Mosby’s Recusal Off Base
Marilyn Mosby, State Attorney in the Baltimore City District stood up and did what very few prosecutors have dared to do. She filed a criminal indictment against six police officers in her jurisdiction. The indictment stemmed from the death of Freddie Gray. He died of injuries resulting from a severed spine after spending several days in police custody.
Some critics, including the Harvard law professor, Alan Dershowitz, believe that she was quick to pull the trigger and indict the officers in the death of Freddie Gray. At the time she announced charges would be brought against the officers, Baltimore was on the brink of exploding. This fact, other critics allege, forms the basis for Mosby to seek a political solution rather than a judicial resolution based upon sound legal doctrine.
Defense lawyers for the police officers were quick to pounce on Mosby’s bold move. Why wouldn’t they? After all, their clients face severe restrictions on their liberty for the remainder of their lives.
Towards the end of my legal career, I invited Johnnie Cochran to lecture at a continuing legal education course hosted by the Gate City Bar Association on the topic: “How to defend an unpopular defendant.”
At the time, Cochran was fresh from successfully defending O. J. Simpson for the murder of his wife, Nicole Simpson and a restaurant waiter. My take-away from that symposium was, the lawyer first has to get ahead of the bad publicity that an unpopular defendant brings to a high profile case.
The techniques used by criminal defense lawyers in the Baltimore Police Six Case is classic Johnnie Cochran. They have filed motions asking the judge to remove prosecutor Mosby from the case. In doing so, they have made allegations that reflect negatively on the prosecutor in an effort to shine the light of publicity away from the bad conduct their clients are alleged to have committed.
If you recall the Simpson trial, the Cochran legal team, early in the Simpson defense, went after the lead investigator for how he had handled the evidence. By the time Cochran gave his “If the gloves don’t fit, you must acquit,” closing argument, it was a forgone conclusion that the bad actor in the murder of Nicole Simpson was the lead investigator. He had mishandled the evidence at the crime scene and had violated evidence room protocol with respect to establishing a clear change of custody for blood samples allegedly found at the crime scene, or at least so the public thought.
In the Baltimore Police Six Case, defense attorneys have raised five issues to show that Mosby, perhaps, the only prosecutor in Maryland with the intestinal fortitude to bring these prosecutions, should be taken off the case. Listed below are the five issues and their relative merits:
(1) “Mosby and her husband, city council member Nick Mosby, stand to gain financially and politically.” This is a laughable assertion. The motion alleges that because the Mosbys are elected officials and live in the area hit the hardest by rioters and looters, they stand to gain financially and politically by silencing the protests.
How absurd can a defense lawyer be? Every Baltimore resident has a stake in the financial and political outcome of the racial unrest that hit the city as a result of protests stemming from the homicide of Freddie Gray. This postulation is equally true for anyone who lives in a political subdivision anywhere in America. If this were the standard for recusal, no prosecutor anywhere would ever be able to prosecute a crime because they would all have a stake in the tax consequences flowing from crimes committed in their jurisdictions.
(2) “Someone in her office has a personal relationship with a potential witness.” Duh, for lack of a more respectful response.
The motion alleges that a deputy state’s attorney in Mosby’s office has a relationship with a Baltimore news reporter who interviewed a passenger in the van that transported Gray the night of his arrest.
Usually, conflicts like these are resolved by not allowing the deputy attorney in question to work on the case or to have any conversation with any co-worker or potential witness in the case. Need I say duh again?
(3) “Her office took a role in investigating the case.” Another duh moment.
Many jurisdictions now find it helpful to have a state’s attorney assigned to the case as soon as the crime is reported. They often conduct their investigation independent of the police investigation. Because prosecutors are trained to prove guilt at trial, their investigations tend to ask questions that police investigators are not trained to ask. No big deal here, let’s keep it moving.
(4) “There is a pending civil claim against her office.” This is a cute one. Under Maryland law whenever a citizen intends to file a lawsuit against a political subdivision of the state it has 12 months to notify the entity of their intentions and two years to actually file the lawsuit if the parties have not reached a settlement.
Last week the Baltimore Police Six filed a notice of intent to hold Mosby’s office responsible for declaring that the state’s definition of a lawful knife takes precedent over a city’s ordinance definition of what constitutes a lawful knife. This is a simple matter of knowing your eighth grade civics or for Maryland lawyers, knowing a little Maryland constitutional history.
In 1819 the U S Supreme Court held in McCulloch v. Maryland that federal law took precedence over state law. This rule has typically been applied in state matters, where legislation enacted by the state legislature is supreme over locally enacted ordinances.
Mosby prosecutes major criminal cases brought before the Baltimore Eighth Circuit Court. In doing so she is charged with upholding state law. Under state law the knife that was in Gray’s possession is not classified as an unlawful weapon.
If there are conflicts in laws enacted by the state legislature for all of Maryland and public laws enacted via local legislation by the Baltimore Legislative Delegation, the legislature and the appellant courts are the proper forum for resolving such conflicts. Bringing suit against a prosecutor for upholding the laws in her jurisdiction is way off base and driven by a desire to create a cloud over the prosecution of very unpopular police defendants.
(5) “An attorney for Gray’s family, William “Billy” Murphy, is a close friend, supporter and a lawyer who represented Marilyn Mosby in an ethics complaint.” If you ever wanted to laugh out loud, now would be the moment to do so.
Mosby’s office is prosecuting six Baltimore police officers for alleged criminality. Her office is not involved in any civil claim that the Gray family has against the City of Baltimore. The legal community is a small community. Lawyers tend to know each other. They spend their whole careers negotiating with each other on behalf of their clients. To accept this reason as a basis to recuse Mosby strains the collegiality that is so important in the profession.
I expect the court to allow Mosby to remain on this case, but if the defense strategy is successful it will be because they were able to leave a taint on Mosby’s office in the mind of the eventual jury pool.
Such are the games lawyers play in the pursuit of that thing the system calls justice.
Harold Michael Harvey, is the author of the legal thriller “Paper Puzzle,” and “Justice in the Round: Essays on the American Jury System,” available at Amazon and at haroldmichaelharvey.com. He can be contacted at firstname.lastname@example.org