Once again, Prosecutor Marilyn Mosby seems to be having difficulty grasping fundamentals of the practice of law.

Indeed, she’s now reduced to making exactly the same errors she only recently accused opposing counsel of making.

In this most current instance, Mosby’s motion for a gag order on the Freddie Gray case has been rejected, reports the Baltimore Sun (h/t Conservative Treehouse).

The reason?  She filed her motion in Circuit Court on May 14, but while the matter was still jurisdictionally in the lower District Court.  The matter was not moved into Circuit Court until May 21, a week later.

Ironically, in Mosby’s motion opposing defense counsel’s efforts to have her recuse herself from the case the Prosecutor argued that it was improper of the defense to make that argument in District Court, where the matter then rested, knowing as they did that the case would end up in District Circuit Court.

Curiously, a Mosby spokeswoman refuses to say whether the Prosecutor intends to re-file the motion in District Court, stating,”We’re not going to litigate this case in the media and discuss our trial strategy.”

The notion that prosecutors would need to conceal their “trial strategy” is rather bizarre. Criminal defendants are charged with specific crimes. Those criminal charges have specific elements.  Each and every one of those elements must be proven to the satisfaction of the jury beyond a reasonable doubt, and ever the relevant legal defenses must be disproven by the State.

That’s it. That is the State’s trial strategy. That’s how the State gets a conviction. Indeed, that’s the only way.

In addition, the State must share with the defense all incriminating and exculpatory evidence their investigation unearths, well before the trial itself through the discovery process.  All of it.

Sure, tactical decisions remain to be made–sequencing the presentation of evidence, and so forth, but the strategy itself is defined by the very structure of criminal due process.

Really, I suppose, it’s not very surprising, as Mosby had essentially zero criminal law experience prior to being elected a State’s Attorney, and doesn’t appear to have learned all that much since assuming that position.

As anyone who studied criminal law in law school (all of us lawyers, I imagine) can tell you, it’s a rather dense field of law, and not well-suited to learning on the job with justice on the line.

Keep your eyes here for more fun criminal law hijinks from the office of Prosecutor Marilyn Mosby.

–-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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