After going zero for two in her attempts to prosecute the Baltimore police officers involved in the Freddie Gray affair, Baltimore State’s Attorney Marilyn Mosby may be finding herself in court in a very different role than the one she’s accustomed to. Giving voice to what many observers have suspected since this entire sordid affair began, two of the officers being targeted by Mosby are suing her for defamation. (Baltimore Sun)

Two officers charged in the death of Freddie Gray are suing Baltimore State’s Attorney Marilyn Mosby for defamation and invasion of privacy, court records show.

Sgt. Alicia White and Officer William Porter, who are both facing charges of involuntary manslaughter in the 25-year-old’s death last April, filed the lawsuit against Mosby, Baltimore Sheriff’s Office Maj. Sam Cogen, and the state of Maryland in Baltimore Circuit Court on May 2, records show.

The officers claim Mosby and Cogen knew the statement of charges filed against the officers and other statements made by Mosby at her May 1, 2015, news conference announcing the charges “were false.”

“These among other statements were made not for the purpose of prosecuting crimes that had allegedly been committed by White and Porter, but rather for purposes of quelling the riots in Baltimore,” the suit alleges.

On the surface, this case doesn’t look as if it would make it very far in the courts. While not absolute, there is a general understanding that prosecutors can’t be sued for “doing their jobs” and bringing charges against suspects. There are exceptions, of course, but they are few and far between, requiring extraordinary circumstances of provable malice on the part of the prosecutor. Even then the waters are rather muddy. We can think of the case of Terry Harrington and Curtis McGhee, two men from Iowa who were jailed for 25 years before being freed after it was shown that they were essentially framed and the prosecutor had withheld evidence which could have proven their innocence. That suit made it all the way to the door of the Supreme Court where the justices were indicating that they might be disposed to allow the case, but the county decided to settle with the men out of court and the case was dismissed.

While there may have been no final resolution to the question of whether or not you can sue a prosecutor, that lawsuit shows the dramatic extremes required to even try. And that was in a prosecution which looked like it was entirely based on fraud. White and Porter will likely have a very steep road ahead of them to even get a full hearing. This is a case where a suspect did, in fact, die in police custody under circumstances which were at least questionable enough to merit a look by a grand jury. In that context, the general standard for prosecutorial immunity may allow Mosby to have this petition dismissed.

That doe not, however, mean that their complaints are without merit in the view of the public, even if they can’t prevail in court. From the moment the riots began it was obvious that both Mayor Stephanie Rawlings-Blake and Mosby were looking to appease the masses in the streets and shift the blame to the cops. Mosby stood before the cameras on the steps of City Hall and promised the city that she would “deliver justice on behalf of Freddie Gray.” The Mayor was complicit in arranging for a multi-million dollar payout to Gray’s family before the first jury was ever seated in what could only be interpreted as an admission of guilt on the part of the police department. These were the acts of city officials who were trying to side with the rioters in the streets and buy some measure of peace rather than simply finding the truth underlying the events of Gray’s arrest and deliver justice no matter the reactions of the crowd.

Mosby may escape criminal or civil liability in this matter, but her career is likely over, much like that of the Mayor.

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