A Particularly Dangerous Ethics Dunce Display: State’s Attorney Marilyn Mosby’s Unethical Statement Regarding Charges In The Death Of Freddie Gray

State’s Attorney Marilyn Mosby announced today that the six Baltimore police officers involved in the arrest and subsequent death of Freddie Gray  have been charged with criminal charges  second-degree murder, manslaughter, second-degree assault, vehicular manslaughter , and misconduct in office. I have no comment on that: I haven’t seen the evidence. I will assume the charges are justified base on what evidence there is.

Nonetheless, Mosby’s announcement and related statements from  the steps of Baltimore’s War Memorial Building were unethical, and indeed  constituted a professional ethics breach:

  • Mosby said she told Gray’s family that “no one is above the law and I would pursue justice upon their behalf.” Unethical. Her client isn’t the family. Her client is the state. If the evidence appears too weak to get a conviction based on any new revelations, her duty to her client, which only requires justice, not justice for any party, would be to drop the case. Telling the family that she is working “on their behalf” is either a lie, or, if true, unethical. She is not their lawyer or the victim’s lawyer.
  • “I heard your call for ‘no justice, no peace,'” she said. “Your peace is sincerely needed as I work to deliver justice on behalf of this young man.”

Ugh. Again the “on behalf of” misstatement. Worse, though, is “I heard your call for ‘no justice, no peace.” What are we to take from this statement, other than the disgraceful admission that the indictment is in response to mob violence and threats of more? She may not say that. By saying it, she has undermined the rule of law. Prosecutors must not”hear” demands that a citizen be prosecuted, or not prosecuted. They are ethically obligated to ignore them, and do what the evidence dictates.

The demonstrators obviously got her meaning. Desmond Taylor, 29, shouted to the crowd,  “This day means that your actions bring consequences in Baltimore City.”

Imagine what else riots and arson might bring!

  • The State’s attorney is married to Baltimore City Councilman Nick Mosby, meaning that she knows that if she doesn’t indict, his career is toast. That’s a conflict of interest, and I would say an unwaivable one. As a government official, it leaves a big, steaming appearance of impropriety too, and I can’t believe she doesn’t know it.
  • The tone of her statement violates Maryland Rule Of Professional Conduct Rule 3.8, Special Responsibilities of a Prosecutor:

(e) except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent an employee or other person under the control of the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.

The statements about representing the family and about nobody being above the law suggests that the officers are guilty, and certainly create a substantial likelihood of heightening public condemnation of the accused.

The riots made this a political prosecution unless a tough and fair prosecutor made sure that it wasn’t.

Marilyn Mosby was not up to the task.

15 thoughts on “A Particularly Dangerous Ethics Dunce Display: State’s Attorney Marilyn Mosby’s Unethical Statement Regarding Charges In The Death Of Freddie Gray

  1. Nor, it appears, is this the only conflict of interest. Apparently, Mrs. Mosby is herself very high up in the political circles of her state that stand to gain from insurrections. And, because of her connections and her husband’s position, she was under pressure to push indictments as quickly as possible. In doing so, however, she may have cut too many legal corners, according to some of the sources I’ve read. If the final result of these indictments turn out to be those policemen released on a technicality, all hell will break loose. Justice is supposed to be blind to political considerations. Naturally, there’s no way to keep the system pristine. But this woman, like other jurists these days, isn’t even giving it lip service. God help us all if this becomes the rule for jurisprudence in America rather than the exception. The tendency, I fear, seems to be for political expedience over the rule of law.

    • Especially if you’re black. I would think a black prosecutor would, given the day and age, and the presence of someone as inflammatory as Al Sharpton, understand the need for rejecting the political blackmail being practiced by Baltimore blacks. I realize this will get me branded as a racist, but somebody’s got to say it.

  2. I don’t think there’s anything wrong with “nobody is above the law.” Nobody should be above the law. It’s what she said next that’s the problem.

  3. You are right to be concerned about any perceived conflict of interest. But you seem wilfully to ignore a key point: that a not insignificant portion of the population views the justice system as being in cahoots with the police. And it isn’t hard to find reasons from recent history as to why they might hold this view. Marilyn Mosby’s efforts to reassure ‘the people’ that she is properly in pursuit of justice should be applauded. ‘No justice, no peace’ is not blackmail. It is the traditional response of people who view the system as rigged against them. It should be a high priority of all police and law officials to correct this view.

    • Wrong. In fact, hideously wrong.

      1. The police are part of the justice system. They work on the same side as the prosecutors. That’s no “cahoots,” that’s the system.

      2. Whatever the perception, the prosecutor’s job is to follow the evidence, and what protesters, the media or public opinion want or thinks is 100% irrelevant.

      3. It doesn’t matter why they might hold that view. Other events and controversies have nothing to do with this one. An ethical prosecutor shouldn’t be more or less likely to indict someone because of what happened in Missouri, New York or anywhere else.

      4. “Marilyn Mosby’s efforts to reassure ‘the people’ that she is properly in pursuit of justice should be applauded.” Not if she misrepresents the system to do it, they aren’t. These people will only be reassured with a conviction. Should she reassure them that this is guaranteed too?

      5. ‘No justice, no peace’ is not blackmail’ It’s blackmail by definition when it is accompanied by violence and riots. What does “no peace” mean in your language? (Hint: It’s a threat.)

      6. A mob doesn’t dictate justice, or even know what justice is. It should not be encouraged to believe it has any influence at all.

      7. Just because a response is “traditional” doesn’t make it right, or responsible.

      “It should be a high priority of all police and law officials to correct this view” is the only accurate statement in your post. But this wasn’t the way to do it.

      • So if as you say “The police …..work on the same side as the prosecutors ….” who should act to investigate and if appropriate prosecute police officers? Isn’t this the most significant ‘conflict of interest’?

        • 1. There’s no “if you say” about it: police and prosecutors are on the same team.
          2. There is no more conflict than in any organization or system that maintains discipline. The military doesn’t hesitate to prosecute and punish their own. When you don’t have a political hack running Justice, the Justice Department does a pretty good job investigating crimes within the government.
          3. Like any system, the question is whether a professional can work through inherent bias or not. Bias isn’t necessarily a conflict of interest, though it can be one. The Rules tell lawyers how to handle bias, and the ethical, honorable prosecutors handle it. The unethical ones don’t.
          4. THIS prosecutor has the opposite bias. That’s just as troublesome, indeed moreso. No system functions in an absence of trust.
          5. The complaint was made about the Ferguson prosecutor. He was exactly right, and fair….and vindicated by the evidence and the result.

          • It would be better if there was an independent agency to investigate deaths in custody, but to my knowledge for this case, there isn’t. It is unreasonable to expect ‘the system’ not to protect its own, or not at least to be susceptible to suspicion of bias in favour of its own. The prosecutor in Baltimore has a hard job and deserves some support. To accuse her of bias (as you do and without clear evidence) and a ‘party hack’ as well as a ‘dunce’ is in my view irresponsible. Yes, it is a test of professionalism to be able to work through inherent bias. The even harder test is to be seen to work through that bias.

            The prosecutor will bring her case to court, representing ‘the people’ as is her job, and the accused will be able to defend themselves if they wish, with the help of professional lawyers. Until then, the accused should be accorded the presumption of innocence, and Marilyn Mosby the presumption of competence.

            I am slightly perplexed by your evident anger. The real worry is surely when bias might lead to individuals not being prosecuted when they should be. A biased prosecutor can leave felons on the street that could or should have been put behind bars. But a prosecutor biased the other way cannot so easily place an innocent man behind bars as the determination of guilt or innocence is not in her hands.

            • Andrew, part of my evident anger is based on the fact that I am a lawyer, a former prosecutor and a legal ethicist. Sure, it’s a hard job being prosecutor—so what? If you accept the responsibilities of a tough, important job that the system depends upon, you have an obligation to do it right.

              This one was obligated by the rules and principles of the profession to have probable cause to bring charges. Now that I’ve seen what she has, it’s very clear that she did’t, not to charge murder. What’s the motive? Where’s proof of intent? It is undoubtedly lousy, negligent police work that contributed to a death, but that’s not a crime, and absent one of the cops “flipping” and saying that they all got together to agree to kill Freddie—why?—Alan Dershowitz is right: the odds are that the cops will walk, and that it’s a show trial, or as I suggested in my earlier post, The Trayvon Martin Scenario.

              A prosecutor’s only bias is toward the integrity of the system, not to mollify mobs, not to sacrifice a few citizens for the “peace,” not to be trying cases “on behalf of victims,” not to prove that “black lives matter,” and definitely not to use the facts or “narratives” of other cases in other jurisdiction as justification to warp the evidnec in this one. The public doesn’t understand how long it takes to investigate a possible murder? Tough. Her job is to explain how long, not to cut the period short.

              Prosecutor and defense attorneys have weighed-in critically on these indictments. She definitely over-charged—yes, a lot of prosecutor do it, but it’s still unethical. She has no presumption of competence, nor deserves one, when she acts unethically and incompetently to play to the mob. Cheers and celebrating by people who know nothing about the evidence, after a prosecutor has dishonestly claimed that an incomplete and rushed investigation was complete and thorough, is redolent of the reaction after the O.J. Simpson verdict. That’s politics, not justice.

              My post was kinder than she deserves.

    • “It should be a high priority of all police and law officials to correct this view.”
      Indeed they should, by being GOOD Police and law enforcement officials, not pandering to the demands of a bunch of violent, rioting black thugs, and “Justice or no peace” most CERTAINLY is blackmail.

  4. “No Justice, No Peace” is actually a true statement. If a government were engaging in unjust actions towards the citizenry, then by definition, there is no peace for the citizenry. But these beautifully veiled statements are exactly how agitators can get away with saying one thing and defending themselves like they really meant the other…

    • Because what they really meant was “If we don’t get what we call justice — that is an immediate crucifixion of all officers involved, due process be damned, then we will be the originators of there being no peace”

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