Baltimore Sun

Persecutio­n or prosecutio­n?

In bringing charges to quiet social unrest, Marilyn Mosby oversteppe­d her bounds

- By Mark R. Weaver Mark R. Weaver has served as a prosecutor and as spokesman for the Civil Rights Division of the U.S. Department of Justice. He teaches at the Ohio State University College of Law and runs a communicat­ions consulting firm whose clients ha

People of goodwill can disagree on whether Freddie Gray should ever have been arrested by Baltimore police. But there’s no credible argument that the officers involved in his arrest should have been charged with crimes.

A recent Sun editorial outlined what the writers see as positive outcomes that came from the indictment­s and trials of the police officers involved. But the purpose of the criminal justice system is not to bring about general societal good. This system, built upon centuries of careful deliberati­on and adjustment, solely reviews cases when — and only when — probable cause exists to believe that someone committed a crime. Other uses of the justice system are illegal, improper, and, by definition, unjust.

While many people have used the death of Freddie Gray to advance their own agendas and refine their own reputation­s, one person alone bears the burden of responsibi­lity in court: State’s Attorney Marilyn Mosby. In our yearning to speak our minds, the rest of us are only constraine­d by the law and our conscience. Ms. Mosby is constraine­d by Maryland’s rules of ethics — with the leverage being her license to practice law.

A prosecutor who brings a criminal case for any reason other than probable cause violates her oath of office and the ethics rules. While she denies it, the facts show that much of what Ms. Mosby has done in this case has been ethically dubious.

It started with her news conference announcing the indictment­s. The law school class I teach examines the rules surroundin­g what lawyers can say to the press. Ever since the Duke lacrosse case, we’ve spent an entire class examining that prosecutor’s unethical media statements. Now, my class will study the unethical media statements of Marilyn Mosby.

By essentiall­y telling local youth that their outcries of outrage were a primary reason for bringing charges, Ms. Mosby started a political persecutio­n under the pretense of a prosecutio­n. Along the way, she withheld evidence, defamed police and brought such weak cases that the judge rivaled land speed records in issuing his acquittals.

Even in the more recent news conference, where she announced that she was dismissing the remaining cases, Ms. Mosby stumbled ethically. First, she said her original charges were meant to “seek justice” for Freddie Gray. She misunderst­ands her role. It’s the lawyers for Freddie Gray’s family who are tasked with seeking justice for Freddie Gray. A prosecutor represents the entire state of Maryland, not any one person. Her job is not to seek justice “for” anyone in particular. Her job is to simply seek justice.

This is more than a distinctio­n without a difference. As a prosecutor, I’ve felt the pull of wanting to bring certain charges and take actions that victims and their families demand. But prosecutor­s are called to do what’s right for everyone, not just the victimized.

I’ve seen this issue from both sides. At the U.S. Department of Justice, I worked side by side with prosecutor­s advancing cases against genuine and horrific police brutality. I’ve also helped speak out against those who target police for violence and vitriol.

Our nation is at a crossroads where trust between those enforcing the laws and those protected by the law is eroding. Justice ought not need its own advocate, but when it does, those who swore the oath of prosecutor must be in the vanguard of its defense. Yet Ms. Mosby pursues another path. She bristles with words of contempt for police and those who dare to criticize her actions. While passion and pride are laudable attributes in a public official, anger and agitation do not wear well.

In announcing the result that any sentient observer could have predicted, Ms. Mosby shouted her points in a style reminiscen­t of a hyper-charged political rally. She spit out words of contempt in a pattern that belied her obligation to be even-handed and even-tempered.

An overheated statement by an officer of the court that encourages and prompts cries of approval from an impassione­d crowd has no place in our justice system. If Lady Justice didn’t already have her hands full with scales and a sword, she would have covered her ears.

What’s worse, in announcing the dismissals, Ms. Mosby said she had to consider the “dismal likelihood of conviction” in dropping these charges. Justice would have been served had she made such a considerat­ion before filing the charges.

 ?? AMY DAVIS/BALTIMORE SUN ?? Baltimore State’s Attorney Marilyn Mosby, center, chose to hold a news conference explaining her decision to drop the remaining charges against police officers connected to the death of Freddie Gray in the neighborho­od in which Gray was taken into...
AMY DAVIS/BALTIMORE SUN Baltimore State’s Attorney Marilyn Mosby, center, chose to hold a news conference explaining her decision to drop the remaining charges against police officers connected to the death of Freddie Gray in the neighborho­od in which Gray was taken into...

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