Freddie Gray: Prosecutor Marilyn Mosby Faces Increasing Criticism
It wasn’t supposed to go this way for State’s Attorney Marilyn Mosby
It wasn’t supposed to be this way for State’s Attorney Marilyn Mosby. When she abruptly brought criminal charges against six Baltimore Police Officers during riots, looting, and arson following the death of community drug dealer Freddie Gray she became an immediate media darling. Profiles in Vogue quickly followed, as well as prominent speaking engagements (some of which she used as platforms for extrajudicial commentary on the pending trials, a serious breach of ethics).
Interestingly, Mosby didn’t call for justice, per se. She called for particular forms of justice. Justice for Freddie Gray. Justice for “the people of Baltimore” and, remarkably, “the protestors across America” (!). She called for justice for “those that are angry, hurt, or have their own experiences of injustice at the hands of police officers.” She wrapped by calling for justice “Last, but certainly not least, to the youth of this City. I will seek justice on your behalf. This is a moment, this is your moment.”
What was notably missing, of course, was any call for justice for the police officers charged. Innocent until proven guilty, these officers are as entitled to justice and impartial due process as is anyone else in America. Indeed, prosecutors are charged with ensuring that defendants receive justice and due process, a charge implemented through such requirements as having to share any uncovered exculpatory evidence with the defendant’s lawyers.
Many of us sensed from the start that the charges against the officers were based on nothing but political hope and change, a sentiment reinforced strongly in my own mind as prosecutors refused to either bring specificity to the charges against the officers or to disclose the evidence behind those charges. Now, after three trials, we are proved correct. The prosecution never had adequate evidence to support those charges against the officers, and indeed may have fabricated much of the remaining tatters of evidence they are waving around today.
This week the four remaining officers facing criminal trials as a result of Freddie Gray’s death–Officer Garrett Miller, Officer William Porter, Sgt. Alicia White, and Lt. Brian Rice–have each again filed nearly identical motions for dismissal of the indictments against them, reports the Baltimore Sun. Previous motions seeking to dismiss the indictments or charges have been rejected by Trial Judge Barry Williams, but these new motions have new, and previously unaddressed, grounds for dismissal. (The two remaining officers, Edward Nero and Caesar Goodson, have already been acquitted of all charges.)
Specifically, the officers’ motions have added the newly disclosed truth that the “parallel investigation” purportedly conducted by the Baltimore Sheriffs Office and used as the basis for the criminal charges against the officers never actually took place.
In addition, they have added the also recent disclosure that the lead investigator of the case for the Baltimore Police Department was not allowed to testify freely before the grand jury, but rather was confined to reciting a narrative prepared for her by prosecutors. Nor was she permitted to answer the grand jury’s numerous questions, which instead fielded by prosecutors.
In addition to their motions for dismissal of the indictments against them, the officers have each filed motions seeking to obtain access to the normally sealed Grand Jury minutes, so that they may investigate additional likely violations of their clients’ due process rights.
Each officer’s motion for dismissal and for Grand Jury minutes is embedded at the bottom of this post.
We also learned in this most recent trial that the medical examiner whose call of homicide was the foundation for the criminal charges against the officers initially believed Gray’s death to have been an accident. This initial assessment was not disclosed by prosecutors to the defense, as required.
These same officers have already, as previously noted here at Legal Insurrection, filed lawsuits against Marilyn Mosby for wrongful arrest and other claims: Freddie Gray: Five of Six Officers Now Suing Prosecutor Marilyn Mosby.
So egregious has been Mosby’s conduct that even the editorial board of the Baltimore Sun, no bastion of conservatism by any stretch of the imagination, has called for Mosby to cease her prosecutions of the remaining officers: Goodson judgment should force Mosby to reconsider charges.
A Maryland State Delegate, Pat McDonough (R) has begun circulating an online petition calling for Mosby’s resignation, reports the Baltimore Sun, which quotes McDonough as stating:
The people of Maryland and specifically Baltimore have had enough of Marilyn Mosby’s political grandstanding. This was a baseless, malicious prosecution from the beginning and she should drop the remaining charges and then resign.
Further, today the excellent Stately McDaniel Manor blog notes that David A. Plymyer, a former assistant state’s attorney for Maryland’s Anne Arundel County, is calling in the Baltimore Sun for an investigation of Mosby’s office, stating:
The disturbing revelation by The Sun this weekend that Baltimore State’s Attorney Marilyn Mosby or one of her prosecutors may have used a misleading summary of evidence to persuade a grand jury to indict the six Baltimore police officers charged in the death of Freddie Gray demands a formal investigation.
Attorney Plymyer’s entire piece is well-worth reading, here: Baltimore prosecutor’s office should be investigated for Gray-related murder charge.
The Stately McDaniel Manor also broke early the news that George Washington University law professor John F. Banzhaf III, previously entirely unassociated with the Freddie Gray cases, has independently filed a complaint against Mosby with the Maryland bar. Banzhaf claims numerous violations by Mosby of provisions of the Maryland Lawyer’s Rules of Professional Conduct, including:
A. to have violated RPC 3.8(a) of the Maryland Lawyer’s Rules of Professional Conduct [RPC] for attorneys which requires that a prosecutor refrain from prosecuting a charge unless it is supported by probable cause, and national standards which establish that a prosecution should proceed only if there is sufficient admissible evidence to support a conviction;
B. to have violated RPC 3.6(b) and RPC 3.8(e) which limit the content of public statements which prosecutors may permissibly make in connection with criminal proceedings;
C. to have violated RPC 3.8(d) by having improperly, illegally, and unconstitutionally withheld and otherwise failed to turn over to defense counsel exculpatory evidence;
D. to, in further violation of RPC 3.8(a), be continuing prosecutions against four of the officers although – especially in the light of detailed findings of fact in two rulings by Judge Barry Williams – there is no longer any basis to reasonably believe that the remaining charges are supported by probable cause, and/or that there is sufficient admissible evidence to support a conviction;
E. to have engaged in conduct which, in its totality, and in light of the above, is inconsistent with the conduct required of attorneys, and especially of public prosecutors, under various ethical standards, including RPC 8.4(c) [“engage in conduct involving dishonesty, fraud, deceit or misrepresentation”] and RPC 8.4(d) [“engage in conduct that is prejudicial to the administration of justice”].
The complete Banzhaf complaint is embedded below.
Mosby now finds herself on the horns of a dilemma. One the one hand, the growing cries against these irrational and politically motivated prosecutions would seem to call for the currently scheduled four trials to be abandoned. On the other hand, doing so could worsen Mosby’s position with respect to the civil suits the officers have brought against her.
Here are the promised embedded documents. First, the new motions from the four remaining officers to be tried for dismissal of the indictments and for access to the Grand Jury minutes:
Officer Garrett Miller
Officer William Porter
Lieutenant Brian Rice
Sergeant Alicia White
Second, the Banzhaf complaint against Mosby:
OK folks, that’s it for today. If you don’t hear from me beforehand, have a wonderful and safe July 4th!
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How else could it have gone for her? When you insist on bringing a frivolous case without any evidence, gambling on lawless juries turning into lynch mobs, you ought to know in advance that it’s more likely to fail than to succeed.
She probably figured that she’d have a black jury and skate the convictions on racial prejudice.
And she also most probably thought the officers would jump at the plea bargain deals she offered and was tee-totally pissed off when everyone told her to what she could do with the deals.
She’s a classic example of stuck on stupid.
The jurors that hung were partly black. You don’t know who voted to acquit.
The TWO prosecutors the judge/jury has seen in these trials are white.
I don’t know it I would be throwing around the term ‘lynch mobs’ without the slightest irony.
BTW, is it frivolous when someone dies of a broken neck in police custody? Were the police acting in a lawful manner or was there just a lack of evidence to prove what was obviously true?
Don’t you just hate it when criminals get off by playing the system?
There is nothing ironic about my use of the term lynch mob. What other term would be more appropriate for the kind of jury Mosby hoped she’d get, that would convict the defendants despite the complete lack of any legal basis to do so?
(And no, I haven’t missed your meaning. I know exactly what you are trying to imply, and you should be ashamed of yourself, but of course you aren’t. Lynching has no racial implications, and I reject any attempt to inject such implications into it. The fashionable idea that black people own the term, or that they were uniquely subject to it, is bullshit.)
No matter how someone dies, or where, prosecuting someone for it with no basis for believing them to be responsible is the very definition of a frivolous prosecution.
The evidence shows that the police — all the police — acted in a completely lawful and proper manner at all times, and none of them did anything even slightly wrong. What the evidence proves is obviously true.
Yes, I do hate it when criminals get off by playing the system, which appears to be what the unlamented Mr Gray was hoping to do.
It’s frivolous to bring charges with no evidence that a crime was committed, no matter who dies.
The first rule of [class] diversity is that you don’t pin the tail on the donkey. Couldn’t Mosby find a white Hispanic to sacrifice?
Yes. Imagine Ambitious Angela’s surprise when she found out “Zimmerman” can be an Hispanic name too.
It isn’t a Hispanic name. George got it from his German father. But you’re right that if his name had been Jorge Mesa none of us would ever have heard of him, or of Martin.
Actually I suspect that even if his name had sounded white but not Jewish we’d never have heard of him. I think the only reason Sharpton turned his case into a cause celebre was that he heard “Zimmerman” and thought “Jooo”. Because where he comes from people with German-sounding names are usually Jews, and he probably didn’t realise that isn’t so in many areas.
You almost didn’t hear of Roderick Scott and Chris Cervini. Wrong lineup. WRTW (With Regard To Which), see outrage over the rape of Katie Rouse (aka “who?”)
I think they just thought they caught the Great White Defendant, Jewish or not. However, I do recall Randi Rhodes (not her real name) on the radio fielding some very anti-semitic calls from Blacks who were convinced that Zimmerman was guilty, and Rhodes, who is Jewish, didn’t challenge them on their bigotry at all. Maybe she didn’t mind anti-Semitism if it was used against a gentile, particularly THAT gentile.
I would suggest that a careful, independent review of all of Moseby’s other prosecutions be conducted, to determine if she railroaded any other defendants (who did not have the benefit if national media exposure).
Sometimes…more often than not…my faith in our legal system get vindicated by events.
Look out, Marilyn…storm is comin’ through, and it’s comin’ right up on you!
John Banzhaf is a professor not at Washington University, which is in St. Louis, but at George Washington University, which is in Washington, D.C.
Is that you, Whittaker?
Disbarment is justice.
Topping it with tar and feathers would be poetic.
But nothing will take away the sour moments that these police officers were put through.
Something must be done so that liberals cannot continue to use prosecution as a punishment.
I trust the follow-up civil suits will help soothe the officers’ feeling, and give future city managers pause where they have idiot prosecutors.
Yeah, I don’t think cops should have so much as a sleepless night after someone dies in their custody. This is the home of the ‘right to life’ movement. Isn’t all life precious? I keep reading that over and over right here.
No, only innocent lives are precious. Freddie Gray was a career criminal, and the world is not a worse place for his accidental death.
And there’s no reason policemen should suffer just because someone happens to be in their lawful custody when he dies, any more than anyone else suffers when someone happens to die in their home or office. If there’s no reason to believe the policemen caused the death, which is the case here, deliberately causing them to pass a sleepless night as some sort of sick revenge is criminal.
By the way, are you our old friend m1?
Feeding the troll is counter productive. No one visiting LE comments gives the snarky hyperbole spewed by the troll any credence at all.
Is this a case of the [justice] chickens coming home to roost? (To paraphrase another SJW)
I also think we should acknowledge the great skill and patience that has been demonstrated by the defense attorneys in these malicious prosecutions. I am not an attorney (my skill set is very limited in this space) but I do not recall any errors made by the defense teams. Quite a contrast to the State’s Attorney team.
A face only a flying paper bag full of feces could love.
(And may it spray onto the louses behind her.)
Of course Nick Mosby, husband of Ms. Mussolini is on the City Council and was gonna run for Mayor, but dropped out in April (would like to have heard those strategy sessions, heh).
From the civil suit point of view, I think continuing to prosecute is more dangerous then dismissing now.
At this point prosecuting would be greater proof of malice, making it even easier to pierce the “sovereignty veil”. Plus it may be increasing the damages.
I’m just wondering if there are any federal charges that can be used against her.
Oh, yeah, that’s gonna happen.
(Although I agree with you that it ought.)
I don’t think that the statute of limitations runs out before next January.
No, but a plea bargain entered some time between Election Day and Inauguration Day is binding on the next administration, isn’t it?
Conspiracy. Probably several different avenues of approach for that. Conspiracy to deprive the accused of their civil rights. Conspiracy to engage in malicious prosecution. Conspiracy to submit false evidence.
Inexperienced minority takes important position with great fanfare and proceeds to run it into the ground with delusional goals and knee-jerk attacks on anybody who criticizes her. After a certain period in office where everybody can see just how out of her league she is in the position, she maintains her original stated goals right up until the end of her term, leaving behind a disaster for somebody competent to clean up.
Hm, where have I seen this played out before… It started about seven years ago, I think.
Wow! What an impressively written complaint. Powerful and compelling. I wish I could write even half (or a tenth, or…) as well. I only saw a few minor errors–mainly spacing and two spelling in the appendix, viz.:
“Because Complainant has no further knowledge nor insight regarding these topics, he simplyrespectfully submits the following documents for the information and convenient of the Committee,not only in further support of allegations previously made, but also confidant that the Committee incarrying out its legal mandate will perform such further investigation as is needed, since these certainlyraise at least a prima facie . . .”
If the Maryland Attorney Grievance Commission is anything close to the Delaware Office of Disciplinary Counsel, Mosby is toast.
As she well should be.
Towards the end of the complaint Banzhaf refers to himself as the “Respondent” whereas he actually is the “Complainant” – the term he uses elsewhere.
Being a prosecutor in Baltimore must be a very cushy job. They didn’t refuse to prosecute a bad case, and instead, threw away all integrity just to keep those jobs.
So, does Baltimore have to wait to vote her out or wait for her to step down or not seek election again?
Or do they have to force some sort of recall election or some other process, such as impeachment, to rid themselves of this clearly biased prosecutor?
Y’all do realize that in Baltimore,prosecuting police fraudulently attracts votes. All she will have to do is claim is was a racist, white conspiracy that ruined the cases [the rules of evidence being the means] and she will be re-elected in a landslide.
To onlyright … I take it you are someone disappointed in the results thus far… Buck up man there will be others … Other cities burnt … More paid mobs … Other chances for race baiters and their elected flying monkeys to ruin good mens lives …. Hit your knees lad and pray who know maybe the dark imp will give you the pound of flesh you so desire … It may even be yours
I would think continuing would worsen her position even more.
“On the other hand, doing so [abandoning the prosecutions] could worsen Mosby’s position with respect to the civil suits the officers have brought against her.”
– I would think continuing would worsen her position even more. –
It is one thing to try a marginal case on its merits even if the prospects are poor. There ARE battles to be fought in losing causes.
Typically one might try a marginal case to show that the prosecution supports the police to encourage them to work together. One does not typically try a marginal case to worsen relationships.
Yet, to continue with a prosecution BECAUSE of possible repercussions to herself is itself very troubling. Continuing actually shows the base of the case WAS NOT on the merits in the first place. This actually compounds her problems.
Indeed, her best interests ARE best served by stopping now. The classic adage applies: The first thing you do when you are in a hole is quit digging.
Mosby twisting slowly, slowly in the wind.
Has the mayor’s office ever released any of the details behind the quick $6.4M settlement last September? As more details come out about the lack of evidence all along, what really was behind the $6.4M?
I suspect that, at this point, the police defendants who have yet to be tried are at least halfway hoping that Mosby continues the persecutions. Barring some unforeseen eventuality, they are almost assured of being acquitted and their civil suit damages exponentially increase.
The discovery sanction that Judge Williams imposed on the state, bringing Det. Taylor into this, was devastating.
And it looks like the gift that will keep on giving, as this moves through what remains of the criminal phase and into the civil phase.
Let’s not forget that with the lawsuits pending the City had no choice but to pay Freddie Gray’s family millions of dollars in a sham settlement. Had the City defended six of it’s finest instead of throwing them under the paddy wagon, the family would have gotten what they deserved – nothing.
What do you mean, it had no choice? It had every choice. It chose to squander this money.
Why do we bother with grand juries if prosecutors are able to rig them as rubber stamps, and why do we have conduct rules for prosecutors if they never result in serious sanctions that effectively deter misconduct throughout the prosecutor community? These Mosby cases will tell us if our prosecuting overlords are just another power center that is too corrupt to admit and remedy its extensive misconduct.
Remedy #1 should be that prosecutors can’t seek election to legislative or executive offices — and thus remove many of the incentives for Mosby-like misconduct. But I’m not holding my breath.
My guess is that the judge will deny the new motions, and the Maryland Bar will announce that there is insufficient evidence to conclude there was prosecutor misconduct. Justice tends to be a land of OZ that won’t confirm or deny any reports on what goes on behind the curtain. It will probably conclude that the least embarrassing course is to turtle up and wait for the storm to pass.
We need to give up the cynical bullshit about “ham sandwiches” and grand juries, for one thing.
It took the Travis County prosecutors several grand juries before they could get an indictment of Tom DeLay, and then they had to cheat.
The processESSSSSS we have tend to work as intended, and they’re the best we know about anywhere. You have to compare something with something, as Milton Friedman used to say.
Rags’ comment at 11:18 is a point well taken. The judge is restoring some coherent justice to cases that Mosby pushed way beyond ethical bounds. But now Rags wants to reassure us that the system still works because, even though Tom Delay’s career was ended upon being indicted and then convicted in Travis County for fundraising conduct that was both common and NOT criminal, an appellate court finally got it right. Yet the prosecutors who rigged it wrong faced no consequences. Maybe Rags can counsel Wisconsin’s John Doe Investigation victims and reassure them that overreaching prosecutions do not stop the system from working.
I’d be happy to, as would many hundreds/thousands of my fellow attorneys, which crushes your apparent point about the system failing in Wish-con-sin. It hasn’t. Not yet.
And, of course, it DOES sometimes fail in the individual sense at times. Still, it DOES work in the aggregate.
What’s your better alternative?
The immediate alternative is to move on to discourse with those who root their intelligence in dignity and mutual respect. Good luck with those insecurities that compel both the last word and the last insult. And thanks for those anxious concerns over my possibly being crushed by my fellow members of the bar. I’ve circulated among them for several decades without injury.
My son served on a county grand jury. County prosecutor’s rate of indictments went down. Conviction percentage went up. He and another person empaneled had a clue as to what the grand jury function is supposed to be. They made the prosecutor do his job.
It seems to me that Miller’s request for a Kastigar hearing will require the state to account for source of evidence intended to be used under oath and on the record — including the evidence that existed before Miller’s compelled testimony to ensure no derivative evidence or strategy was gained.
It would be helpful (for me at least) to have the LI team chime in if this seems relevant.
This is what happens when you give law degrees and bar admissions to social justice warriors. Given the revelations so misconduct by members of the District Attorneys office so far, an ethical District Attorney would ask that his or her offer be recused from further participation in the case.
Rags’ view of working in the aggregate might be correct, if you ignore the proposition that the process is the punishment. Example would be the USA in Idaho appearing to threaten federal prosecution for spreading false information. Sure, you could win in court, and your attorney could take a high-end Viking River Cruise afterwards. And everybody knows it.
Same thing with the John Doe victims.
And why isn’t withholding exculpatory evidence a FREAKING CRIME?
Nonsense! Any LEO has to expect…are trained to expect…they will be held to legal consequences for their conduct on duty. They even carry insurance and make organizational provisions against that likelihood.
Nobody in Idaho has spent a dime on legal fees thus far, and none likely will.
The whole mess in Wish-con-sin is still largely in the air, and a lot of the legal services rendered were pro bono or on contingency, IIRC.
But I’m not “ignoring” any damn thing. Sometimes, as always in our history, our processes wrongfully chew someone up. Duh.
Again, what are you suggesting as a replacement?
How about replaing prosecutors’ and judges’ absolute immunity with the qualified immunity that cops have, so that they too “expect…are trained to expect…they will be held to legal consequences for their conduct on duty”? (While we’re at it, how about getting rid of qualified immunity too, so that prosecutors, judges, and cops are subject to the same standards of liability that apply to the rest of us for our conduct on and off duty? Or give everyone qualified immunity, which comes to the same thing?)
That would be a perfectly fine debate to open in the U.S.
I also think it would be fine to deal with Aubrey’s question regarding screwing with exculpatory evidence.
As a general proposition, I don’t hold anything off the table. I like debate, and reviewing things every few years.
If it were up to me, all laws would have a sunset provision.
I think that most here knew that many of the charges were bogus from the beginning, and should never have been brought. Case law said that if someone sees cops, and starts to flee, they have a reasonable suspicion that the suspect is up to no good, and a Terry Stop is justified. A Terry Stop allows a pat down for weapons for officer safety, but the knife was in plain view, clipped to his body or pocket, so no pat down was required. Thousands upon thousands of convictions would need to be overturned if either of those two were wrong, and, legally, there was no basis for Mosby to believe differently. And then Grey was arrested for possession of the knife under a Baltimore ordinance. And, all indications so far, including police dept experts, agree that the knife was illegal under the Baltimore ordinance. So, the prosecutors had no legal or rational basis for the charges based on Grey’s arrest. They should have known better, and if they didn’t, were guilty of gross incompetence.
But they went ahead. They tried to substitute the MD law, that was not violated, for the Baltimore ordinance that was. But the arrest paperwork makes clear the reason that Grey was arrested – it explicitly cites the Baltimore ordinance. The original citing of MD law may have been a mistake engendered by incompetence. Maybe (but IMHO unlikely). But by the time that it went to the grand jury, this problem had been pointed out to them. Which means that these charges were substantiated by intentional fraud. The prosecutors intentionally lied to the grand jury, and, effectively, to the judge. Compounding this, as far as I know, these charges have yet to be dismissed against the remaining defendants.
That alone is reason, to me, that Mosby should be disbarred and the prosecutors involved seriously disciplined. And why none of them should have qualified immunity -,their official actions intentionally violated the civil rights of at least some of the arrested officers.
I am much less swift condemning the prosecutors for their attempt to try to prove negligence through failing to seat belt Grey, or possibly giving him a rough ride. Early on, they might have thought that they might be able to build a legal duty to seatbelt prisoners (esp after the change in official policy). And an intentional rough ride being the proximate cause of Gray’s death might well have supported some sort of homicide charges. Moreover, a failure to timely provide medical care could potentially have provided sufficient negligence for a manslaughter charge. These were fact questions that they may have, possibly, had legal grounds to file. The problem here though is that when the facts turned out not to be as clear cut as the prosecutors seemed to think, and ultimately to defeat their charges, they still didn’t drop the related charges, and four officers remain charged wth crimes that the prosecutors have no real reason to believe are justified.
Let me add the obvious. Thanks to the hard work of Andrew, we were in possession of the information for my first two paragraphs almost from the start. The prosecutors had the same information, and (likely intentionally) ignored it. We all saw here the citation of the Baltimore ordinance (instead of MD law) in black and white in the arrest paperwork filed well before Grey died. And, we also all knew about the panel of police supervisors agreeing that the knife violated the ordinance, which means that the officers had legal probable cause to arrest Grey. The prosecutors had the same information – and compounding the ethical problems for the prosecutors, their insistence on sticking with the MD statute after that report verged on criminal.
Look at that Mussolini face. It’s not there all the time, but it’s there. There was a time I could ignore it. When I was in college and wanted to get laid. I could ignore anything, then.
Narrative: Activists abetted by the media and liberal politicians manipulate news events to fit the narrative.
Agenda: The narrative supports the liberal agenda whether it is delegitimizing law enforcement or mainstreaming transgender for children.
The most reasonable explanation for the injury that resulted in Freddie Grays death is accident. The man was somewhat under the influence of drugs, stood up in the transport van, fell when the van moved and hit his head. The trail of evidence finds no “rough ride”, no cop “beat down”, no brutality or malice by police, and no history of brutality by these officers. Actually the officers displayed a measure of compassion that is ignored by the media when one officer searches for a nonexistent inhaler for Freddie at the initial stop and when another officer at a different stop steps into the van for a health check and helps Freddie to sit on a bench. None of these police actions fit the agenda and so they are purged from the narrative and replaced with lies that do support the agenda-driven narrative.
Freddie Gray was a troubled individual at the margins of society which should not be a death sentence but the sequence of events resulted in an unforeseen, unfortunate accident and a tragedy for Freddie Gray’s friends and family. RIP
Gray’s death was not strictly accidental, it was death by misadventure.