We’ve now had the better part of a day to absorb all the information coming out of the rather stunning announcement from Baltimore City State’s Attorney Marilyn Mosby, which Ed covered yesterday. After she leveled very serious charges against six police officers related to the death of Freddie Gray, Mosby was immediately being hailed as a hero by the usual sources on the left. But now that I’ve had some time to go over the charges and what’s been revealed of the case thus far, it seems very likely that Ms. Mosby, barely three months into her first elected office, has grabbed a tiger by the tail.
To be clear, as I wrote earlier this week, it’s certainly possible there is sufficient evidence of wrongdoing in this case to merit charges against one or more police officers, but we won’t know that until all the evidence is presented as the state prepares to go to trial. But from what we have managed to learn thus far, some of the charges Mosby has delivered look like a dramatic overreach. In particular, tagging Caesar R. Goodson, Jr with second degree depraved heart murder will be a serious stretch, considering the need to prove intent (on top of everything else) against someone who was walled off in the driver compartment of the vehicle and unable to reach – or for the most part even see – Freddie Gray. As things stand, involuntary manslaughter might be the best the state could hope for.
But even if we are to accept that the state’s investigation has revealed sufficient evidence for such charges, the handling of this case by Mosby thus far is only handing ammunition to the defense. I was particularly struck by the tone and wording of Mosby’s speech, which veered far from any pretext of the rule of law and well into social justice territory regarding law enforcement officials who have yet to have their day in court.
“To the people of Baltimore and demonstrators across America, I heard your call for ‘No Justice, No peace,'” she said. “Your peace is sincerely needed as I work to deliver justice on behalf of this young man.”
This should be alarming to anyone in the justice system. Cries in the streets of “No Justice No Peace” are certainly protected, First Amendment speech, but they are also a strongly implied threat of lawlessness which stands apart from whatever perceived injustice is being protested. To have the State’s Attorney echo that on the steps of the courthouse was off-putting to say the least. What’s more, it was a very direct signal that the crowds threatening the state with “no peace” had secured a victory by having Mosby stand up in public and declare that she would “deliver justice” for Freddie Gray long before there has been a trial, to say nothing of a conviction of officers who are innocent until proven guilty. How does one promise what justice will look like before a determination has been made?
Beyond the speech, Mosby has other problems which the defense is already jumping on. Gene Ryan, president of Fraternal Order of Police Lodge 3, has already called on Mosby to recuse herself for a variety of reasons.
Ryan requests that Mosby appoint a “Special Independent Prosecutor.”
“I have very deep concerns about the many conflicts of interest presented by your office conducting an investigation in this case,” the letter states.
“These conflicts include your personal and professional relations with Gray family attorney, William Murphy, and the lead prosecutor’s connections with members of the local media,” the letter states. “Based on several nationally televised interviews, these reporters are likely to be witnesses in any potential litigation regarding this incident.”
Being so young and so new to the job should not preclude Mosby from tackling this case, though normally you’d want a more experienced hand on the tiller for such a nationally inflamed procedure. These are the types of cases which can make (or break) someone’s career. But I have to wonder if she has fully weighed the optics of handling this case when she has close ties to the Gray family attorney while also being married to a legislator representing the district where the riots happened. (Someone with an obvious interest in trying to appease the masses in the streets and prevent more violence.) Those relationships, combine with an attitude which seems to indicate that she has convicted the officers in her mind before they’ve said a word in their defense, will throw all sorts of shadows on her handling of the case as we move forward.
As a side note on the legal wrangling to come, don’t be surprised if the defense for the officers opts to waive their right to a trial by jury and go for a bench trial. Finding a jury from those zip codes who wouldn’t convict all of the cops on the most serious charges – even if the evidence totally failed to support it – might be a serious chore. But an experienced judge should, in theory, be able to turn a more neutral eye on the evidence.
It’s too early to tell, but my initial reaction is that we’re seeing an ambitious but inexperienced prosecutor who was facing the possibility of not only more violence in the streets of Baltimore, but losing her credibility and popularity with the minority voters of the city. These factors may have clouded her judgement and led her to a serious overreach in an attempt to assuage the feelings of the protesters in the streets while potentially endangering her case.