Michael Gaynor
Does Baltimore's Marilyn Mosby deserve the Mike Nifong Award for most contemptible prosecutor?
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By Michael Gaynor
May 8, 2015

She says the knife that Freddie Gray was carrying was legal. But according to the Baltimore Sun, the police task force examined it and said the officers were indeed correct, the knife was spring-assisted and therefore prohibited.

In a lengthy article titled "Duke Case Lessons Should be Learned and NOT Forgotten" republished by The Potomac (www.webdelsol.com/The_Potomac/newpotomac-mgaynor.htm), I commented that among the "plethora of lessons to be learned from the Duke case" are that (1) "a prosecutor's duty is to pursue the truth regardless of political considerations, not to prosecute for political advantage," (2) "a criminal accusation should be investigated objectively, not hyped," and (3) "[t]reating [those lessons] as 'water under the bridge' would be foolish."

It appears that such lessons either have not been learned or were forgotten by another ambitious prosecutor with a personal political agenda.

In the infamous Duke lacrosse case, there was no rape or kidnapping and the real scandal was the baseless prosecution by Mike Nifong, an opportunistic white man then serving by appointment as district attorney in Durham, North Carolina and willing to pander to black voters in a Democrat primary in order to win election and keep his job, the prosecution of six Baltimore police officers by Marilyn Mosby, a young black female who became Baltimore state attorney earlier this year after winning a Democrat primary against a white male incumbent last year and the wife of Baltimore councilman Nick Mosby, seemed to be an egregious abuse of power by a politically motivated person.

Page Criowder, formerly of the Baltimore State Attorney's office (pagecroyder.blogspot.com/2015/05/baltimores-hasty-prosecutor.html?m=1), promptly lambasted Mosby as "Baltimore's Hasty Prosecutor" and explained why:

"Baltimore State's Attorney Marilyn Mosby's 'quick' and 'decisive' action in charging six Baltimore police officers a mere two weeks after the death of Freddie Gray reflects inexperience, recklessness, political ambition, or all of the above.

"Alan Dershowicz, the noted defense attorney, sharply criticized her for using her charging power as 'crowd control.' John Banzahf, a George Washington University law professor, predicted the eventual dismissal of most if not all the charges. The breadth of the charges, Mosby's overreaching, is all-too-obvious.

"Any prosecutor interested in the truth and in justice would have used all the tools at her disposal to find them. She has perhaps the most experienced homicide prosecutor in the state of Maryland as chief of her homicide unit, but did not ask him to investigate. She had access to the completed police report only one day before filing charges. And she failed to make use of the Grand Jury to gather, probe and test the evidence before a group of average citizens.

"The Fraternal Office of Police called Mosby's charges an 'egregious rush to judgment.' It smacks more of a calculated push to the spotlight, filing charges after a mere two weeks. She conducted her own 'parallel' investigation using her police integrity unit (the only unit for which she fails to list a supervisor on her website.) She received the autopsy report the same day as her press conference announcing the charges. In her haste to step into the national limelight, she circumvented normal charging procedures by grabbing a member of the sheriff's office to file them for her. Her actions appeared calculated for maximum surprise and effect, and she got it.

"But she was so hasty she drew up warrants for the wrong people. And her arrest of two of the officers for making an illegal arrest was itself 'illegal.' Had she taken the time to discuss it with the police department, she'd have avoided an embarrassing and unjust result.

"Published ethical standards prohibit the use of a prosecutor's powers for political or personal purposes. They demand that prosecutors be fair and objective and protect the innocence. Instead Mosby, without all of the evidence yet available to her, pandered to the protestors by saying she had 'heard [their] call for "no justice, no peace"' and promised to work for 'justice' for Freddie Gray, an ethical violation for which a former prosecutor immediately blasted her.

"For those who feel gratitude to Mosby because of the result – the stemming of the violence, the charging of police officers, etc.- their thinking is understandable but misguided. Switch the players and the decision, for example. Suppose Gregg Bernstein was still in office, and two weeks after Gray's death announced that he did not find criminal culpability. Wouldn't we all agree that he could not possibly have taken his time to reach the right result? And would we not also be suspicious because his wife was a major player in police operations not long ago? People who approve of Mosby like the result, but the process is more important for the integrity of her office. We have to be able to trust that no matter what the top prosecutor will act without bias or influence, whether it be from a mob or a relative or a campaign supporter like the Gray family lawyer, Billy Murphy.

"Mosby has undermined the cause of justice rather than promoted it with her haste. She has created an expectation of guilt and conviction. But her own charging documents do not even support the most sensational charge of second degree murder, and they raise multiple points of doubt about other charges. If no convictions occur, many will blame the system as unfair or unjust, when it may have been Mosby's own lack of competence and/or ambition in bringing charges so quickly. However much her performance raises her to star status, she will have dealt a blow to the justice system.

"And she has created a new expectation in the city: that police officers who arrest without what she considers to be probable cause (an often subjective standard) are subject not just to civil action (the current norm) but criminal action. Mere mistakes, or judgments exercised under duress, can land them in the pokey.

"How about Mosby's own mistake? Her case against the two arresting officers rests upon an "illegal" arrest. She says the knife that Freddie Gray was carrying was legal. But according to the Baltimore Sun, the police task force examined it and said the officers were indeed correct, the knife was spring-assisted and therefore prohibited. If so, it was Mosby who made the 'illegal' arrest, and could be charged under her own theory of 'false imprisonment.' And sued to boot, since she forfeited her immunity from civil action by doing the charging herself.

"If I were a Baltimore police officer, I'd be looking for another job immediately. And as a Baltimore citizen, I may start looking for someplace else to live. When the police cannot depend upon the state's attorney to be as thorough, competent, non-political, and fair with them as she is supposed to be with all citizens, none of us will be safe."

The knife needs to be produced so that it can be definitely determined whether it is legal or illegal. If it is illegal, Mosby should recuse herself from the case or be removed from it, since she is supposed to seem as well as be impartial.

Mosby charged three police officers with unlawfully arresting Gray for possession of a "knife commonly known as a switchblade" and declaed that it "was not a switchblade and is lawful under Maryland law" at her press event as which shepresented a statement of charges against six police officers. "Lt. Rice, Officer Miller, and Officer Nero failed to establish probable cause for Mr. Gray's arrest, as no crime had been committed by Mr. Gray," she said.

Mosby is right that the "knife was not a switchblade," but police never said it was and whether or not it is is not the test.

Officer Miller wrote in the arrest report that the knife is "a spring-assisted, one-hand operated knife."

Such knives are illegal in Baltimore under Article 19, Subtitle 59, Section 19 of the Baltimore City Code, which states: "It shall be unlawful for any person to sell, carry, or possess any knife with an automatic spring or other device for opening and/or closing the blade, commonly known as a switch-blade knife."

If the knife is legal, prove it. Instead Mosby issued this statement: "While the evidence we have obtained through our independent investigation does substantiate the elements of the charges filed, I refuse to litigate this case through the media. The evidence we have collected cannot ethically be disclosed, relayed, or released to the public before trial."

"The State baldly asserts that 'the knife was not a switchblade knife and is lawful under Maryland law,' Officer Nero's attorney, Marc Zayon, rightly stated in a motion to request a viewing of the knife.

That knife should not be concealed until trial. Mosby said it was a legal knife, and the Court hearing the motion should have it produced it open court and determine whether it is legal or illegal as soon as possible.

© Michael Gaynor

 

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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)

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