Comparisons drawn to Duke lacrosse, George Zimmerman cases
By Jeffrey Scott Shapiro –
Marilyn Mosby, the Baltimore City State Attorney in charge of prosecuting six police officers for the death of Freddie Gray, Jr., is coming under increasing criticism from defense attorneys and legal scholars who think she is politicizing the case and using her prosecutorial power to create her own celebrity.
Ms. Mosby has raised eyebrows in several quarters with a media blitz that has spanned from a CNN interview that focused on her courtship with her city councilman husband to her decision to appear on stage with Prince during a rock concert for a song dedicated to Mr. Gray.
The legal experts say Ms. Mosby is in danger of running afoul of the Maryland Bar standards barring prejudicial conduct by prosecutors, or at the very least traveling down a well-worn path of failed celebrity prosecutions like those involving O.J. Simpson, George Zimmerman or the Duke lacrosse players.
“She’s a young prosecutor in the starlight with an agenda, which is not solely focused on prosecution,” said Mark O’ Mara, the Florida criminal defense attorney who successfully defended Mr. Zimmerman against charges he shot an unarmed black man in a trial that turned the tables on the prosecutors.
“If she wants to prosecute cops, that’s a gargantuan task in itself,” he added. “If she’s going to be the standard in which we prosecute police, then do it responsibly, don’t open yourself to undue criticism a lot of lawyers are probably asking, why are you on stage with Prince — why aren’t you working?”
The recently sworn-in prosecutor announced second-degree murder charges in the Gray case on May 1, less than two weeks after the 25-year old African-American died of spinal chord injuries after a ride in a police transport van, and just one day after the police department filed their investigative report to her.
That same day allegations arose that she could not prosecute the case objectively because the victim’s family attorney, William H. Murphy, previously made a $5,000 contribution to her 2014 political campaign.
Ms. Mosby dismisses the criticisms as trumped up, and insists her office will do a professional job in prosecuting Mr. Gray’s death in the courtroom, not the court of public opinion. Ms. Mosby got some high-profile support Monday from Rep. Elijah Cummings, D-Md., who called the prosecutor “brilliant” and cited her “her integrity and her excellence” during a CNN interview.
Still, some legal scholars warn she is teetering perilously close to the path of high-profile failed prosecutions, leaving a trail of quotes and comments that could be used to challenge her impartiality or to file a Bar complaint.
The person she’s following is Angela Correy, the horrible prosecutor from Florida who brought the George Zimmerman case,” Harvard law professor Alan Dershowitz said in an interview. “[Appeasement] was completely the reason she brought the [Gray] case too quickly. This was crowd control, not justice. She is all about now, all about the present. This is her big opportunity.
“What’s worse is her statement that she listened to the crowd, she listened to ‘no justice, no peace.’ I think prosecutors, when they talk about justice for the victim they’re presuming guilt and that’s not the way a prosecutor should operate,” Mr. Dershowitz said.
Ms. Mosby, 35, was sworn into office in January after serving seven years as a city prosecutor from 2005-2012 and two years as an insurance litigator for Liberty Mutual. She pledged to restructure the Baltimore City State Attorney’s Office to mirror the metropolitan prosecutorial models of Atlanta, Los Angeles, and New York.
The Gray case is the biggest to arrive on her watch, and she has used the bully pulpit in ways that not only have bothered legal scholars but also traditional law enforcement officials.
The day Ms. Mosby announced charges against the police during a long press conference, Milwaukee County Sheriff David Clarke said it was “George Zimmerman and the Duke Lacrosse case all over again.”
Jonathan Turley, a constitutional scholar at George Washington University Law School, said he sees parallels between Ms. Mosby’s early case conduct and that of Michael Nifong, the North Carolina prosecutor who unsuccessfully brought the 2006 charges against the Duke University lacrosse players. Mr. Nifong was eventually disbarred for his conduct.
“The comparison to the Nifong case is unavoidable and rather obvious,” Mr. Turley said. “Nifong seemed caught up in the public outcry and media coverage in the Duke lacrosse case. He often seemed to relish the attention that came with his prosecution and seemed to follow Oscar Wilde in that the only way he could rid himself of temptation was to yield to it.
“His is a cautionary tale for all prosecutors, and his case resulted in many prosecutors re-examining their public persona. For that reason it’s surprising to see Mosby engaging in the same type of public events. Media coverage can have an obvious corrosive effect lawyers and particularly prosecutors,” he added.
Mr. Nifong repeatedly made public statements incriminating the team, and turning the public against the accused. In 2007, state officials ultimately took over the case, dismissed all charges, and declared the defendants innocent — not merely “not guilty.”
As a prosecutor, the Maryland Bar holds Ms. Mosby’s to an even higher standard than other lawyers, Mr. Turley warned.
“Prosecutors have an added responsibility to ensure the system of justice and to avoid the appearance of impropriety. She has chartered rather dangerous waters in playing such a public role in the controversy.”
A motion filed by defense attorneys representing the six police officers demands Ms. Mosby be removed from the case, specifically accusing her of violating the officers’ constitutional right to due process. It also alleges violations under the Maryland Declaration of Human Rights and Maryland Rules of Professional Conduct that polices attorney activity.
“Rarely in the history of any criminal case has a prosecutor so directly maintained so many conflicts of interest,” the motion reads. “Maryland has statutorily addressed the need for prosecutors to be held to higher standards.”
The motion points to Section (e) of Rule 3.8, Special Responsibilities of a Prosecutor, which demands a prosecutor in a criminal case shall “refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.”
The 3.8 rule has been embraced by the American Bar Association model rules and been applied almost universally, nationwide. The prosecutorial conduct maxim is a higher threshold of Rule 3.6, a more general rule that applies to all attorneys, restricting trial publicity. Both rules were inspired by the 1966 Sheppard v. Maxwell ruling in which the Supreme Court overturned Sam Sheppard’s murder conviction after the trial court judge allowed the media to operate in a “carnival atmosphere.”
“The motions speak for themselves,” Marc Zayon, a defense attorney for the accused officers, told the Times via email. “I look forward to the opportunity to litigate them in court.”
The Attorney Grievance Commission of Maryland, the state bar agency in charge of monitoring prosecutor attorney misconduct told the Times Ms. Mosby does not have any current ‘public charges’ or past sanctions filed against her, but said it could not disclose whether she was the subject of a current investigation.
Mr. Dershowitz said Ms. Mosby’s conduct is symptomatic of a flawed U.S. system that elects prosecutors instead of appointing them. He believes that invites prosecutors whose priorities are seeking higher office, not justice.
“In the rest of the world, prosecutors are civil servants,” he said. “They are appointed because of distinguished history, legal history law enforcement, or they study. In this country a prosecutor is a future senator, a future congressman or governor.”