The third (of six) indicted Baltimore police officer charged in the death of Freddie Gray was acquitted last week, and how the rest of the trials, if they even occur, will play out is now a foregone conclusion. To be fair, this was a forgone conclusion from that moment that Baltimore City Attorney Marilyn Mosby charged the officers a year ago without sufficient justification beyond her own political ambitions, those of her husband (who is now running for mayor), racial bias and a desire to mollify rioters. Most commentators believed the charges were premature, rushed to avoid civic unrest. To say that is really to say that she allowed a mob to dictate to law enforcement. This was unethical, dangerous and despicable then, and remains so today.
If officer Caesar R. Goodson Jr., who drove the police transport van in which Gray suffered the spinal cord injury that killed him, could not be found guilty of intentionally killing Freddie Gray, nobody can. Says the New York Times,
“His acquittal on seven counts leaves the state without any convictions after three trials, in one of the nation’s most closely watched police misconduct cases — and continues to leave open the question of what, exactly, happened to Mr. Gray inside the van….Judge Barry G. Williams, who presided over the Goodson trial, issued the verdicts to a hushed, packed courtroom. He drew no conclusions about exactly when during the van ride Mr. Gray got hurt, saying there were several “equally plausible scenarios.” And he rejected the state’s contention that the officer had given Mr. Gray an intentional “rough ride” and knowingly endangered him by failing to buckle him into the van or provide medical help.”
The prosecutor isn’t supposed to ruin the lives and careers of presumptively innocent law enforcement officials to try to find out what happened to Freddie Gray. The prosecutor is supposed to investigate until sufficient evidence tells her that a crime was committed, and the she has enough of that evidence to get a legitimate conviction. The three trials have shown that such evidence either doesn’t exist, or was never found. No, we don’t know what killed Freddie Gray, and that’s called “reasonable doubt.”
Mosby was aware that there was reasonable doubt, and the indicted six officers anyway, and in a vainglorious manner too.
As I said: despicable.
It was almost exactly nine years ago when another despicably incompetent and unethical prosecutor, Mike Nifong, lost his job, his law license and his freedom—he was sent to prison—for bring ruinous charges of rape against a group of white Duke lacrosse students to ingratiate himself to black voters, who reflexively sided with their “victim,” a black sex worker who was a serial liar. Nifong’s misconduct included ignoring and withholding DNA evidence that exonerated the students, and so far we don’t know that Mosby engaged in anything that egregious and illegal. However, the description of Nifong by the North Carolina State Bar bar disciplinary board that disbarred him fits Mosby well:
“This matter has been a fiasco,” said disciplinary committee chairman F. Lane Williamson. “It seems that at the root of it is self-deception arising out of self-interest.”
Baltimore should start with firing Mosby, if she doesn’t have the integrity and decency to resign. Then it should investigate to see how she reached her indefensible decision to prosecute the officers while the embers of burning buildings from the Freddie Gray riots were still glowing. There seems to be enough to discipline her without even examining her blatant conflicts of interest, such as knowing her husband was considering a mayoral run. Maryland’s legal ethics rules state :
Rule 3.8. Special Responsibilities of a Prosecutor.
The prosecutor in a criminal case shall:
(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;
(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;
(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; and
(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.
There is little doubt that Mosby scorched (a), unless she believed that she had probable cause without evidence, in which case she’s unethically incompetent. I could make a case that her triumphal statement to the Baltimore mob was a breach of (e) as well. Then there is Maryland Rule 8.4, which says in part…
Rule 8.4. Misconduct.
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Maryland Lawyers’ Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
(e) knowingly manifest by words or conduct when acting in a professional capacity bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status when such action is prejudicial to the administration of justice, provided, however, that legitimate advocacy is not a violation of this paragraph…
There are cases of varying strength to be made that she violated all of these, especially (c) and (d).
I cannot imagine conduct more prejudicial to the administration of justice than a State Attorney intentionally endorsing the concept that the state can be extorted into prosecuting innocent citizens by the threat of violence.