The trials for the Baltimore police officers involved in the Freddie Gray incident may be over, but legal proceedings against the State’s Attorney in the case, Marilyn Mosby, are not. She’s still facing a civil suit stemming from allegations of unlawful prosecution of the officers who claim that they were pursued for political reasons rather than the proper interests of justice. This was always going to be a tough case to win for the plaintiffs for many of the same reasons I cited when two of the officers sought to sue her for defamation. As an attorney for the state, Mosby largely has a free hand in deciding which cases to prosecute based on her own discretion, and getting the courts to punish her could have a chilling effect on the law enforcement system in general.
But as the local Baltimore CBS outlet reports, at least one legal analyst believes that special circumstances are in play here and the main case against Mosby could have legs.
The lawsuit that five Baltimore City police officers brought against State’s Attorney Marilyn Mosby could have an unprecedented impact on her office. WJZ’s Mike Hellgren reports it faces some tough legal hurdles…
[Legal analyst Warren] Alperstein watched the Freddie Gray-related trials unfold. He says if the officers’ lawsuit moves forward, it could have a disastrous impact on the State’s Attorney’s Office.
“You can bet that the officers and the attorneys are champing at the bit to get Mrs. Mosby under oath,” said Alperstein.
Where Mosby could face problems is in her unusual role as an investigator in Freddie Gray’s death, and that could strip her of her immunity against the lawsuit.
There are a couple of avenues of attack here which attorneys for the officers are pursuing. One is the claim of an apparent conflict of interest, stemming from the fact that Mosby was the one conducting the initial investigation into the actions of the offices and then was the sole person making the decision as to whether or not to prosecute them. A second, and potentially more damning aspect of their claims is based on the accusation that Mosby provided false information about what happened to Freddie Gray in an effort to make her case against the police officers more compelling. If they can convince a judge that she was acting with malice against them rather than simply seeking justice in the case, her normal immunity might be stripped, as is explained in this local CBS report.
Personally, I’m not seeing enough here to alter my original prediction… at least not yet. Prosecutorial discretion is baked into the cake in these cases and having a judge set it aside would be an extraordinary event. In the end it will all come down to the officers being able to convincingly show intent. If they can document the introduction of false evidence and convince a judge that it was done to railroad them then not only would the case move forward, but Mosby’s career (such as it is at the moment) would immediately be over. But proving that will require extraordinary evidence and we’ve not seen that coming out of the press coverage yet. Most of the factors involved could still be attributed to interpretation and, at most, an error in judgement rather than malice. If the judge sees it that way then this case could still be over, ending in Mosby’s favor.