Persecution or prosecution?
In bringing charges to quiet social unrest, Marilyn Mosby overstepped her bounds
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.