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)


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)


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 (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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