I have been rather amused the last 48 hours or so watching the Progressive news media (but I repeat myself) in the aftermath of the hung jury in the “Freddie Gray” trial of Baltimore Police Officer William Porter.

The media’s efforts to avoid acknowledging what an unmitigated disaster this outcome was for much-heralded State’s Attorney Marilyn Mosby brings to mind the combat scene between King Arthur and the Black Knight in “Monty Python and the Holy Grail.” Even as King Arthur cleaves off the Black Knight’s limbs in succession, the Black Knight adamantly insists “its only a flesh wound!”

Before we get to why this was such a disaster for Mosby, however, it is worth a moment to bask in the schadenfreude of those seeking to defend Ms. Mosby in the aftermath of this Hindenberg-like conflagration.

Don’t Panic! “Marilyn Mosby’s Still Got This”

One of the more amusing of these efforts is a piece posted on NewsOne.com, which bills itself as “your destination for news and information for and about Blacks in America.” The post is authored by Lynette Holloway, and is structured as a Q-and-A with legal analyst Damario Solomon-Simmons. The posts tone of desperation begins with the headline: “Marilyn Mosby’s Still Got This: A Legal Analyst Defends The Baltimore Prosecutor After Mistrial.”

In fairness, the post’s author does not shy away from the truth, opening her piece with the sentence: “A judge’s declaration of a mistrial for officer William Porter on Wednesday in the death of Freddie Gray dealt a devastating blow to Baltimore prosecutor Marilyn Mosby’s case.”

(emphasis added, just because)

Rather, it is the subject of her Q-and-A that brings the chuckles to this post.

The first brow-raiser was, I’m sure, an unintentional one. In noting that Porter, like all criminal defendants, cannot be subject to self-incrimination, legal analyst Solomon-Simmons apparently feels it necessary to explain in elementary school language what this means:

“But because of the 5th Amendment, Porter cannot be forced to incriminate (tell on) himself.”

(emphasis added)

Apparently Solomon-Simmons doesn’t think much the intelligence of his anticipated audience.

More substantively, asked if perhaps “Marilyn Mosby made a rookie mistake of overcharging the officers and pushing the case too soon,” Solomon-Simmons provides a laugh-out-loud worthy response.

He starts:

“It is impossible to know if Mosby moved too fast in bringing this case.”

OK, fair enough, I suppose reasonable people can disagree on that point (I know, just play along). And at least Solomon-Simmons is acknowledging that it’s a reasonable possibility that “Mosby made a rookie mistake of overcharging the officers and pushing the case too soon.” Maybe, maybe not, it’s just impossible to know.

It’s what Solomon-Simmons says in the next sentence that’s the howler:

“However, it is obvious that Mosby is an extremely bold, intelligent, and savvy legal professional focused on doing what she believes is best for her constituents.”

Wait, what? Solomon-Simmons acknowledges that Mosby may have overcharged the officers and pushed the case too soon, yet at the same time believes her to be “an extremely bold, intelligent, and savvy legal professional.” How’s that work, exactly?

Solomon-Simmons goes on to say:

“So, I’m positive that [Mosby] would not have moved forward with trial if she didn’t think she had everything she needed to secure a conviction.”

Oofah. Now that we’ve all had an opportunity to see the State’s case in an actual trial, no reasonable person could believe that a professional prosecutor would have believed they “had everything needed to secure a conviction.” They arguably didn’t have everything they needed to bring criminal charges in the first place, much less unanimously convince 12 jurors of guilt beyond a reasonable doubt.

Either Solomon-Simmons is a “legal analyst” incapable of recognizing this paucity of evidence, or he’s acknowledging that Mosby herself is incapable of recognizing this paucity of evidence.  Talk about damning with faint praise.

Prosecutor Mosby’s Very Bad, Terrible, No Good Trial Outcome

Bottom line, however, even Solomon-Simmons has to acknowledge the catastrophe that this trial outcome is for Mosby. With three possible outcomes, Mosby managed to achieve the one that was by far the worst for her aspirations.

Best for her, of course, would have been a guilty verdict. In that event she would have claimed a clear win for “justice.”  As important for her next trials, she could have compelled Porter to testify in the trials of the other five officers, as he would no longer be under legal jeopardy and thus no longer could avail himself of his 5th Amendment right to not incriminate himself.

Even better with a guilty verdict, because Mosby would have influence over Porter’s prison sentence she would have an enormous stick with which to guide his testimony. Porter would understand implicitly that testimony facilitating Mosby’s later prosecutions would tend towards a lighter sentence and testimony frustrating those efforts would tend towards a heavier sentence.

Alas, a guilty verdict was not to be.

Almost as good, however, would have been a verdict of not guilty. True, it would look like she’d “lost” the case, as indeed she would have. Nevertheless, she could at least say she’d tried.

More to the point, even a verdict of not guilty would have enabled Mosby to compel Porter to testify against the other five officers, for the same reason that he would no longer himself be under legal jeopardy. True, she wouldn’t have the big stick of influence over his prison sentence to “guide” his testimony, but he’d nevertheless be testifying under oath and subject to prosecution for perjury if he should provably dissemble.

But Mosby was unable to achieve even that much less favorable outcome. She did worse. Much worse. She ended up with a mistrial.

Because of this mistrial, Porter is subject to being retried, and all indications to date are that the State fully intends to try him again.

As a result, Porter remains under legal jeopardy, and therefore remains entitled to the protections offered by the 5th Amendment against self-incrimination. He thus can not be compelled to testify against the other officers in their own trials—at least, not until his own case is fully adjudicated.

The very reason that Mosby chose Porter to stand trial first is because she considered his testimony to be essential to her prospects of getting a conviction of the van driver, Officer Caesar Goodson, who among the six charged officers is the only one to have actually been charged with murder. Indeed, it is Goodson who is scheduled to be tried next, and Porter was planned as a material witness in that case.

Without Porter’s testimony Mosby’s murder case against Goodson becomes, almost unimaginably, even more laughable.

Mosby does have several options available to her. First, she can seek to delay the trial of Goodson (and, presumably, the other officers) until she’s had the opportunity to re-try Porter. Having now seen her case against Porter, however, it seems a long shot indeed that a unanimous jury would find him guilty of these criminal charges even on re-trial. (That said, “juries be crazy,” so one never knows what might happen.)

Alternatively, she could offer Porter immunity from prosecution. Such immunity would remove Porter’s legal jeopardy, and thus put him in a position in which he could be compelled to testify. Offering immunity, however, to a man that her prosecutors only days ago were characterizing as a lying and malicious killer would seem, uh, awkward. (Incidentally, Mosby’s prosecutors arguing in the first trial that Porter is a liar can hardly have improved his utility for them as a State’s witness in later trials. Also awkward.)

But, hey, according to legal analyst Solomon-Simmons “Mosby is an extremely bold, intelligent, and savvy legal professional” who “would not have moved forward with trial if she didn’t think she had everything she needed to secure a conviction.” And according to the NewsOne.com headline writers “Mosby’s Still Got This.”

Perhaps. But I’d want long odds.

Even The New York Times Can’t Put a Shine This One

Incidentally, it’s not just obscure “news” sources such as NewsOne.com struggling with how to cast Mosby’s disaster in a favorable light. Even that dying newspaper The New York Times finds itself having to ask questions awkward to the “Mosby is Awesome” narrative:

Did it mean that Ms. Mosby had overreached — as her critics have said — in an overzealous rush to prosecute? Did it mean that she had succeeded, against all expectations, in convincing at least some jurors that Officer Porter — who was not even involved in Mr. Gray’s arrest — was guilty of manslaughter, as she had charged? Or did it simply mean 12 people could not agree?

“It was a weak enough case that they didn’t win,” said Geoff Alpert, a professor of criminology and expert on police use of force at the University of South Carolina. “You can call it a mistrial, but the prosecution lost.”

If only someone had pointed this out early on.

–-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 blogging, books, live seminars & online training (both accredited for CLE), public speaking engagements, and individualized legal consultation.
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