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Freddie Gray Case: Court Rejects Prosecutor’s Gag Order

Freddie Gray Case: Court Rejects Prosecutor’s Gag Order

Because of jurisdictional defects.

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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Comments

Very entertaining, somewhat sad to say.

“…interval” – do you mean “interim” ?

Not A Member of Any Organized Political | June 9, 2015 at 11:37 am

GASP! How can that be for a Democrat?????

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

    Judges like to side-step a political hot potato by ruling without ruling. Hopefully Mosby can take the hint.

      Estragon in reply to MattMusson. | June 10, 2015 at 12:31 am

      Heh. She seems more the type to respond with “A HINT? You want me to take a hint? You DID NOT go there! You handing out hints to the poor black folk now, cracker? You don’t know me. I don’t need your damn white-ass hints. I’ll take a hint when I damn well want to take a hint. Talk to the hand, ’cause the head ain’t listenin’.”

healthguyfsu | June 9, 2015 at 11:42 am

The gag order was not her idea…I doubt she has an original thought in her head regarding trial strategy.

The gag order makes perfect sense from a Sharpton-esque tactical perspective though if learning from Zimmerman and Brown. In both cases, trial proceedings were very public. If the hustlers win, they can claim justice without scrutiny. If they lose, they can rile up their irrational followers into believe that the whole thing happened behind closed doors to cover up an injustice. Nevermind they requested the secrecy…they aren’t accountable for their actions.

    About three weeks before Freddie Gray was chased from a West Baltimore corner by three Baltimore police officers — the start of a fatal encounter — the office of prosecutor Marilyn Mosby asked police to target the intersection with “enhanced” drug enforcement efforts, court documents show.

    “State’s Attorney Mosby asked me to look into community concerns regarding drug dealing in the area of North Ave and Mount St,” Joshua Rosenblatt, division chief of Mosby’s Crime Strategies Unit, wrote in a March 17 email to a Western District police commander.

    http://www.baltimoresun.com/news/maryland/crime/blog/bs-md-ci-mosby-email-20150609-story.html#page=1

Henry Hawkins | June 9, 2015 at 11:51 am

F**k the law. THIS IS ABOUT JUSTICE!

    Exactly, Henry. As Andrew writes:

    “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.”

    Well, Andrew would be correct if the State’s sole goal is to obtain a conviction, rather than engage in a show trial to soothe the savages among them.

      Folly in reply to Redneck Law. | June 9, 2015 at 11:29 pm

      We don’t generally sit around and wait to start a civil war. We’re usually at work. Thanks for the stereotype.

      M. Mosby has been watching too much Perry Mason

      Milhouse in reply to Redneck Law. | June 10, 2015 at 9:37 am

      The object is not to soothe the savages. The object is to maintain and magnify their rage till November 2016. To this end, the strategy is to build up their expectations and then disappoint them with an acquittal, preferably next spring or early summer.

It appears she learned most of her lawyering from watching television and old movies. Would she do any better in traffic court? Did most of her experience come from being eighth junior assistant co-council in charge of photocopying? Her senior prosecutors appear to be dummies too or she won’t listen to them.

MouseTheLuckyDog | June 9, 2015 at 12:04 pm

I have a nit to pick. You don’t really learn criminal law in law school. You do learn the book partsm but you are supposed to learn by going to court and watching proceedings. THhn by interning, acting as a paralegal etc and acting as junior counsel. ( Is junior counsel the technically correct turn? )

Either that or watching “My Cousin Vinnie”.

BrokeGopher | June 9, 2015 at 12:06 pm

I’m no court watcher, but I’d hazard a guess that their trial strategy is: 1) get an all-black jury 2) tell them they should vote guilty because racism.

    Twanger in reply to BrokeGopher. | June 9, 2015 at 4:29 pm

    Yes, except that half the charged officers are not white.
    Just sux to be them, I guess. Collateral damage.

    Milhouse in reply to BrokeGopher. | June 10, 2015 at 9:39 am

    On the contrary, the trial strategy is to get as white a jury as possible, so that the inevitable acquittal can be spun as racism. The object is November 2016.

Are we sure Max Sennet wasn’t reincarnated as Marilyn Mosby?? This case is beginning to resemble a Keystone Kops movie.

If Mosby was wearing a bikini, she would look like one of those girls who crashed the pool party.

Prof. Barondes | June 9, 2015 at 12:16 pm

From the perspective of one who teaches in areas other than criminal procedure, the unqualified reference to “incriminating” in the below quotation (emphasis removed) from the main post seems noteworthy and of interest:

“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.”

    Valerie in reply to Prof. Barondes. | June 9, 2015 at 12:39 pm

    It’s true. Trial-by-ambush is usually only allowed in State civil cases, and even then, counsel can request a continuance.

      Milhouse in reply to Valerie. | June 10, 2015 at 9:42 am

      Which plays into Mosby’s strategy, which is to delay the acquittal as long as she can. It’s 17 months to the next election.

    amwick in reply to Prof. Barondes. | June 9, 2015 at 2:46 pm

    well before the trial itself This seems vague to me. At what point does it become a requirement? When/if they are indicted? Seems that there should be some rule here.

      platypus in reply to amwick. | June 9, 2015 at 8:31 pm

      Each state has criminal procedure rules. It’s in those rules which are peculiar to each jurisdiction.

MouseTheLuckyDog | June 9, 2015 at 12:32 pm

Any comments on the Judge splitting the difference in request for more time?

She just screws up basic legal procedures over and over. She must be the result of affirmative action in education and her appointment/election to her position. She is even more incompetent then Tyrant Obama the Liar and Queen Hillary the Incompetent.

Doesn’t she have some career professionals in her office to handle this kind of thing? Or did they all want nothing to do with this case?

So Mosby is acting in a similar way to Angela Corey in withholding exculpatory evidence in the Zimmerman case?

SHOCKING!!!!!!!

MouseTheLuckyDog | June 9, 2015 at 1:41 pm

So far I think Mosby has been played as badly as the Bucks against the Bulls in their last playoff game. If that’s a bit to obscure, the Nov 2013 comeback of the Patriots against the Broncos.

I have to wonder what is going through her head. Does she know how stupid this ruling makes her look? ( Considering she accused the defense of the same thing.) Does she realise how badly she is getting “outplayed”?

JackRussellTerrierist | June 9, 2015 at 2:03 pm

Sharpton’s going to give Mosby a bad whipping.

“… 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 Court.”

Should the second “District” be “Circuit”?

I’m not a lawyer, just a dumb old retired cop, but to me the stone faces on every staff member lined up behind Mosby in the pic above scream, “I was dragged here against my will and I intend to let the boss twist in the wind.” “She’ll be gone on the next election cycle anyway.”

Gremlin1974 | June 9, 2015 at 2:43 pm

Everytime I see something about this lady or the prosecution’s case I hear the music from Benny Hill.

it’s a rather dense field of law, and not well-suited to learning on the job with justice on the line

Actually, on the job is exactly how to learn it. Career prosecutors usually start with prosecuting low-level misdemeanors, and once they gain competence at that they are given cases involving more serious crimes. It usually takes awhile before they are handling murder cases. Mosby’s problem (at least one of them anyway) is she skipped these steps.

    Ragspierre in reply to maxmillion. | June 9, 2015 at 3:54 pm

    In my law school, there were various “trial advocacy” classes and clinics you could take that gave you great instruction on courtroom work.

    Some of the instructors (adjuncts almost entirely) were practicing trial lawyers, and some of the best were brutal. All these classes involved both instructions and practice, and all were video-taped with the tapes made available to the students.

    In my observation, a LOT of the prosecutors are very weak trial lawyers. Few graduate from traffic court practice, and that rightfully.

    A really good prosecutor is not a tyrant by any measure. Here’s a tribute to one, offered by another…

    http://patterico.com/2015/06/09/r-i-p-vincent-bugliosi/

      MouseTheLuckyDog in reply to Ragspierre. | June 9, 2015 at 5:10 pm

      I didn’t know Bugliosi died. how sad!

      Estragon in reply to Ragspierre. | June 10, 2015 at 12:44 am

      Bugliosi put away some very bad people. RIP.

      The role of the prosecutor has been bastardized over time, along with much of our system of justice. In theory, while defense counsel is an advocate for the defendant, prosecutors should be seeking only truth and justice. Unfortunately, too many now share a desire to win at any cost instead of justice.

    Sure, criminal law is best learned on the job.

    I don’t think that means you take a person with zero practical criminal law experience, just elected weeks ago to the office of State’s Attorney, and have her lead prosecutions for murder, manslaughter, and numerous other felony charges against police officers in perhaps the highest profile criminal case in Baltimore in recent memory.

    A far more traditional entry to practicing criminal law would be to have her spend a year or two (at least) doing the “can’t lose” cases–possession cases fit this bill nicely, whether drugs or child porn or whatever contraband. If you lose one of THOSE, you’re dumber than the contraband.

    Next, dash-cam filmed DWI cases.

    Etc., etc., etc.

    When I worked at a public defender’s office (a long, long time ago) there was a tremendous variance in the experience and skill of the attorneys. Of perhaps 20 lawyers maybe 2-3 were truly competent to handle a murder trial, and not surprisingly they were among the more experienced lawyers in the office.

    Nobody would have even considered asking any of the others to lead a case of that consequence.

    Observation suggests to me that Mosby is very much in that latter category.

    –Andrew, @LawSelfDefense

      platypus in reply to Andrew Branca. | June 9, 2015 at 8:44 pm

      “If you lose one of THOSE, you’re dumber than the contraband.”

      I almost lost my monitor on that one. However, I learned to cover my mouth when reading certain bloggers. 🙂

    Elliott in reply to maxmillion. | June 9, 2015 at 5:47 pm

    I read that she had worked in this very office in the past. I have never seen how long she was there, if she quit or was fired, etc. But from appearances she didn’t master misdemeanors and got the ole heave ho.

blacksburger | June 9, 2015 at 6:11 pm

As I remember, Nifong tried to get a court order to gag the lacrosse players’ lawyers after he, Nifong, had held many press conferences saying that the players were guilty and that they were racists.

Juba Doobai! | June 9, 2015 at 6:27 pm

Wow, she’s mastered the Obama head tilt while looking down her nose at the peasants. Man, she must be a legal beagle, er, eagle.

The grim looking white-haired guy over Mosby’s right shoulder is Mike Schatzow. He’s a former assistant United States Attorney and organized crime prosecutor. I had cases with him and unless he’s lost a lot of steps since I knew him (it’s been a while but I doubt it), he’s a very good prosecutor. I’m having a hard time figuring out why he’s putting up with this nonsense, though. I’m 100 percent sure Mike’s familiar with Brady v Maryland, which is the seminal case requiring disclosure of exculpatory evidence to the defendant. It’s a Maryland case, after all, and motions for Brady material are so routine the courthouse janitors can write them.

If ever there was a case jam packed with Brady material, this one is it. It’s going to take a semi to deliver all of it. Like every case ever prosecuted by Mosby’s office involving a knife like the one taken from Mr. Gray. Like all of the cases accepted and prosecuted where the defendant took off running when confronted by the police. Like the statements of the other passenger in the transport van who also wasn’t belted in. Brady and the Supremes say none of that can be kept from the defendants. In fact, they should probably already be loading the truck.

    MouseTheLuckyDog in reply to Mongoose. | June 10, 2015 at 8:05 am

    Let me be a bit cynical. If he is aware of the fact I posted below, then he may be expecting to be around and pick up the pieces when the whole thing gets NiFonged.

MouseTheLuckyDog | June 10, 2015 at 7:57 am

Jumping up and down!
Jumping up and down!
Jumping up and down!
Over here over here
Over here over here
Over here over here
I wake up this morning and check the news before I make breakfast:
rather then tell you myself I’ll just point to the Baltimore Sun. http://www.baltimoresun.com/news/maryland/crime/blog/bs-md-ci-mosby-email-20150609-story.html#page=1
Apparently the defense has found a game changing email Mosby sent out
The case doesn’t cvompletely go away but it would seem to change a lot of things.

I don’t see how the email changes much. We already knew it was a high-crime area. All this shows is that Mosby’s office also knew it, and maybe (depending how you read it) that she personally knew it. But she hasn’t denied it, and it’s so easy to prove that there’s no way she was going to deny it, so how does proving that she knew it change anything?

Really it’s not clear what her case is, which is why I agree with buzzsawmonkey that she’s not planning to get a conviction.

Would anyone be able to compare areas of Baltimore before March 20 to determine if the corner indicated was more worthy of extra officers than other areas Could prove conflict if areas other than 🙂 Mr Iran Contraband have much higher drug incidents Hopefully defense lawyers would be on this

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