George Washington Law School Professor John F. Banzhaf III has filed an ethics complaint against State’s Attorney Marilyn Mosby with Maryland’s Attorney Grievance Commission. Banzhaf accuses Mosby in his 10-page complaint of breaching Maryland’s rules of professional conduct for lawyers, which requires that a prosecutor refrain from prosecuting a charge unless it is supported by probable cause, in her conflicted and incompetent prosecution of six police officers involved in the arrest of Freddie Gray. The complaint also flags Mosby’s improper use of public statements to bias the administration of justice.
Good.
Of course he is right, as I have repeatedly explained here, here, here, here, and here. I assume there have been other complaints before this one, but he has made the issue a high profile one, and that’s excellent news.
Mosby has earned the Mike NiFong treatment: the unethical prosecutor in the Duke Lacrosse rape case was disbarred, briefly jailed, and sued. She is black, female, and a Democrat, and NiFong remains one of the very, very few prosecutors to be punished significantly for unethical conduct. I will be amazed if the commission does anything momentous or sufficient to discourage grandstanding prosecutors like Mosby in the future, even though such prosecutors are willing to ruin lives for political gain.
I hope I am wrong.
(But I’m not.)
Ethics Alarms 
Here’s to Professor John F. Banzhaf III…
Hip, hip, hooray!
Hip, hip, hooray!
Hip, hip, hooray!
Jack said, “I hope I am wrong.”
I hope you’re wrong on this one too.
Just out of curiosity, are Maryland state bar grievances confidential?
jvb
The filing is a public document. The investigation is confidential.
Ah. That appears to be different from Texas. Client grievances are confidential, where any sanctions issued are public. BODA – Board of Disciplinary Appeals – complaints, though, are public – very public as you can watch on close-circuit television.
jvb
This wasn’t a client grievance, though. This one was a professional grievance, filed and public.
That makes sense. I am not sure if a professional grievance is different from a client-attorney grievance. A friend of mine had a grievance filed against him by a federal judge but it was still confidential.
jvb
Alss, the bar keeps these confidential, but nothing stops the griever from publicizing it—as here.
Does an attorney not associated with these cases have standing to file the grievance? What is the legal relationship between Mosby and Professor Banzhaf? Is it as a citizen of that county/state? Member of the Bar?
jvb
Anyone can file a complaint. I could have. I should have, in fact.
I hope that the ethic commission throws the book at Mosby after they have investigated this case. She has contributed to ruining the lives of these police officers. It is probably a forlorn hope but perhaps the members of the ethics commission will pursue this vigorously.
Friendly correction: Towards the end of the first paragraph you spelled “complaint” as “compliant.”
Great article!
Thanks!
HERE’S SOME UPDATED INFORMATION:
Curt Anderson, chairman of Baltimore’s House delegation, has just praised Baltimore State’s Attorney Marilyn Mosby as “a spokesperson for justice,” but his statement suggests that she has already achieved her goal even if she declines to prosecute the remaining cases against the Baltimore police officers, argues public interest law professor John Banzhaf.
Anderson went on to say that justice would not have been served if the indictments had not issued, but that, although the result was a hung jury and two dismissals of all the charges by the trial judge, justice was nevertheless achieved. His precise words, as quoted in the Baltimore Sun, were: “I don’t think justice would have been served had the officer not at least been indicted . . . . They [the officers] are having their day in court, they won. That’s still justice.”
If justice has already been served by the indictments and initial trials, and if any future trials are already doomed by the many adverse legal and factual determinations also ready made by the same judge who dismissed all charges in the two prior cases, then there appears to no pressing need to continue what appears to have now become an exercise is futility.
“In other words,” says Banzhaf, “Anderson seems to be providing Mosby with a graceful way of exiting: she could say ‘I did my best . . . I got indictments . . . I conducted trials . . and all of this amounts to justice . . . so there’s no need to continue costly trials which could further embarrass Baltimore.'”
“If former Durham County, NC, district attorney Mike Nifong had taken this step in the infamous Duke lacrosse rape cases, and dropped charges when it became clear to most observers that the facts just did not support a conviction beyond a reasonable doubt, he might not have been disbarred,” says Banzhaf, who helped bring Nifong down.
“In terms of runaway prosecutors, one could say that Mosby is just Nifong in a dress,” says Banzhaf, “and she would do well to learn from his mistakes. In additional to being disbarred, Nifong was also bankrupted by law suits filed by the defendants.
“In the Goodson trial, the judge held that the prosecutors had unlawfully withheld exculpatory evidence from the defense. This is not only a violation of Maryland disciplinary rules and grounds for disbarment,” notes Banzhaf; “it’s also a violation of the constitutional rights of the defendants, and would provide the basis for civil actions for monetary damages against her.”
In its article the Sun pointed out that, since the most recent verdict, “Mosby has faced criticism from several angles,” citing, among others, a formal complaint by Banzhaf seeking Mosby’s disbarment.
Banzhaf also played a role in bringing Nifong’s criminal charges against the Duke lacrosse players to an end. His disciplinary complaints against then-Congressman Barney Frank helped lead to his censure by the House; his similar complaint against then-Congresswoman Geraldine Ferraro helped to discredit her in the 1984 presidential election; and a law suit he orchestrated forced former vice president Spiro T. Agnew to return the money he had taken in bribes.
Can we jump Banzhaf to SCOTUS level … or perhaps just Attorney General?
pennagain said, “Can we jump Banzhaf to SCOTUS level … or perhaps just Attorney General?”
He might be less effective in either of those positions.
Then again he might be moreso. Independent actors such as Banzhaf tend to grow to fit their positions in life. However, I thought to do a practical check and discovered that the man is 75 years old . . . and it is clear that academia needs him desperately.
Anderson went on to say that justice would not have been served if the indictments had not issued, but that, although the result was a hung jury and two dismissals of all the charges by the trial judge, justice was nevertheless achieved. His precise words, as quoted in the Baltimore Sun, were: “I don’t think justice would have been served had the officer not at least been indicted . . . . They [the officers] are having their day in court, they won. That’s still justice.”
Unbelievable. Justice was served by getting indictments? What a perverse statement. I guess Anderson’s never heard of ham sandwiches.
The officers had their day in court? As criminal defendants? I’m sure that’s what they’ve been hoping for. Their day in court. Being booked. Hiring lawyers and spending hours with them. Not working. That’s justice. Sure. What a bunch of gerbils.