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.
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.