It wasn’t supposed to be this way for State’s Attorney Marilyn Mosby.  When she abruptly brought criminal charges against six Baltimore Police Officers during riots, looting, and arson following the death of community drug dealer Freddie Gray she became an immediate media darling.  Profiles in Vogue quickly followed, as well as prominent speaking engagements (some of which she used as platforms for extrajudicial commentary on the pending trials, a serious breach of ethics).

Interestingly, Mosby didn’t call for justice, per se.  She called for particular forms of justice.  Justice for Freddie Gray.  Justice for “the people of Baltimore” and, remarkably, “the protestors across America” (!).  She called for justice for “those that are angry, hurt, or have their own experiences of injustice at the hands of police officers.”  She wrapped by calling for justice “Last, but certainly not least, to the youth of this City. I will seek justice on your behalf. This is a moment, this is your moment.”

What was notably missing, of course, was any call for justice for the police officers charged.  Innocent until proven guilty, these officers are as entitled to justice and impartial due process as is anyone else in America. Indeed, prosecutors are charged with ensuring that defendants receive justice and due process, a charge implemented through such requirements as having to share any uncovered exculpatory evidence with the defendant’s lawyers.

Many of us sensed from the start that the charges against the officers were based on nothing but political hope and change, a sentiment reinforced strongly in my own mind as prosecutors refused to either bring specificity to the charges against the officers or to disclose the evidence behind those charges.  Now, after three trials, we are proved correct.  The prosecution never had adequate evidence to support those charges against the officers, and indeed may have fabricated much of the remaining tatters of evidence they are waving around today.

This week the four remaining officers facing criminal trials as a result of Freddie Gray’s death–Officer Garrett Miller, Officer William Porter, Sgt. Alicia White, and Lt. Brian Rice–have each again filed nearly identical motions for dismissal of the indictments against them, reports the Baltimore Sun.  Previous motions seeking to dismiss the indictments or charges have been rejected by Trial Judge Barry Williams, but these new motions have new, and previously unaddressed, grounds for dismissal.  (The two remaining officers, Edward Nero and Caesar Goodson, have already been acquitted of all charges.)

Specifically, the officers’ motions have added the newly disclosed truth that the “parallel investigation” purportedly conducted by the Baltimore Sheriffs Office and used as the basis for the criminal charges against the officers never actually took place.

In addition, they have added the also recent disclosure that the lead investigator of the case for the Baltimore Police Department was not allowed to testify freely before the grand jury, but rather was confined to reciting a narrative prepared for her by prosecutors.  Nor was she permitted to answer the grand jury’s numerous questions, which instead fielded by prosecutors.

In addition to their motions for dismissal of the indictments against them, the officers have each filed motions seeking to obtain access to the normally sealed Grand Jury minutes, so that they may investigate additional likely violations of their clients’ due process rights.

Each officer’s motion for dismissal and for Grand Jury minutes is embedded at the bottom of this post.

We also learned in this most recent trial that the medical examiner whose call of homicide was the foundation for the criminal charges against the officers initially believed Gray’s death to have been an accident.  This initial assessment was not disclosed by prosecutors to the defense, as required.

These same officers have already, as previously noted here at Legal Insurrection, filed lawsuits against Marilyn Mosby for wrongful arrest and other claims: Freddie Gray: Five of Six Officers Now Suing Prosecutor Marilyn Mosby.

So egregious has been Mosby’s conduct that even the editorial board of the Baltimore Sun, no bastion of conservatism by any stretch of the imagination, has called for Mosby to cease her prosecutions of the remaining officers: Goodson judgment should force Mosby to reconsider charges.

A Maryland State Delegate, Pat McDonough (R) has begun circulating an online petition calling for Mosby’s resignation, reports the Baltimore Sun, which quotes McDonough as stating:

The people of Maryland and specifically Baltimore have had enough of Marilyn Mosby’s political grandstanding. This was a baseless, malicious prosecution from the beginning and she should drop the remaining charges and then resign.

Further, today the excellent Stately McDaniel Manor blog notes that David A. Plymyer, a former assistant state’s attorney for Maryland’s Anne Arundel County, is calling in the Baltimore Sun for an investigation of Mosby’s office, stating:

The disturbing revelation by The Sun this weekend that Baltimore State’s Attorney Marilyn Mosby or one of her prosecutors may have used a misleading summary of evidence to persuade a grand jury to indict the six Baltimore police officers charged in the death of Freddie Gray demands a formal investigation.

Attorney Plymyer’s entire piece is well-worth reading, here:  Baltimore prosecutor’s office should be investigated for Gray-related murder charge.

The Stately McDaniel Manor also broke early the news that George Washington University law professor John F. Banzhaf III, previously entirely unassociated with the Freddie Gray cases, has independently filed a complaint against Mosby with the Maryland bar.  Banzhaf claims numerous violations by Mosby of provisions of the Maryland Lawyer’s Rules of Professional Conduct, including:

A. to have violated RPC 3.8(a) of the Maryland Lawyer’s Rules of Professional Conduct [RPC] for attorneys which requires that a prosecutor refrain from prosecuting a charge unless it is supported by probable cause, and national standards which establish that a prosecution should proceed only if there is sufficient admissible evidence to support a conviction;

B. to have violated RPC 3.6(b) and RPC 3.8(e) which limit the content of public statements which prosecutors may permissibly make in connection with criminal proceedings;

C. to have violated RPC 3.8(d) by having improperly, illegally, and unconstitutionally withheld and otherwise failed to turn over to defense counsel exculpatory evidence;

D. to, in further violation of RPC 3.8(a), be continuing prosecutions against four of the officers although – especially in the light of detailed findings of fact in two rulings by Judge Barry Williams – there is no longer any basis to reasonably believe that the remaining charges are supported by probable cause, and/or that there is sufficient admissible evidence to support a conviction;

E. to have engaged in conduct which, in its totality, and in light of the above, is inconsistent with the conduct required of attorneys, and especially of public prosecutors, under various ethical standards, including RPC 8.4(c) [“engage in conduct involving dishonesty, fraud, deceit or misrepresentation”] and RPC 8.4(d) [“engage in conduct that is prejudicial to the administration of justice”].

The complete Banzhaf complaint is embedded below.

Mosby now finds herself on the horns of a dilemma.  One the one hand, the growing cries against these irrational and politically motivated prosecutions would seem to call for the currently scheduled four trials to be abandoned. On the other hand, doing so could worsen Mosby’s position with respect to the civil suits the officers have brought against her.

Tough.

Here are the promised embedded documents.  First, the new motions from the four remaining officers to be tried for dismissal of the indictments and for access to the Grand Jury minutes:

Officer Garrett Miller

Officer William Porter

Lieutenant Brian Rice

Sergeant Alicia White

Second, the Banzhaf complaint against Mosby:

OK folks, that’s it for today.  If you don’t hear from me beforehand, have a wonderful and safe July 4th!

–-Andrew, @LawSelfDefense


Attorney Andrew Branca and his firm Law of Self Defense have been providing internationally-recognized expertise in American self-defense law for almost 20 years in the form of books, live seminars & online training (both accredited for CLE), public speaking engagements, and individualized legal consultation.
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