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Freddie Gray Case: Detailed Analysis of Motion to Recuse Prosecutor

Freddie Gray Case: Detailed Analysis of Motion to Recuse Prosecutor

Motion for Recusal details Mosby’s many incontrovertible conflicts of interest

One week ago yesterday Maryland State Prosecutor Marilyn Mosby brought a plethora of charges–including second-degree depraved-heart murder, manslaughter, and assault–against six Baltimore police officers accused in the death of Freddie Gray.

Yesterday, one week to the day after the charges were brought, the defense lawyers collectively filed a motion to dismiss these charges and/or force the recusal of Mosby and her entire office from the case.  We addressed the motion as a news item briefly last night, Freddie Gray case: Defense files motion to remove prosecutor.

Now we dig deeper into the motion.

The motion, consisting of just over 20 substantive pages and about 80 pages of exhibits, is embedded at the bottom of this post. The substantive pages are well worth reading in their entirety.  Here we’ll highlight some of the key points and arguments made, relying as much as possible on selected quotes from the motion itself.

Caveat: This is, of course, a defense motion, and thus should be expected to possess all the biases that would naturally be found in such a document from that source. Nevertheless, unless many of the claims are simply factually incorrect, the motion is a devastating critique of Mosby’s legal ethics in this case in particular and the practices of her office generally.

Mosby’s Public Reading of Charges, and her “Message” to the World

The motion begins by recalling Mosby’s public reading of the charges against the officers on May 1, 2015.  Unusually, Mosby didn’t simply make a generalized statement to the gathered media, but read the Statement of Probable Cause aloud, word-for-word.

It is noteworthy that although this statement read aloud specified the charges against the officers, it never specifies the evidence underlying the charges.  For example, van driver Officer Goodson is charged with second-degree depraved-heart murder, but for what conduct?  What exactly did he do that constitutes this most heinous crime? Mosby didn’t say, and still hasn’t.

Mosby then went on to proclaim a more general “message” to the world, a message hardly consistent with the legal and ethical requirements for being a public prosecutor.  Mosby stated:

To the people of Baltimore and the demonstrators across America, I heard your call for ‘no justice no peace.’ Your peace is sincerely needed as I work to deliver justice on behalf of this young man . . . .[T]o the youth of the city, I will seek justice on your behalf. This is a moment. this is your moment. . . . You’re at the forefront of this cause, and as young people, our time is now.

Needless to say, it is not the role of a local prosecutor to represent the interests of “demonstrators across America,” to accede to cries of “no justice no peace” from a rioting and looting mob, nor to lead a social “cause.”

Indeed, the motion to recuse notes that under Maryland statute, Rule 3.8, Special Responsibilities of a Prosecutor, it is mandated that the prosecutor shall:

refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.

Further, Rule 3.6 mandates that:

[a] lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communications and will have a substantial likelihood of materially prejudicing an adjudication proceeding in the matter.

Mosby’s Many Conflicts of Interest, Summarized

The motion then goes out to summarily list five major conflicts of interest Mosby has in with this prosecution, each of which it then delves into more deeply.  These five are:

(1) the seizing of political and personal gain by Mrs. Mosby and her husband;

(2) personal relationships with individuals who will be witnesses at trial;

(3) the role of her office as the “investigators” for this case;

(4) the pending civil claim against Mrs. Mosby and her office;

(5) the financial interest of the attorney for the family of Freddie Gray, a close friend, financial supporter, and attorney for Mrs. Mosby.

Any of these ought to be sufficient on its own to compel Mosby’s recusal from this prosecution.  Collectively, they make Mosby’s ongoing refusal to recuse herself simply laughable.

Mosby’s Statement of Charges Jurisdictionally Sloppy

The defense motion notes that the Application for Statement of Charges signed by a Baltimore City Sheriff at the direction of Mosby’s office is defective at its core.

It is apparently the position of the State’s Attorney’s Office that the original investigating officers lacked probable cause to arrest Mr. Gray, as the knife for which he was arrested was “lawful under Maryland law.” (emphasis added)

The motion goes on to note that the charging documents allege no allegation of police force that led to Gray’s fatal injuries, nor that “any police officer beat Mr. Gray, or used excessive force upon him.”

The State’s entire position is based upon the unlawful nature of the arrest, which in turn rests upon the purported lawfulness of Gray’s knife under Maryland law, and the subsequent events flowing from that purportedly unlawful arrest (e.g., the alleged failure to seatbelt Gray in the police van and the alleged failure to provide him with medical assistance).

As was pointed out right here at Legal Insurrection the day after the May 1 reading of the charges, however, whether the knife in question was lawful under Maryland law is utterly irrelevant, because Gray was not arrested for a violation of Maryland law (see Freddie Gray’s Knife – Why is Prosecutor Claiming Unlawful Arrest?).

Rather, Gray was arrested on the basis of the knife being unlawful under Baltimore City Code §59-22, as clearly and explicitly stated in the Statement of Charges prepared against Gray:

typed complaint

After exposing this jurisdictional sloppiness on Mosby’s part, the motion goes on to note:

If in fact, the knife was unlawful, or one was reasonable in a belief that it was, the foundation of the State’s argument collapses.  If the knife was actually illegal, it stands to reason that the very people who charged these Officers would then be guilty of false imprisonment of each of the Officer-Defendants, by virtue of the logic employed in the State’s charging decisions. (emphasis added)

The motion goes on to allege that:

Defendants Miler and Nero . . . have requested to see the actual knife on multiple occasions. Each of these requests have been denied.

This refusal by Mosby to disclose to the defense the evidence on which the charges against these officers is premised is nothing short of shocking, and a brutal violation of their due process rights, as I’ve previously noted here:  More Mosby: “Evidence Cannot Be Released Before Trial”.

Mosby’s Chief Prosecutor In Personal Relationship With Leading News Reporter

Key evidence in this case might well come from Donta Allen, who was present in the police van with Gray for roughly 20 of the 30 minutes that Gray was being transported. Allen has given a statement of these events to Baltimore police investigators.

Allen was also, however, later interviewed by a leading local news reporter, WBAL investigative reporter Jayne Miller, an interview the station promoted as an “exclusive.” Allen’s statements in this news interview were, the motion alleges, “substantively different in certain respects from the story he told the original police investigators.”  In particular, Allen’s statements made to Miller were substantively more favorable to the prosecution than were his earlier statements to investigative offices.

The ethical conflict here is raised by the fact that Jayne Miller is publicly acknowledged to be in a romantic relationship with one Janice Bledsoe, Mosby’s chief prosecutor, who would normally be the person selected to lead this prosecution of the six officers.

Indeed, so acute is this conflict that WBAL has since pulled Miller off reporting on this major Baltimore news story, as reported by the Baltimore Sun: WBAL’s Jayne Miller says she will ‘step back’ from Freddie Gray coverage.  So obvious is the conflict that the Baltimore Sun’s media reporter labelled it “Ethics 101.”

The matter is only further clouded when one realizes that Miller’s role in interviewing Allen now makes her a witness in the case, one whom would presumably be examined, or cross-examined, by her lover, Prosecutor Bledsoe, or a prosecutor who reports to Ms. Bledsoe.

Gray Family Lawyer is Also Mosby’s Lawyer, Financial Supporter

A further conflict arises in the context of William Murphy, the Gray family lawyer.

First, it is indisputable that Mosby has had contact with Murphy in the matter of Freddie Gray’s death:

When interviewed recently by CNN’s Don Lemon, Mrs. Mosby was asked about her contact with the Gray family. She indicated that she had brought them in to her office and “spoken with them and their attorney [Murphy].”

Second, Murphy has a long-standing and deeply-rooted personal relationship with Mosby. He was a major financial contributor to her campaign to be State Prosecutor, in the amount of $5,000.  He was an advisor on her transition team following her election to office.

Furthermore, he has served, and perhaps still serves, as Mosby’s personal attorney. A letter referencing Murphy’s representation of Mosby as recently as October 31, 2014, only 6 months before the events of Gray’s death, is attached as an exhibit to the motion to recuse:

Murphy representing Mosby

This motion to recuse also notes the arguably odd coincidence that the very first official day that Mosby took office she entered a nolle proseque (dismissal of charges) against a client of Murphy’s. (That motion is attached as Exhibit 4 of this defense motion to recuse.)

Was this no pros a quid pro quo for Murphy’s support and long-standing friendship? The question need not be answered definitively–the mere reasonable appearance of conflict is sufficient to warrant Mosby’s recusal from this prosecution.

Mosby’s Husband Represents District of Gray’s Arrested and Peak Rioting

Nick Mosby, Prosecutor Mosby’s husband, is Councilman for the 7th District of the Baltimore City Council, the district that includes the location of Gray’s arrest and much of his transportation (during which Gray is claimed by Ms. Mosby to have been murdered by van driver Officer Goodson), as well as the nexus of much of the most violent rioting, looting, and arson that followed the Gray’s death.

As the defense motion to recuse notes:

[Nick Mosby] clearly had a professional and personal interest in the need to eliminate the rioting and destruction of the property in his Council District. Likewise, his wife, Marilyn Mosby, had a professional and personal interest in accommodating the needs of her husband–his political future directly affects her personal, professional, and political interests.

And further that:

Mr. Mosby’s relationship with the State’s Attorney for Baltimore City placed him in a unique position to influence the decision of an elected official who was susceptible to be influenced in choosing to file criminal charges against the defendants in this matter. It is inconceivable that Mrs. Mosby was not influenced by the challenges presented to her husband as a community leader of neighborhoods that were literally “up in flames.” (emphasis added)

And:

Mrs. Mosby [publicly] proclaimed that  she brought criminal charges against the officers to show not only the people of Baltimore, but also “the demonstrators across America” that “I heard your call for ‘no justice, no peace” and proceeded to move forward with the politically motivated prosecution of the six officers . . . As a result, these officers soon found themselves offered up to the masses by Mrs. Mosby to quell the uprising that caused the most harm to the District where her husband is the City Council representative. (emphasis added)

In this context, the motion to recuse notes that the American Bar Association (ABA) General Standards for the Prosecution Function, 3-13(f), Conflicts of Interest states:

A prosecutor should not permit her professional judgment or obligations be affected by his or her own political, financial, business, property or personal interests.

Further, the National District Attorneys Association Prosecution Standard 1-3.3(d) provides that:

The prosecutor should excuse himself or herself from any investigation, prosecution, or other matter where personal interests of the prosecutor would cause a fair-minded, objective observer to conclude that the prosecutor’s neutrality, judgment or ability to administer the law in an objective manner may be compromised.

The motion to recuse concludes on this issue by noting that:

Any fair-minded, objective observer would conclude that Ms. Mosby’s neutrality, judgment and ability to administer the law in an objective manner was, and is, compromised by her relationship with Nick Mosby, and his position as a 7th District Councilman.

Mosby’s Assumption of Role of Investigator/Prosecutor Demands Recusal

In a highly unusual effort Prosecutor Mosby was running an independent, parallel investigation to the normal one run by the Baltimore police department.  As Mosby stated during her May 1 press conference at which she announced the charges against the six offices:

I can tell you from day one, we independently investigated. (emphasis added)

And in a later interview:

I can tell you, as I stated, we had a number of investigators. . . . So, I sent my investigators out to the scene. . . . at no point did we compromise our own independent investigation into this case. (emphasis in defense motion)

As the motion notes:

Mrs. Mosby’s statements are telling in that she repeatedly refers to and implies that the investigators assigned by the Baltimore State’s Attorney’s office are under her control. She refers to them possessively because they are her subordinates and subject to her supervision and management.

The fact that these investigators are controlled by Mrs. Mosby creates a clear and undeniable conflict of interest. These investigators will necessarily be called to testify . . . As Mrs. Mosby is in a supervisory role, these investigator witnesses are at her mercy in terms of their at-will employment status. As a result, these witnesses cannot possibly be expected to testify without undue influence.

. . .

This is precisely the reason for separation of the police department and State’s Attorney’s Office. Here, the State’s Attorney Office has created an indisputable conflict, simultaneously taking on the role of police, prosecutor, and witness. (emphasis added)

Mosby’s Prospective Loss of Immunity Creates Further Risk of Bias

The motion to recuse notes the well established rule that a prosecutor enjoys “absolute immunity for the initiation and pursuit of a criminal prosecution, including presentation of the state’s case at trial,” as well as “the professional evaluation of the evidence assembled by the police and appropriate preparation for its presentation at trial.”(emphasis added) Buckley v. Fitzsimmons, 509 US 259 (US Supreme Court 1939).

Buckley also notes, however, that a prosecutor who acts as an investigator and not as an advocate does not enjoy absolute immunity.

In the Freddie Gray case Prosecutor Mosby, as noted in some detail above:

has gone to great lengths to stress her decision to levy charges was based on her offices “independent investigation,” and not reliant on the Baltimore Police Department’s investigation.

In light of Mosby’s prospective loss of prosecutorial immunity, on May 7 a Tort Claims Notice was served upon both the City of Baltimore and the State of Maryland, alleging that:

false and misleading statements and omissions in the Statement of Probable Cause resulted in the unlawful arrest and detention of each of the six police officers involved in this matter.  (emphasis added)

Among other claims, the Notice avers that:

if, in fact, the knife at issue was illegal (as indicated by Officer Miller in his charging document of Mr. Gray), then not only is there an absolute defense to these criminal cases, but, there is a claim of false imprisonment, arrest and malicious prosecution of the six police officers, resting squarely on the door step of the State’s Attorney’s Office. . . .  and have thus exposed [Mosby] to civil liability and potential discipline by the Attorney Grievance Commission of Maryland, creating an impermissible personal bias and necessitating the appointment of an independent prosecutor. (emphasis added)

“CONCLUSION”

As the motion for recusal concludes:

Each of the above-captioned Defendants have fundamental concerns about undeniable conflicts of interest which have turned the prosecution of this case into a platform for extra-judicial motivations. These concerns are rooted in the United States Constitution, the Maryland Declaration of Rights, the Maryland Rules of Professional Conduct and the ABA’s Guidelines for Prosecutors. As stated earlier, these concerns are deep, are real and are imminent. They require dismissal of these cases, with the ability of an independent prosecutor to re-evaluate the charging decisions, or, in the least, a recusal of Mrs. Mosby’s office. (emphasis added)

Anticipated: Mosby Exits Stage Left In 3, 2, 1 . . .

Whatever one may think of Angela Corey’s professional and personal conduct in the trial of George Zimmerman (and I don’t think much of either), she stayed on that sinking prosecutorial ship all the way to the bitter end.

Here it would seem that Marilyn Mosby is being presented with a perfect opportunity to shove the women and kids aside, grab a personal life boat, and skedaddle off what increasingly appears to be little more than a disastrous series of poor judgments, crass political ambition, and wrongful prosecution before the whole house of cards comes tumbling down upon her.

Nothing about the prosecution of these six officers has screamed of exceptional intelligence and sound decision-making, but I suppose there’s always hope.

As promised, here’s the motion for recusal in its entirety (exhibits included):

–-Andrew, @LawSelfDefense


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Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog (autographed copies available) and Amazon.com (paperback and Kindle). He also holds Law of Self Defense Seminars around the country, and provides free online self-defense law video lectures at the Law of Self Defense Institute and podcasts through iTunes, Stitcher, and elsewhere.

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Comments

ugottabekiddinme | May 9, 2015 at 12:21 pm

Nothing warms the heart so well as an aggressive defense to right an obvious injustice. Thanks for posting this; it restores a bit of hope regarding this dreadful situation, aka travesty.

Well.

It appears that Miss Marilyn is damned if she do, and damneder if she don’t.

One thing Andrew didn’t mention is the unique nature of this filing, on a number of levels. ONE is having six trial attorneys all join in ANY damn thing, egos being what they have to be among trial attorneys.

And they are facially right in everything the said. By which I don’t mean to suggest there is no way to counter what they said. But none of it was without a very solid basis in law and in fact.

    Not A Member of Any Organized Political in reply to Ragspierre. | May 9, 2015 at 1:58 pm

    Remove all those “damned” malignant narcissist Democrat lawyers!

    Snark!

Why am I not surprised Andrew,that you choose to attack Black Maryland prosecutor Marilyn Mosby for seeking justice for Freddy Gray. Of course,you offered no such attack on White Maryland prosecutor Anne Colt Leitess when she sought justice for Joseph Harvey. Alan Dershowitz is equally engaging in hypocrisy. Alan also is selective in attacking a Maryland prosecutor who seeks justice for a Black victim who died at police hands,yet was silent on a Maryland prosecutor who seeks justice for a White victim who died at police hands . Even though the white person was much more dangerous to society ,than the black person.

    Ragspierre in reply to m1. | May 9, 2015 at 12:45 pm

    Why is NOBODY surprised that you…again…are THE one who makes this about race, instead of law and facts?

    You’re such a dope, you can’t even keep straight the fact that the killer in the road rage case was a civilian in Maryland, not a policeman acting in his role.

    Typical of Collectivists, you just look at color, and call others “ray-cis”.

      Not A Member of Any Organized Political in reply to Ragspierre. | May 9, 2015 at 1:59 pm

      “Please Do Not Feed the Trolls.”

      It just makes them crap and Fluke/Flop about more!

      LOL

    Phillep Harding in reply to m1. | May 9, 2015 at 1:57 pm

    You want attention? Here is all the attention you deserve:

    Run along, child. Adults are talking about adult stuff.

    TB in reply to m1. | May 9, 2015 at 2:12 pm

    That’s an interesting perception. You got my attention right at “choose to attack” and the rest of your comment followed that theme.

    Nowhere in the comment did I see you dispute whether or not the points Mr. Branca reported were facts or not.

    Rather, it would appear that you think by offering his expert legal analysis and bringing these details to our attention, he is “attacking”.

    Interesting perception. I’m curious. When it rains, do you believe it’s because God is urinating on you out of spite?

      Eskyman in reply to TB. | May 9, 2015 at 4:26 pm

      TB, it’s always The Narrative.

      Facts, reason, logic, common sense- nah, they don’t apply. Get with Modern Times, man!

      JackRussellTerrierist in reply to TB. | May 10, 2015 at 2:49 am

      Yeah, but…..when m1 gets rained on, it IS because God is taking a whiz on him.

      And it happens all the time.

      That’s why he’s always all wet.

    MouseTheLuckyDog in reply to m1. | May 9, 2015 at 5:51 pm

    Well it’s irrelevant for me, since I sided with Walker, but IIRC Leitess is an employee. If her boss tells her to file she files, Mosby OTOH is an elected official who is her own boss, She’s the one taking responsibility for filing.

    Remember Mike Nifong? (I forget, what color was he?)

      JackRussellTerrierist in reply to Redneck Law. | May 10, 2015 at 3:04 am

      Mikey is white, but the hooker dance artiste, now serving a prison term for murder, is black.

      BTW, I think Mikey got nailed on the same violations now posed in this motion against Ms. Affirmative Action “No justice, no peace” Mosby.

TX-rifraph | May 9, 2015 at 1:02 pm

Is Mosby an example of the Dunning–Kruger effect? (a cognitive bias wherein unskilled individuals suffer from illusory superiority, mistakenly assessing their ability to be much higher than is accurate. This bias is attributed to a metacognitive inability of the unskilled to recognize their ineptitude.)

http://en.wikipedia.org/wiki/Dunning%E2%80%93Kruger_effect

The more I learn about this, the more stunning I find her behavior.

I really appreciate the obviously skilled analysis provided by Andrew and the other attorneys here.

    Not A Member of Any Organized Political in reply to TX-rifraph. | May 9, 2015 at 2:00 pm

    Dunning–Kruger effect? AKA pompous Democrat As……s…..?

    Not A Member of Any Organized Political in reply to TX-rifraph. | May 9, 2015 at 2:03 pm

    RE: “This bias is attributed to a metacognitive inability of the unskilled to recognize their ineptitude.”

    Well if they are inept it would help explain folks doing that. In fact isn’t that just like Obama, Reid, Pelosi, Biden, etc..?

    But it is still no excuse for letting them run around doing evil.

Excellent analysis.

Bravo!

We need a betting pool. Here’s the box I want:

Of course she is not going to get out while the getting is good but is going to double down, again and again. That evidence she is refusing to turn over to the defendants, the knife? It will disappear like Lois Lerner’s and Hillary Clinton’s email!

With each mounting criticism she will accuse the critics of anti-black racism and the legal peril she has put herself in by proceeding on the basis of her own investigation and stripping herself of official immunity will make it all very personal. By the time she is facing imminent and extreme personal ruin she will be unabashedly inciting the rioters to riot over the “racist injustices” that are being visited upon her.

She tried to stand up for their “no justice no peace” call and the racist white system attacked her for it, so now there must REALLY be no peace. “Burn it down, burn it ALL down!” Then she’ll run away and join ISIS.

Thank you Obama voters!

    Bruce Hayden in reply to AlecRawls. | May 9, 2015 at 4:35 pm

    I may be a bit naive, but I don’t think that she dares having the knife go missing at this point. At least one defendant has formally requested access to it, and it is apparently in the custody of her office. The missing knife would be center of any case that she decides to prosecute, any civil cases filed against her, and in her disciplinary hearing with the MD bar.

      MouseTheLuckyDog in reply to Bruce Hayden. | May 9, 2015 at 5:23 pm

      If the knife goes missing, then all the charges related to the knife “being unlawful” go away. Unless the they produce something that they says is the knife, and it’s more like a pen knife.

      It does bring up something: whatever happened to the argument that cops had PC to arrest even if the knife was lawful?

      I would hate to see that argument vanish because the knife was indeed lawful.

      Also

        Char Char Binks in reply to MouseTheLuckyDog. | May 9, 2015 at 6:57 pm

        That argument never went away; the defendants are attacking MOSBY’S ARGUMENT that a Maryland-legal knife means no PC and therefore false arrest. The knife seems to have been illegal under Balt. and MD law, and it was possibly illegal for Freddie the Felon to have a weapon anyway, and the arrest was lawful regardless, as probable cause only needs a reasonable suspicion, not anything close to an absolute certainty.

          JackRussellTerrierist in reply to Char Char Binks. | May 10, 2015 at 3:38 am

          No. Reasonable suspicion is only required for the stop. The arrest requires probable cause, the operative word being “probable.”

          Char Char Binks in reply to Char Char Binks. | May 10, 2015 at 5:02 pm

          Terrierist, you are right. I mixed up the reasonable suspicion for the stop-and-frisk and the probable cause for the arrest.

        Bruce Hayden in reply to MouseTheLuckyDog. | May 9, 2015 at 8:29 pm

        Producing another knife isn’t going to work either. The chain of custody would be investigated and challenged. Each officer involved would testify that that wasn’t the knife. The panel of senior officers who looked at it would testify the same. And, any investigators who testified that it was the right knife would be impeached for working for Mosby. That isn’t going to provide proof beyond a reasonable doubt that the cops illegally arrested Gray. But, it might get her grieved to the bar.

        Ragspierre in reply to MouseTheLuckyDog. | May 9, 2015 at 8:50 pm

        Yeeeeup. Like I said last week…

        the knife never comes into evidence if it NOT THE knife or it’s been tampered with.

        The predicate for the exhibit REQUIRES that the arresting officers identify it as THE knife they took from ol’ dead Fred. If they say, “Nope”, it’s gone. Just another anonymous knife, with no evidentiary value.

        Then what…???

          MouseTheLuckyDog in reply to Ragspierre. | May 9, 2015 at 10:03 pm

          The prosecution will argue that whether or not it is the knife is a fact for the jury to decide from the evidence presented. As I said below, this particular motion is not meant to be won, but to smoke out judges who are stupid or biased enough to agree with that argument.

          Ragspierre in reply to Ragspierre. | May 9, 2015 at 10:12 pm

          No, mouse. It IS NOT a question for the jury. The admissibility of any evidence to go before the jury is a matter of law, under the Rules Of Evidence.

          Just like hearsay is not something decided by a jury. The rules say what is and is not hearsay, and a judge rules on any objection.

          The predicate to even show a “thing” to the jury as EVIDENCE (which is ALLLLLL they can consider) has to be laid, and the proffer of that thing made to the Court for its ruling. If admitted ONLY THEN can the jury be shown the “thing” and consider it as evidence.

          MouseTheLuckyDog in reply to Ragspierre. | May 9, 2015 at 11:12 pm

          @Rags
          I did not say that I believed it was a question for the jury. I said that the prosecution would argue that. I also forgot to say that the prosecution would “produce” witnesses that suggest it is the knife.

          For example the evidence clerk ( or whatever they call the person )will testify that officer X handed them the knife and said that is the knife that Grey had on him. Or something like that. They would have competing witnesses then.

          The prosecution will then argue that it is a fact for the jury to decide. I think it will be a hard sell to most judges, but to some like for example Lucy Koh or “Little Debbie”, they might bite.

          My suspicion is that this motionis being used to filter out those judges.

          Ragspierre in reply to Ragspierre. | May 10, 2015 at 12:05 am

          No. You simply don’t understand evidence. You’re just wrong.

          MouseTheLuckyDog in reply to Ragspierre. | May 10, 2015 at 4:45 am

          No. You simply don’t understand evidence. You’re just wrong.
          I will agree that there is much that I do not understand about law, but in this case I am clear about what is happening.

          let us look at a similar hypothetical. A dirty cop ( just one ) decides to harass a guy by arresting him for the night. He searches the guy and finds a knife. The knife is legal, but just barely. Let’s say it’s an inch too short to be illegal. He drives the guy in himself hands him over and logs the knife into evidence.

          The DA realizes that the arrest is bogus, and he is just fed up with this guy. He doesn’t just want to get this guy fired, which is what most likely will happen, because the cop will just get a job elsewhere and he wants to prevent that. So he tries him for unlawful arrest.

          Now comes trial time. The DA calls the clerk of the evidence room, who terstifies that this is the knife that the cop logged.

          By your account this is insufficient to get the knife admitted as evidence. So how does the DA get the knife admitted?

          Ragspierre in reply to Ragspierre. | May 10, 2015 at 10:55 am

          She calls the arrestee, who identifies THE knife as his, and the one taken from him by the officer.

          You DO see the problem in this case, right?

          But here, the knife is likely never an issue at trial, having been suppressed pre-trial for the reasons we’ve discussed.

          Bruce Hayden in reply to Ragspierre. | May 10, 2015 at 3:01 pm

          I agree with Rags here. The wrong knife doesn’t get admitted into evidence.

          Mouse has suggested that the evidence clerk might lie and say that it was the right knife. But, I think that is unlikely in this case – since police officers are on trial. They just aren’t going to lie in order to find other officers guilty in this case. You can envision the prosecutor’s investigators testifying contrary to the police officers. But, as I suggested above, they can also be impeached by the fact that they apparently report to Mosby. But, there are likely going to be a larger number of police, including the evidence clerks, testifying that this wasn’t the real knife.

          So, what it very likely might come down to (with the substituted knife) is Mosby’s investigator testifying that this other knife is the one that they got from the evidence clerk, but the evidence clerk denying it. And, the chain of custody is broken. No way at that point going all the way back to the arresting officers. And, of course, they need the chain of custody to provide the foundation for admitting the knife. Remember, you can only testify to what you have personally seen, and likely the only people who saw the knife on Gray are the officers on trial.

    JackRussellTerrierist in reply to AlecRawls. | May 10, 2015 at 3:32 am

    I think all or most of the masters of the black anger folks know this dog ain’t gonna hunt, but they want the plantation to think it will so the disappointment and resulting violence are much more severe than they would be had Mosby spoken the truth at the outset and not manipulated the case and her constituency (which she thinks is almost all black Americans).

    When these charges are dropped, there will be blacks rioting large across the country. So be it.

This seems to be a clear case of attempting to judge honest, hard working, dedicated minority public servants by laws and concepts created by dead white men, or others operating under the enduring yoke of white privilege.

    healthguyfsu in reply to Rick. | May 9, 2015 at 10:08 pm

    Careful…lay on the sarcasm that thick and you’ll come off as a “rational liberal” (Don’t you just love oxymorons)

    Annnnd downvote was total accident for reply button, sorry.

mwsomerset | May 9, 2015 at 1:47 pm

Andrew…I love reading your analysis…hope this case never comes to trial but if it does looking forward to your play by play on it. One small typo noticed…under Mosby’s Husband Represents District….3rd quote…broughy…(brought).

Look at the picture. Marilyn Mosby’s expression is difficult to describe, but righteous superiority might fit. There is no problem, however, in recognizing the mood of the two men and two women standing behind her. They are not happy. I wonder which one of them will be first to write a book.

    Rick in reply to Icepilot. | May 9, 2015 at 2:32 pm

    The look of vainglorious self-righteousness.

    Elliott in reply to Icepilot. | May 9, 2015 at 3:00 pm

    Is that her husband standing in the background out of focus? A blog post by a fired employee stated that her husband hung out all day and gave orders to the employees as well as dictated personnel decisions. He is neither an attorney (bio says he is a trained electrical engineer) nor an employee. Should city council members be involved in the prosecutor’s office? While not specifically mentioned in the motion it is suggested that his political, financial and personal influence is unethical to say the least. Is she just his stooge?

    DaveGinOly in reply to Icepilot. | May 9, 2015 at 4:18 pm

    I can think of two other public figures who regularly and famously present(ed) similar expressions – Benito Mussolini and Barack Obama.

      Not A Member of Any Organized Political in reply to DaveGinOly. | May 9, 2015 at 6:48 pm

      My thoughts exactly………

      “There goes another one with their end in the air…..”

    wyntre in reply to Icepilot. | May 9, 2015 at 6:01 pm

    If Sasquatch had another daughter . . .

      Not A Member of Any Organized Political in reply to wyntre. | May 9, 2015 at 6:47 pm

      If Sasquatch and Obama had a son….

      Oh never mind….

      I see they already did…….

If left to her own devices Marilyn Mosby with double down. She epitomizes everything a litigator should not be: churlish, ill prepared, impulsive and venal.

If Mosby does voluntarily step aside it will be from the quiet intervention of wiser people, not her own sound judgment.

    Gremlin1974 in reply to sequester. | May 10, 2015 at 12:35 am

    “it will be from the quiet intervention of wiser people, not her own sound judgment.”

    You have seen the Mayor right?

Question: If she bails out voluntary-like, does this make her more vulnerable to a civil suit later? Or would she have a better civil case if she sticks to this criminal accusation like a burr, and fights tooth and nail against any attempts to remove her? (i.e. the Hillary defense)

    Ragspierre in reply to georgfelis. | May 9, 2015 at 3:39 pm

    Well, coupla thangs…

    1. I’ve read somewhere that there are some civil actions that have been filed already.

    2. When you file a civil action, you either have one or you don’t. Meaning, you can file any action for which you anticipate the elements will exist. The HAVE to exist at the time, or the court cannot exert jurisdiction. No justiciable interest means no authority to act. So, she’s as vulnerable right now as she’s apt to be (barring further intercourse with the familiar canine).

    3. IF there is already a civil cause(s) of action, and a loss of immunity, that’s where the referenced conflict of interest comes in. She’d be motivated to act outside her office in the criminal matter to help her in the civil ones.

      Ragspierre in reply to Ragspierre. | May 9, 2015 at 3:41 pm

      Rare editing of a Rags comment (most of the time, I just don’t bother)…

      “…you canNOT file any action for which you anticipate the elements will exist”.

      MouseTheLuckyDog in reply to Ragspierre. | May 9, 2015 at 5:01 pm

      While a prima facia has to exist, isn’t it often the case that some parts get fleshed out after discovery?

      For example, if a company is being sued because a crane operator did something to hurt a nearby pedestrian. The basic facts are there but may be modified in discovery. For example, the employee’s employment record may come out during discovery and it contains reprimands for being drunk ion the job, or a letter surfaces from the crane company that the company received a month after in which they warn that under certain conditions the crane may misbehave.

        Ragspierre in reply to MouseTheLuckyDog. | May 9, 2015 at 5:37 pm

        What you’re alluding to are what we call, “Thank you, Jesus!” developments. And they DO happen.

        But the cause already exists elementally. Does the crane company owe a duty of ordinary care to others? Is the pedestrian one of that class of “others”? Were there damages as a proximate result of something done or not done in violation of the duty?

        But say the crane operator lets the iron-workers hang their welding machines off the whip line at the end of the day to keep thieves from taking them. Then he negligently leaves the house lock on the crane off so that the crane slews around with the evening breeze every evening and the load hangs over your Boxster in the driveway.

        You haven’t a cause of action yet, because there are no damages (in this very simplistic example of the concept).

        If you filed an action for negligence, all you’d lose was your filing fee and service costs. If you had future damages to your Boxster, THEN you could refile with a good cause of action.

        Ragspierre in reply to MouseTheLuckyDog. | May 9, 2015 at 5:48 pm

        Oh, and OF COURSE we file suits against the notion/hope/prayer that we can prove all the elements for the causes we allege, even when we can’t prove them at filing.

        But that always assumes that they HAVE happened, IF they happened.

        If that happens to make sense…

because of her actions we may never get a real accounting of what happened and why.

    DaveGinOly in reply to dmacleo. | May 9, 2015 at 4:21 pm

    There’s still the police investigation, which has taken a back seat because of the shit storm Mosby has stirred up.

MouseTheLuckyDog | May 9, 2015 at 4:31 pm

One thing I though of when she made her announcement, was how Patrick Fitzgerald announced his indictment of Rod Blagoyevich ( as a contrast ).

I thought Fitzgerald’s statement was a fairly good statement and would make a good contrast. While he went into some details of the evidence, and some details into what exactly Blago did, but he did say some negative things about Blago’s selling of a Senate seat.

Presumably there is a federal equivalent of Rule 5.*. So why didn’t Fitzgerald run afoul of it?

MouseTheLuckyDog | May 9, 2015 at 4:34 pm

I don’t see any reference to the civil suit ( which I don’t get from the filing ).

I also don’t see any explanation of why the dog shoot exhibits are there.

    mwsomerset in reply to MouseTheLuckyDog. | May 9, 2015 at 10:53 pm

    Look on page 21…this was a case in which Mr. Murphy was the attorney. Mosby dismissed the case first day in office. It was an example of the special relationship she has with Murphy(Gray family’s attorney) and presents a conflict.

MouseTheLuckyDog | May 9, 2015 at 5:44 pm

An interesting thought: How much of the pretrial actions so far mention too “sniff-out” the judge? In particular for a change of venue motion?”

If there is a case where change of venue is warranted, this is it, but I can see a biased judge not granting and making the choice seem reasonable.

I can see most judges reluctant to grant such a recusal motion, with the attitude “if you want to hang yourself go ahead”, but I think it would be hard to for a judge hearing these arguments not showing any bias he has.

Fiftycaltx | May 9, 2015 at 6:14 pm

In light of existing knowledge, I believe the most important question MZ Mosby can answer is: “When you screw the pooch, do you do it doggie style or cowgirl”?

What’s the deadline for the persecutor to file her response? When is the motion scheduled to be heard?

Ragspierre | May 9, 2015 at 9:29 pm

https://youtu.be/nRd5oucG114

A lil’ bit of statistical perspective on the whole “out of control” cops meme.

I hope the defense attorneys have simultaneously filed a complaint against Mosby with the Maryland bar, because there really is no excuse for her conduct in this case. It is grossly unethical, by any standard, and she should be prosecuted and disciplined for it.

Sammy Finkelman | May 10, 2015 at 10:28 am

The problem with recusing her off the case is that then you get the accusation that she was recused because she was unbiased, so no judge would want to do that too quickly.

In the current political atmosphere that would create the appearance of bias for the police, because a lot of people are not paying attention to the facts.

    Char Char Binks in reply to Sammy Finkelman. | May 10, 2015 at 8:53 pm

    It may be better for the defense to have her on the case for as long as possible before trial, from a public relations standpoint. Given her apparent incompetence, it could bode well for the defense for her to keep the case all the way, although I wouldn’t bet years in prison on a corrupt/inept prosecutor if I were the one on the line.

Mosby enjoys double immunity, first from acting as prosecutor and secondly as a duly elected official. Maybe you could get through 1 but not the other. Its a strange world the defense lives in if they think that will fly. The only way you can get an elected Prosecutor charged with anything, you would need something egregious like Mike Nifong.

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