Grieving: Freddie Gray and Marilyn Mosby

There are two unquestionable data points. The first is that Freddie Gray shouldn’t be dead. The second is that the prosecution of police officers for Freddie Gray’s death by Maryland State’s Attorney Marilyn Mosby has been an abject failure of massive proportions. Some will insist there’s a connection between these two data points. After all, if there is a wrongful death of a person in the hands of police, there must be a criminal cop who must be convicted.

Unfortunately, that isn’t how law works.  It’s not just a matter of the usual stumbling block, the “reasonably scared cop rule,” but that a criminal conviction requires proof of criminal conduct.  The “but for” rationalization that many rely on as a substitute for evidence isn’t good enough to get a conviction. And indeed, every case taken to trial by Mosby has failed to result in a conviction.

The failure to obtain a conviction does not mean that the death of Freddie Gray is unworthy of being grieved.  But is the failure to obtain a conviction deserving of Mosby being grieved? George Washington law prof John Banzhaf has aggressively taken the position that it does.

Some of us have been critical of the changes brought by State’s Attorney Marilyn J. Mosby in the death of Freddie Gray. As we have seen in past high-profile cases, the prosecutors over charged the case against various defendants with very little evidence. The result has been a series of acquittals. Now, my GWU colleague Professor John Banzhaf III has taken that controversy to a new level with the filing of complaints seeking disbarment with the Maryland Attorney Grievance Commission against Mosby, Chief Deputy State’s Attorney Michael Schatzow and Deputy State’s Attorney Janice Bledsoe. He alleges that these prosecutors knowingly brought charges without a sufficient evidentiary basis.

Anyone can file a grievance against any lawyer. Whether there is a basis for it, and where it goes, is another matter. And why a law prof would decide that it’s his place to do so raises a very interesting question.

Professor Banzhaf believes that the lack of probable cause is obvious but simply ignored by the prosecutors. His earlier complaint against Mosby called her a “runaway prosecutor.” He accused her of yielding to the demands of the mob rather than serving the interests of justice.

For reasons that are unclear, I get press releases from Banzhaf regularly.  He’s been sending out self-aggrandizing press releases almost daily on the subject of Mosby’s unethical prosecutions.  This one arrived this morning.

Ghost of Mike Nifong Haunts Cop Prosecutors in Baltimore
Under Eerily Similar Circumstances, He Was Disbarred, Bankrupted, and Jailed 
WASHINGTON, D.C. (July 21, 2016):  The ghost of Mike Nifong, the former North Carolina district attorney who prosecuted the notorious Duke lacrosse players’ rape cases, today haunts the five prosecutors involved in handling the cases of the six police officers involved in the death of Freddie Gray.

Although they all know that attorney discipline – especially disbarment – is rarely imposed on prosecutors, even if they unconstitutionally withhold exculpatory evidence and overcharge cases, in eerily similar circumstances Nifong was disbarred, forced into bankruptcy, and jailed, notes public interest law professor John Banzhaf, who helped shut Nifong’s prosecutions down.

It is rare that prosecutors are even brought up on ethics charges, much less that they actually suffer discipline as a result of bring found guilty, but it is also exceedingly rare for prosecutors to bring criminal charges against police except in the most notorious of situations, and then almost always for something they did (like shooting), not for something they didn’t do (not using a seat belt for Gray).

These five prosecutors are therefore sailing in uncharted waters, and must carefully consider all their ethical obligations, says Banzhaf, especially since these cases, like the Duke cases, have aroused an immense amount of national publicity and concern, and complaints have been filed and will be investigated.

In both situations, prosecutors were found to have violated the constitutional rights of the defendants by failing to turn over exculpatory evidence.  In both situations prosecutors made false and misleading statements to the public regarding the proceedings.

Perhaps most importantly, however, in both situations prosecutors continued the cases long after there was any reasonable expectation of convictions, says Banzhaf.

This is crucial because the Maryland Lawyer’s Rules of Professional Conduct [RPC 3.8(a)] require that a prosecutor refrain from prosecuting a charge unless it is supported by probable cause, and national standards establish that a prosecution should proceed only if he reasonably believes there is sufficient admissible evidence to support a conviction beyond a reasonable doubt.

In many ways the case for disbarment is stronger against Baltimore State’s Attorney Marilyn Mosby than it was against Nifong, says Banzhaf, who was also involved in Nifong’s downfall.

When they were initially brought, Nifong’s rape cases seemed viable, but their viability was undermined by new factual discoveries.

Moreover, although many apparently suspected at the time that Nifong has an ulterior motive for initiating the criminal charges, there was no direct evidence.  In Mosby’s situation, such evidence does exist, since her speech which effectively promised “justice” if rioters would only give Baltimore “peace,” was taken by many to strongly suggest such an ulterior and improper motive.

While preventing further rioting and looting is a laudable goal, it is not the job of the prosecutor.  A prosecutor may no more bring an indictment not supported by the evidence to appease a crowd and keep order than a judge could make a guilty finding, likewise not supported by the evidence, for exactly the same purpose, notes Banzhaf.

In Mosby’s situation, most legal observers, including Banzhaf, expressed serious doubts that she could win on any of the charges, including the most outrageous one of murder, from the very beginning.

But however weak her cases were at the time they were originally brought, they have now become virtually unwinnable, not because of new evidence as in the Duke cases, but rather because of a serious of rulings by Judge Barry Williams which rejected virtually all of the major theories of possible criminal liability, and which held that on many of the necessary facts there is simply “no evidence.”

In the face of these rulings – one including the driver of the van who played a central role, and another involving the highest ranking officer – a growing and by now virtually uniform chorus of legal experts have proclaimed that the cases are no longer winnable.

Thus none of the prosecutors – and each has an independent legal obligation – can have a reasonable belief that he can prove their cases beyond a reasonable doubt, claims Banzhaf.

Mosby already has two separate formal disciplinary complaints filed against her, and Chief Deputy State’s Attorney Michael Schatzow and Deputy State’s Attorney Janice Bledsoe each have one pending.  Since such complaints are rarely filed, there is little clear precedent regarding the outcome.

Existing rules [19-711(b)(1)] provide that “Bar Counsel shall make an appropriate investigation of every complaint that is not facially frivolous or unfounded.”

Thus, it is already clear that there must be a formal investigation and, as the Nifong situation reminds everyone, the sanctions could be disbarment rather than simply a reprimand.

At least five of the six officers have already filed law suits against Mosby, and it appears that they will shortly be adding additional and stronger counts to increase her potential civil liability.

Although it is often stated, even by experts, that prosecutors enjoy absolute immunity for law suits involving their official actions, there is an important exception, says Banzhaf, who teaches this obscure area of law, and helped use this key exception to derail Nifong.

While it is true that prosecutors are not often charged, much less investigated and punished for ethical violations, the Nifong and Mosby situations may be the beginning of a new trend – especially involving the rare ones with immense public pressure and where strong complaints have been filed.

Brady violations are all too frequent, and the judge’s traditional remedy of simply excluding evidence apparently is not a sufficient deterrent, says Banzhaf.  Likewise, there is growing concern that prosecutors all too frequently overcharge – proceeding with prosecutions they know they can’t win – for the unconstitutional purpose of coercing a guilty plea so the accused can avoid even the small possibility of a draconian sentence.

If complaints are filed, as they were here, in the Nifong case, and in the cases of former congressman Barney Frank and vice presidential candidate Geraldine Ferraro, attorney discipline bodies will be forced to investigate and to issue some opinion; an opinion which they must be fully prepared to justify to the courts, and ultimately to the court of public opinion, says Banzhaf.

How else can we rein in runaway prosecutors, especially when the unsupportable charges they wish to pursue enjoy widespread public support, asks Banzhaf.

JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW, Wash, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/ [email protected]  @profbanzhaf

Before anyone rushes to rip this to shreds as mere self-promotion and grandstanding, bear in mind that if you substitute the name Mike Nifong for Marilyn Mosby, you can better appreciate the potential role of academics in challenging prosecutors who have gone rogue, except that their victims weren’t innocent Duke students but cops.  And Banzhaf has, by no means, been the only lawyer who has tried to capitalize on the failed Mosby prosecutions for his own self-aggrandizement.

There is an enormous gap between a prosecution that results in a verdict of acquittal and unethical conduct based on concealment of evidence, lies and deceit.  Notably, the Mosby prosecutions survived dismissal and made it to trial, even though they failed at trial to provide the evidence sufficient to obtain a conviction. There may well be a sound argument that Mosby rushed to indict, pursued cases when it was clear that the evidence was inadequate to convict, and continued to pursue prosecutions after this inadequacy became manifest.

It was definitely not the height of prosecutorial competence. But that’s not the basis for a grievance against Mosby.  If there is a substantive basis for a grievance, It has yet to be revealed. That Banzhaf issues his own vapid press releases about it in the meantime just adds to the circus surrounding Freddie Gray’s death.  And regardless of the proliferation of nonsense, Freddie Gray shouldn’t be dead, but he is.  If there is a need to grieve, it should be for Freddie Gray.

17 thoughts on “Grieving: Freddie Gray and Marilyn Mosby

    1. SHG Post author

      Losing a string of prosecutions against cops doesn’t make for a compelling re-election campaign.

      “Re-elect Marilyn Mosby: I failed, but I tried.”

      1. Marc not-R

        But that would be more honest than almost any other slogan used by prosecutors these days when running for the elected DA position.

      2. B. McLeod

        At least it’s a possible re-election campaign, whereas “I didn’t even try” would not be. Also, a professor who never has to make difficult calls can deride this as cowardly concession to the mob, but whether the city is going to burn down around one’s ears is sometimes a real life practical consideration for prosecutors. I think she realistically had to charge at least some of these cases.

        1. SHG Post author

          That’s somewhat Banzhaf’s point, that the decision was made to appease the mob rather than exercise sound prosecutorial discretion. It’s a fair political purpose, but whether it’s sufficient is debatable.

          1. B. McLeod

            Of course. Everything is “debatable.” But sometimes “sound prosecutorial discretion” and “appeasing the mob” aren’t mutually exclusive. Sometimes, a prosecutor really needs to show people who are concerned about legitimate issues of police conduct that available avenues for judicial determination are at least being attempted. Or, as we sometimes say, that those concerned “have had their day in court.” Abstract academic holier-than-thou bullshitters aside, I have to say that in her place I would have charged some cases here. Maybe not all of them, but at least every one in which a jury might reasonably bring a conviction. Then, if the Banzhafs of the world wanted to pile on, I would deal with them in the resulting ethics case as necessary. If, at the end of the day, I didn’t get a single conviction and had to bear a sanction, but managed to preserve public order and faith in the courts, that would be my price to pay, and I would be OK with that.

  1. John Barleycorn

    There ought to be a Law about law professors referring to themselves in the third person.

    I would be interested to know what the good sam laws are in MA.

    Something tells me if my neighbors kid took a header after surfing behind my tractor, on the way to the mailboxes, on his skate board and I threw him on the back of the fourwheeler or in the bed of my truck to take him to the emergency room via the short cut things would not work out to well for me if he arrived DOA. Even if he deserved the short cut as punishment for being such a terrible skate boarder.

    P.S. John should seriously start commenting in your back pages I just dig his consise and after getting a feel for him even I might be able to preform a seance with his cogent ghosts.

  2. Jessica

    The prosecutors overcharged multiple defendants with little evidence? How is that any different than most other criminal cases? Isn’t that just the standard operating procedure of all prosecutors, throw everything at the wall and see what sticks, or what the defendant will plead to?

    1. SHG Post author

      I wouldn’t go so far as to say that’s the norm, but it certainly isn’t particularly unusual.

  3. David Woycechowsky

    I think Mosby made a lot of tactical mistakes. One was not insisting (or at least trying to insist) on jury trials. Another was not more forcefully making the case that the knife was legal. Another was not making a clear acoustic separation between the police officer’s prerogative to chase Freddie Gray and his prerogative to jump on Freddie’s back (or to frisk him) once Freddie fell on the concrete.

    Some the lack of vigor and imagination may have been motivated by fear of judicial estoppel in the present set of cases (eg, the prosecutors office has probably previously taken the position that Freddie’s kind of knife was illegal) or fear of judicial estoppel in future cases (eg, admitting that Wardlow does not establish a per se legit popo prerogative to stop anyone who runs away in a “high crime neighborhood” (see, Stevens concurrence(?) in Wardlow)).

    1. SHG Post author

      This post is not a review of Mosby’s prosecutorial tactics, but if it was, you wouldn’t be qualified to comment.

      1. David Woycechowsky

        “Maryland State’s Attorney Marilyn Mosby has been an abject failure of massive proportions”

        Sorry. I read that quote and somehow thought revciewing Mosby’s performance vis-a-vis the Freddie Gray trials was in play here. Sometimes the rules of this blog seem a bit strange to me.

        1. SHG Post author

          No convictions = abject failure. Read the whole post, not just one sentence, before leaping to the aspect that makes your heart go all aflutter.

          1. David Woycechowsky

            Yes, yes, I get it now. Only members of the defense bar are properly positioned to tell prosecutors what they should have done different to win their cases.

            1. SHG Post author

              This is why your comments are not as appreciated as you want them to be. People who practice criminal law know a little more about criminal law than dilettantes who don’t practice criminal law. But even so, your comment reflected your interest in 1983, the cause for arrest, which has nothing to do with proving complicity in Freddie Gray’s death. In other words, there was nothing whatsoever about your comment that reflected anything illuminating about the prosecution’s failure. You have your interests, which is fine, but they don’t relate to anything meaningful about the prosecution. Just because you don’t get it doesn’t entitle you to make other people stupider.

              So what purpose is served by forcing me to explain why you have no clue what you’re talking about rather than let it go? You are your own worst enemy.

  4. Lisa

    “For reasons that are unclear, I get press releases from Banzhaf regularly. ”

    Well, if you don’t like reading them then kindly reply to the press releases and ask to be taken off the list.
    You are blogging about it so you obviously want the releases.

    So rude.

    1. SHG Post author

      I get unsolicited spam, and not only does it become my problem to “kindly” (because I now have a duty to be kindly to spammers?) reply, but I’m “so rude”? Flacks are too funny.

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