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Will the Mob Tolerate an Acquittal?

The Baltimore State's Attorney today announced charges against six police officers in the death of Freddie Gray.  I have a number of thoughts.

The first is reflected in the title of this entry:  Will the mob tolerate an acquittal? The calls in recent days have been for "justice."  I have considerable doubt whether those doing the loudest calling have much interest in justice.  I think they want to see police officers punished simply because of who they are.  If that is true, then the riots we've seen up to now will pale in comparison to the ones we'll see in the event of an acquittal.  

This is what we need to face:  The evidence will not make any difference to those most inflamed (and I use that word advisedly) about this case.  We've all seen this before  --  most recently with Darren-Wilson-is-Satan-hoax in Ferguson and with the fraternity falsely accused of hosting gang rape at the University of Virginia.

The facts are not the point.  The narrative is the point.

Of course, there is a great deal more to say about this case, only some of which I am able to get to for the moment.
In no particular order:

--  Freddie Gray was alive when he was put in the police van and all but dead when he came out (he died shortly after he was taken to a hospital).  I have not seen any more evidence than anyone else.  But the idea that these are merely politically motivated charges doesn't hold up.  

--  That they are not merely politically motivated does not mean that they aren't in part, perhaps in large part, politically motivated.  You cannot have watched the State's Attorney's press conference and not be very suspicious of political motivation. She was openly playing to the crowd.

--  Her behavior was not in my view unethical.  A prosecutor is a public official and is allowed to announce official decisions.  But her performance was grandstanding, and I view it as somewhere between unfortunate and disgraceful. My impression is that she is too ideological for the job. Probably too young, too.

--  The police union has called for the appointment of an independent prosecutor. I do not know Maryland state law, and thus do not know the process, or the substantive standards (if any), for deciding whether an independent prosecutor should be appointed.  The only thing I'm decently sure if is that the judicial branch should have no role in deciding that question.  The selection of the government's attorney and prosecution of charges are exclusively executive branch functions.

--  I'm waiting for our friends on the liberal side to give their standard caution about the presumption of innocence and the perversity of trying a case in the press, before all the facts are known.  I have a feeling I'll be waiting a long time.

--  The coroner apparently ruled this case a homicide.  I would like to know how he knows that, as opposed to, for example, accidental death.  

--  I am more than a little suspicious of the speed with which these charges were brought.  Is this standard procedure in Baltimore?  I don't know, but you have to wonder.

--  On the other hand, criminal charges do not require proof beyond a reasonable doubt.  They require only probable cause.

--  A conviction, however, does require proof beyond a reasonable doubt.  That is a tough standard, and may be particularly tough in this case, where (at least for the homicide charge) causation seems to me like an uphill climb for the prosecution.  See this article describing Prof. John Banzhaf's doubts about the provability of the homicide charge.

--  As readers know, one area in which I agree with critics of the current functioning of the criminal justice system is in their view that we have too many pleas bargains and not enough trials.  Even more than usual, I hope this case will go to trial.

Trials do not exist to provide simply a public airing of contested facts in a notorious case, but they can have that effect. I dearly hope that neither side backs off into a plea agreement in this matter.  If the prosecutor is filing an case she can't prove to satisfy a component of her constituency that loathes the police, she should be shown up and suffer the humiliation such a gross  --  and ominous  -- abuse of power deserves. The last thing a trial should be is the final spasm in an anti-police festival. 

If the defendants are guilty of these very serious allegations, they should not be let off with watered-down charges. Police officers are human beings just like the rest of us, and they are going to make mistakes.  But abuse of suspects and murder are not mistakes.  They are wounds to an essential public trust, and they are crimes.  They should be dealt with as such.

--  "Bearing the discomfiture and cost of a prosecution for crime even by an innocent person is one of the painful obligations of citizenship."  Cobbledick v. United States, 309 U.S. 323 (1940) (Frankfurter, J.).


Assuming that the driver of the van was charged with depraved heart second-degree murder, it looks like that might be a difficult charge to prove.

Under Maryland law, that charge requires that the killing resulted from "the deliberate perpetration of a knowingly dangerous act with reckless and wanton unconcern and indifferance as to whether anyone is harmed or not."

Perhaps the prosecution's theory is that driver of the van knew (or any reasonable person in his position would have known) that Freddie Gray's injuries were severe and, therefore, he should have immediately transported him to the closest hospital (or radioed for EMTs). And, by failing to promptly take those actions, and by continuing to drive around the city with the seriously injured, handcuffed, shackled, un-seatbelted arrestee, he deliberately perpetrated a dangerous act with the required reckless and wanton mens rea.

If that is the case, the question remains how did Gray sustain such severe injuries? Who inflicted those injuries? Where and when were those injuries inflicted?

Needless to say, the autopsy report is critical.

Can you explain, Bill, the basis for your views that the prosecutor is "too ideological for the job [and] [p]robably too young, too." I believe she is nearly 5 years older than was the current Gov of Arkansas when he was made US Attorney by Prez Reagan. And aren't many current Assistant USAs much younger than this prosecutor?

Sorry if I might not be following all of your comment rules, but I am genuinely curious to hear more about your views as what makes a prosecutor "too ideological" and/or "too young" to do his/her job appropriately.

As to too ideological, watch the tape of her press conference. She is pitching to the "Hands up, don't shoot" crowd and relishing it. I seriously doubt you could have missed that.

As to too young, see above. A seasoned prosecutor would simply recite the charges, say, "the case will proceed according to processes of law like any other," and shut up. In addition, she started giving media interviews almost immediately. I saw one on "All In" on MSNBC last night.

She has had this job for four months, and is veritably shimmering with ambition and a love of the spotlight. That is no way for a prosecutor to behave -- as your side knows and insists upon in similar contexts (but where the police are not defendants).

You would probably know more about how prosecutors should act if you had spent ten minutes being one, or even if you had taken up my repeat suggestions to visit your local USAO.

I do not know the median age of AUSA's. I can tell you that if one of them gave a flaming statement like that on the courthouse steps without so much as seeking an indictment, he would be in big trouble.

"Sorry if I might not be following all of your comment rules..."

You needn't fret about my comment rules, since they are guideposts only for MY responses, not anyone else's. But I am going to follow them in deciding when to respond, yes indeed.

Bill, I do not represent a side and always find annoying that you view every discussion like this in terms of sides, especially because it reinforces the very ideological frame that you (and I) think should not be dominant in this setting.

As for playing to an audience, isn't this somewhat required for an elected prosecutor? My understanding is that this prosecutor defeated the incumbent in the most recent election by saying she would be going after abusive cops. As an elected official, should she rightly feel permitted, even a bit obliged, to give the people what they voted for?

I am not trying to defend this prosecutor, but rather trying my best to understand how you think elected officials in these setting can and should try to avoid being too ideological or too sensational whenthe electoral process often seems to reward those who tend to be more ideological and sensational (see, e.g., Sheriff Joe in Arizona or the AGs in OK and NE suing Colorado in the Supreme Court over its marijuana reform).

@ D Berman -
I would think, given the (not potential but rather) probability for future violence in Baltimore, that the prosecutor would both seek to tamp down expectations for convictions, and be wary of overcharging lest she raise exactly those community emotions when charges are dismissed, reduced or result in acquittals. And, as you note, she is only four months out from election and some distance from another popularity contest. Someone perhaps more seasoned might have gone to a grand jury for these reasons, as well as to deflect blame if and when the charges go south, as they are often wont to do.

On that issue, if the driver of the van took some exrtracurricular driving maneuvers which (to his lasting unhappiness no doubt) unintentionally resulted to Gray's injuries, some charges will probably fly against him. But the other officers? Unless there is somethine large and scandalous missing from the public knowledge, thin seems like the operative word.

So young and ideological seem like apt adjectives, although there may be others that spring to mind.

BTW, Janet Reno, as State Attorney in Miami, did exactly this in a in-custody death case when some charges against some cops were obviously appropriate, but she overreached and overcharged everyone in sight, and couldn't prove the cases. All of the cops were acquiited, there was a week-long riot with multiple deaths, widespread damage, etc. It was a classic case of filing to appease a segment of the community, and confusing a press release with the ethics of filing what you can prove.

"I do not represent a side..."

I didn't say you "represent" a side. But it is not possible to read either your comments here or the entries you write on your own blog and fail to understand that you consistently FAVOR the side opposed to what would be called "law-and-order." That is so obvious it's not open to realistic debate.

"...and always find annoying that you view every discussion like this in terms of sides."

I find it annoying that you present yourself as merely trying to "understand" what I say, when you consistently attack it, as you are doing here.

Not that whether you are annoyed, or I am, is the subject of this entry, or one readers are likely to find illuminating.

"As for playing to an audience, isn't this somewhat required for an elected prosecutor? My understanding is that this prosecutor defeated the incumbent in the most recent election by saying she would be going after abusive cops. As an elected official, should she rightly feel permitted, even a bit obliged, to give the people what they voted for?"

She gave the people what they voted for BY FILING THE CHARGES. Giving an inflammatory speech in addition is, as I said, somewhere between unfortunate and disgraceful. The campaign is over. Discharging the duties of office is a different matter altogether.

This is easy to see by simply imagining what you (or anyone) would say if this were a white prosecutor giving a red-meat courthouse steps press conference about a case with a white victim. The MSM would be aghast.

I also think the commenter above makes excellent points. The rush to charge in this case -- less than 24 hours after receiving the medical report, and without bothering with a grand jury -- should trouble you all by itself. Beyond that, rushing now increases the risk of failure later, which in turn increases the risk of repeat, and even worse, rioting.

It is a standard (and correct) nostrum that the prosecutor should seek justice. It's perfectly obvious (and you more-or-less concede) that this one was seeking the limelight. Wielding the power of the state calls for more sobriety, restraint and maturity.

Anyone wish to comment on whether the Baltimore City State's Attorney violated any of the following Maryland Rules of Professional Conduct:

Rule 3.6(A) - "A lawyer who is participating...in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter."

Rule 3.8(e) - "The prosecutor in a criminal case shall...except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial statements that have a substantial likelihood of heightening public condemnation of the accused..."

interesting and good commentary here, all of which tends to reinforce my long-standing views that the work of prosecutors should always be subject to maximum transparency and accountability. And these views are not a product, Bill, of being against law and order: rather it stems from a deep distrust for the exercise of government powers to control individuals. Freddie Grey is dead due to seeming misuse of government powers, and now there is a justifiable concern that government will now misuse its powers again in order to satiate a mob eager to believe two government wrongs might make a right.

Rather than dicker over how government should seek to respond to its own misuse of power, I seek a broad recognition that undue growth and faith in the government is the source of many more problems than solutions.

paul --


Excellent work finding the Maryland Rules of Professional Conduct.

One thing I was careful to try to do as a federal prosecutor was avoid giving the defense grounds for (1) motions to disqualify and (2) motions for a change of venue. Not exactly the right way to start a case, either from the perspective of the state's side, or from those in the public looking to be assured of fairness. And it has a high chance of back-firing.

But it took Ms. Marilyn Mosby all of five minutes to furnish grounds for both.

As I say, she's too young, too ideological, and too publicity-seeking to be handling this.

As you likely remember, Bill, DOJ for quite some time resisted having its lawyers be subject to the same rules of professional conduct that govern all private lawyers practicing in federal courts.

Were you ever involved in the discussion and debate over these issues at DOJ and do you feel that STATE bar conduct rules always should govern the work of FEDERAL prosecutors? Just curious in light of our long-running debates over the work of federal prosecutors and judges as to whether you think state bar associations might serve as an effective and permissible institution for seeking to ensure federal prosecutors are subject to maximum transparency and accountability in their sentencing decision-making.

"Just curious in light of our long-running debates over the work of federal prosecutors and judges as to whether you think state bar associations might serve as an effective and permissible institution for seeking to ensure federal prosecutors are subject to maximum transparency and accountability in their sentencing decision-making."

No I do not.

Reason: Federalism and the Supremacy Clause.

This doesn't take a whole lot of imagination.

Consider an "ethics" rule for, say, Mississippi in 1954: "It is a violation of the canons of ethics for an attorney in this state to advocate, directly or indirectly, that the races are equal."

The problem with that state rule is not merely that it's repulsive. The problem is that, if applied to AUSA's in Mississippi, it would subordinate federal policy and practice to state policy and practice, in violation of the Constitution.

Now to return to the subject of this thread: Do you think Ms. Mosby is showboating? Do you think she's pandering to anti-police sentiment? Do you approve of whip-up-the-crowd courthouse steps statements of the kind she made? Do you think her behavior is consistent with the state rules that govern her?

Regarding the subject of this thread: It will be interesting to see what, if anything, Maryland ethics authorities do to Ms. Mosby in light of what they did to former Maryland AG Doug Gansler because of his extrajudicial statements. (Attorney Grievance Commission of Maryland v. Gansler, 377 Md. 656 (2003).)

On the off-topic issue of federal prosecutors being subject to the ethics rules in the state in which they practice. That has been the law since 1999. And every court to address the issue has rejected Supremacy Clause arguments. http://ssrn.com/abstract=2550404

paul --

Consider this: Massachusetts adopts a state ethics rule forbidding any Massachusetts-licensed attorney from seeking the death penalty as a violation of state legal and human rights policy. An AUSA in Boston seeks the death penalty against Dzhokhar Tsarnaev.

Do you think that AUSA can be disciplined under the state ethics rule?

paul --

I would note in addition that the ssrn article you cite was written by a Fordham law student who worked for three months last summer as a clerk for a public defender. Having presented cases in federal court for about 25 years, I am not inclined to take her view as authoritative.

Are you?


I agree that the hypo you present would pose constitutional problems. And the federal prosecutor could not be subjected to any such restriction.

I also agree that the opinion of the author of the article is not authoritative. I only cited it because it includes accurate citations to case law that rejects a Supremacy Clause argument.

paul --

I believe your first paragraph is inconsistent with your second.

If, as you correctly say in your first paragraph, the AUSA seeking the death penalty under federal law could not be sanctioned under a contrary state rule, the only reason for such a result lies in the Supremacy Clause.

Any law, or any court ruling, to the contrary is incorrect and would be toast in the SCOTUS.

The hypo you present raises constitutional issues, including the Supremacy Clause and separation of powers, that were not raised in the cases that have rejected the Supremacy Clause as a ground for declaring the McDade Act unconstitutional.

But the facts presented by your hypo have not transpired. And I am convinced that if they did the state ethics provision would be unconstitutional because of, inter alia, the Supremacy Clause.

I don't see any inconsistency in my previous comment.

OK, I'll leave it there except for one observation.

If state ethics rules actually governed the conduct of federal prosecutors, then federal prosecutors' behavior would be effectively controlled by their opponents.

State bars are dominated by private lawyers. This is not a conspiracy; it's simply because private lawyers vastly outnumber other kinds, and certainly vastly outnumber AUSA's.

The state bar could declare it "unethical," not just to seek the DP, but to fail to deliver Brady material within three hours of receiving it; to object to any aspect of the testimony of the defendant's mother; to refuse to admit defense counsel into the grand jury room (I personally handled that issue); to introduce a lineup identification in which there were fewer than 12 people in the line-up; and on and on.

In other words, the defense bar could simply enact all 10,000 items on its wish list for the Federal Rules of Criminal Procedure by writing them into state ethics rules.

This hasn't happened and it isn't going to happen. The reason is that, under the Supremacy Clause, officers of the federal government cannot, in the exercise of their official duties, be controlled by organs of state power. To whatever extent the McDade Act states otherwise, it is unconstitutional.

The criminal defense bar trying to convince a state bar to draft an ethics rule/opinion that will hamstring federal/state prosecutors? It happens. And it has been approved by courts despite Supremacy Clause objections. (cf. United States v. Kentucky Bar Association, 439 S.W.3d 136 (2014).)

My view is that under the Supremacy Clause, officers of the federal government cannot, in the exercise of their official duties, be controlled by organs of state power.

If the Supremacy Clause means something different, what would that be?

Note that I am not asking about what courts have held. Over the years, they have held all sorts of things on all sorts of subjects. I am asking for the reasoning of the view contrary to mine.

I agree with your view as it relates to using ethics rules (in many instances drafted by people aligned with the criminal defense bar) to chill prosecutors from doing their jobs according to the Constitution and the laws.

If a prosecutor's conduct is constitutional and legal can it be deemed unethical?

So, for example, if Ms. Mosby's extrajudicial commentary was constitutional and legal should she have to fear the Maryland Attorney Grievance Commmission going after her for violating an ethics rule?

Yes she should, as any STATE'S attorney is properly held accountable for compliance with state ethics rules.

She can, I suppose, defend herself with a federal constitutional First Amendment claim, and all I can say is, "Good luck, lady." It would have just as much success as someone trying to defend a perjury charge with a First Amendment claim.

That she as a State's Attorney is accountable to the state ethics rule-makers is, I think, easy to see:

Suppose she had said, in the same speech, "The defendants in this case are a sickening blend of crackers and n*ggers."

If state ethics boards have any power at all, they have the power to sanction a state prosecutor who says that. As things stand, she is, as you noted earlier, almost surely already in violation of two state ethics rules.

I'm not saying state ethics boards have no power. I'm saying that they have no power over a federal officer in the performance of his federal duties. Otherwise, I cannot understand what the Supremacy Clause means.

I have only have one observation beyond reiterating my general policy of not getting overly involved in the minutiae of high profile cases (that's why I read this blog) -- most things reported in the media that are "sensational" very rarely live up to the hype (this holds true for a certain fight this weekend). Besides, the uva non-rape, and "hands up don't shoot", don't forget duke lacrosse, "botched" executions, trayvon martin, and Hillary Clinton's email.

I am almost certain in this case, the truth is probably more mundane that evil racist cops kill innocent black guy. Doesn't mean the police might not be responsible but to me it seems like more of a wrongful death civil type action.

I have no doubt a riot will happen if the officers are acquitted, I am just glad I live faraway and some place safe like Los Angeles.


One last bit of minutiae.

Assume Mosby was an AUSA and made the same unethical comments. Assume further that there was no conflict between the Maryland ethics rule that she was alleged to have violated and any federal law. How could the Supremacy Clause shield her from application of Maryland's ethics rule?

Doesn't your Supremacy Clause argument presupose that application of the state ethics rule to an AUSA will conflict with the AUSA's duties under federal law?

Or are you making a broader argument that state ethics rules can never be applied to federal prosecutors practicing in a particular jurisdiction, regardless of the existence of a conflict between the state ethics rule and federal law?

The Supremacy Clause operates to negate state action that is INCONSISTENT with federal law. Since disciplining (hypothetical AUSA) Mosby for her appalling comments is consistent with federal practice, the feds would never invoke the Supremacy Clause to start with. Indeed, if I were the US Attorney with the misfortune to have Ms. Mosby on my staff, I would probably write the State Bar inviting them to impose discipline and waiving, on behalf of the United States, any Supremacy Clause defense.

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