In a legal ethics seminar I taught this week for government attorneys, the vast majority of them voted that Marilyn Mosby’s vainglorious announcement of charges against six officers in the death of Freddie Gray was prosecutorial abuse, and a blatant violation of professional ethics rule 3.8, which directs that (this is the Maryland version)…
The prosecutor in a criminal case shall:
(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
(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.
Of course it was a breach of ethics, and an outrageous one. Her statement, which I discussed here, not only overstated her justification for bringing the charges, which were rushed and announced before a careful investigation was completed, it also stated that the officers were guilty, and worse, that the charges were being brought because the demonstrating and rioting protesters has demanded it. Mosby’s words suggested that she stood with the mob.
The irony, as well as the disgrace of her performance, and performance it was for the politically ambitious State’s Attorney whose desire to grandstand exceeds her competence, was that she made a just and fair outcome in the Freddie Gray case less likely, not more. As many predicted, attorneys for the officers are claiming that Mosby’s public announcement of the charges tainted the pool of potential jurors for their trial, and also showed her to be biased and conflicted. They have asked a judge to throw the charges out, and if not, to disqualify Mosby and her entire department.
Her office’s rebuttal to these accusations shows that suspicions about the motives for Mosby’s charging statement—in addition to her desire to ingratiate herself with potential voters who had been tearing the city apart, that is—were correct. Michael Schatzow, Mosby’s top deputy, countered that his boss’s announcement from the steps of Baltimore’s War Memorial was a reasonable response in a city swooning from a night of riots, arson and looting.
“Mrs. Mosby was trying to calm the crowd, not incite it,” Schatzow wrote in response to the defense motion. “Her repeated pleas for peace while the criminal justice system does its work served a legitimate law enforcement function.”
“Served a legitimate law enforcement function” invokes section e) of Rule 3.8 quoted above, and in this context, it is nonsense, as well as disingenuous. A prosecutor is not permitted to violate section a), which requires that no charges be made without probable cause, because of an exception to section e). Moreover, Mosby easily could have called for peace without telling the mob that in Baltimore, rioters dictate to prosecutors. “I heard your call for ‘no justice, no peace,'” she said, to cheers. What could that possibly mean other than “I am charging the officers because you demanded it”? A prosecutor may not do that, and thus a prosecutor may not tell the public that she is doing that. Yet here is her deputy admitting that Moseby’s announcement was designed to “calm the crowd.” How did it calm the crowd? First, it calmed the crowd by giving them what they wanted, and then by telling them that her official action was prompted by their illegal conduct.
This can never meet the standard of a legitimate law enforcement function. A legitimate law enforcement function cannot consist of encouraging mob violence and law-breaking as a means of forcing prosecutorial action by definition. “I had to endorse rioting to stop it” is cowardly, incompetent, self-defeating, batty, and obviously unethical as well.
Immediately upon hearing Mosby’s original announcement of the charges, criminal defense attorney and former Harvard Law professor Alan Dershowitz, usually an avowed foe of police officers, concluded that Mosby acted out of a “desire to prevent riots,” as her justification now confirms. He predicted that it will be “virtually impossible” for her to win the cases. She also over-charged, he said, as there was “no plausible, hypothetical, conceivable case for murder” and that if it went forward, the trial of the officers would be a ”show trial.” It is “unlikely they’ll get any convictions in this case,” he concluded, and predicted that they would surely “be reversed on appeal” if there were any guilty verdicts. Dershowitz also anticipated the effort to have Mosby removed as prosecutor in the case.
Being removed may even be what she wants. Then she can claim to be the champion of the mob, trying to achieve peace and justice while being foiled by a racist justice system. If the officers are acquitted, or a conviction is overturned on appeal, or the cases are tossed out of court as lacking sufficient evidence, she can duck accountability while pursuing her political ambitions. In truth, when the prosecution fails, the fault will all be hers whether she tries the case or not.
Evidence that the charges were issued without due diligence and probable cause is rife. Mosby based her charges in part on the theory that Freddie Gray’s arrest was unjustified, because the knife he was carrying was legal. A police task force, however, eventually examined the weapon and determined that it was spring-assisted and therefore illegal. In addition, Mosby was in such a rush to placate the rioters that she inadvertently charged two innocent people, mixing them up with two of the officers.
All, she claims, in an ethical effort to “calm the crowd.” Her premature, excessive and unjust charges have had the deadly result of causing Baltimore police officers to fall into a defensive pattern of law enforcement, resulting in an epic spike in murders and crime in Baltimore, and maybe elsewhere as well. Homicides are up 20% in Washington, D.C. too.
What Marilyn Mosby has done is to empower lawlessness, by announcing that a prosecutor can be extorted by the threat of mob violence to charge a citizen with serious crimes, whether the citizen is guilty or not. She has destroyed any integrity her office might have had, as well as undermining faith in prosecutors everywhere. If a prosecutor can bring criminal charges against a citizen without probable cause to prevent rioting, then a mob can target anyone, for any reason.
Mosby allowed the mob to force her to bring charges against police officers without sufficient evidence, shattering their reason to trust either the community they are pledged to serve, or the officials who are supposedly their allies. The consequence appears to be deaths that would not have occurred if police officers had not been sent the message that doing their jobs could place them at risk of public condemnation with coerced cooperation from authorities.
There is more. By appearing to promise Baltimore’s mob “justice” in the form of convictions of the six officers, Mosby lit the fuse for anger and rioting to come when her inept and hasty charges fail. Who will she charge then to “calm the crowd”?
There are prosecutors whose misconduct has been affirmatively evil, sending innocent men to prison by withholding evidence. There are prosecutors who are corrupt, allowing their judgment to be controlled by bribes or cronies. Marilyn Mosby, however, has displayed a combination of recklessness, irresponsible pandering to lawlessness, incompetence, foolishness, arrogance, abuse of power and professional misconduct that is unprecedented in my experience.