reckless failure stemmed from inexperience.  

But her press conference was troubling in how far it strayed from a prosecutor's duty.  She addressed herself to protesters across the country, embraced their cause, called for sociological change, promised justice for the young and for Freddie Gray.  In her own words:

"To the people of Baltimore and the demonstrators across America: I heard your call for ‘No justice, no peace.’ Your peace is sincerely needed as I work to deliver justice on behalf of this young man...
Last but certainly not least, to the youth of the city. I will seek justice on your behalf. This is a moment. This is your moment. Let’s insure we have peaceful and productive rallies that will develop structural and systemic changes for generations to come. You’re at the forefront of this cause and as young people, our time is now.”  
These words, together with her demeanor, drew praise from newspaper editors, TV reviewers and many in the public. But they were the words of a politician, not a prosecutor. As a prosecutor her performance was awful, violating her ethical duty and generating suspicion that her charges were political. 

Then we learned that Mosby gave a speech while she was conducting her own "parallel" investigation into Freddie Gray's death, a speech in which she touched on themes of racial injustice and frustration, chastised those who called the looters "thugs" (they are "our children"), and promised that "we will pursue justice by and any all means necessary."

By and all means necessary.  So much for the confines of the law.  And what justice was she referring to?  Social justice, through the prosecutor's office?  This speech was made before her own investigation was complete.  Mosby handed the defendants in the Freddie Gray case the ammunition to claim she is politically prosecuting them.    

And she keeps on doing it.  She took a star turn on the stage of a Prince concert while he was singing a song about Freddie Gray.  More theatre.  More politics.  

Now the Daily Record reports that another defendant is challenging Mosby's impartiality.  Last year two police officers were charged with animal cruelty in the death of a dog.  They both were waiting for trial, but on the same day that Mosby took her oath of office, one case was dismissed. That case was handled by the office of Billy Murphy, the same Billy Murphy who represents the family of Freddie Gray.  Murphy not only was a visible and active Mosby campaign supporter but he served on her transition team.  

Mosby's office claimed that the dismissal was based on "developments" in an "ongoing investigation."  But there was no ongoing investigation.  In fact, the only new evidence produced in the months before the dismissal was a report that implicated the officer represented by Murphy's office.  

It has stink all over it, the strong smell of a favor delivered upon taking office. We are used to politicians horse trading. But prosecutors?  It's downright frightening.  Another example of her personal interest at work also came upon taking office, when she fired a prosecutor in the middle of a trial.  Revenge over justice, too, as she cared not one whit about the result in the case. 
Mosby is in the wrong  office.  Once elected as State's Attorney, she had to abide by ethical rules that she repeatedly ignores.  Instead of instilling confidence that she will follow the evidence wherever it leads, she spreads the message that she has a social cause and will take "any means" to further it.  She already used her power to charge crimes that are not supported by her own version of events in the death of Freddie Gray.  Now we have the appearance of her dismissing charges for benefactors.  

Politicians can lead wherever they choose.  But unless prosecutors are bulwarks against politics in the criminal justice system, that system fails.  


Let me recommend two excellent pieces recently published by the Sun that will help enlighten those interested in learning more about the system. 

First, a former police officer turned lawyer explains why public and internal agency pressure to perform results in poor relationships between some communities and the police.  

Second, two former federal prosecutors write that Mosby has a second chance to get the charges right, and put the criminal justice system back on track.  


  1. Thank you for picking up this issue for your blog. I hope that you continue to follow this story. You perspective is still relevant and valued by many!

  2. Page: Do you have any thoughts on how the knife issue has played out thus far?

    If I recall correctly, the false arrest charge was the only one not returned by the grand jury, which gave Mosby an out after having incorrectly claimed that Gray's knife was legal. She could have dropped it there, but instead, she (or Schatzow, on her behalf) doubled down on the false arrest theory, arguing that the officers committed misconduct and assault by arresting Gray without probable cause.

    The SAO's theory is that “Mr. Gray was handcuffed at his surrendering location, moved a few feet away, and placed in a prone position with his arms handcuffed behind his back, all before the arresting officers found the knife,” and therefore, the officers arrested him before they had cause to do so. Do you think this is as far-fetched a theory as I do? Their suggestion seems to be that the officers transformed a valid Terry stop into an improper arrest by using handcuffs on Gray and moving him a short distance. Plenty of court cases, and even the BPD's general orders, say that handcuffs can be used during the course of a Terry stop. So even if these actions did elevate the encounter to an arrest as a matter of Fourth Amendment law (which I doubt), that would be such a close call that I doubt the officers could even be held civilly liable. And yet Mosby wants to charge them criminally.