In my post here, I went after the Freddie Gray prosecutor, State's Attorney Marilyn Mosby. As usual, my remarks did not suffer from excess subtlety:
Freddie Gray died as a result of injuries sustained in police custody, and there remain more than a few questions to be answered about that. But the way to answer them is not with a "cops-are-Nazis" festival, which -- thanks to an immature, political and grandstanding State's Attorney -- is what the Freddie Gray prosecutions have become. Not for nothing did she lose today's case, just as she fumbled away (in a mistrial) the one before.
I was struck to see how much my take on it resembles that of liberal but independent-minded Harvard Law Prof. Alan Dershowitz, who said in an interview on Fox News:
On Tuesday night's The Kelly File, Harvard Law professor Alan Dershowitz says Baltimore's state's attorney Marilyn Mosby, the Freddie Gray prosecutor, acted irresponsibly, politically.
"These are officers who, you know, may have made a mistake but they are not guilty of criminal conduct," Dershowitz said of Officer Edward Nero being found not guilty in Baltimore. "What she tried to do is stop the mob [of rioters and arsonists]. I understand that, but you don't use the criminal justice system to solve racial problems.""She's a symptom of a larger problem," Dershowitz said of Mosby. "Black Lives Matter is endangering the fairness of our legal system. Because they're rooting for outcomes based on race."
I differ with Prof. Dershowitz on only a few items.
First, I'm not so sure the police didn't commit any criminal conduct. I simply don't know at this point. The publicly available evidence is equivocal.
Second, I doubt Ms Mosby initiated this prosecution to ward off the rioters. More likely, she undertook it to advance her ideology and, in particular, her political ambition.
Third, I think Dershowitz is misguided in conflating a "politically motivated" prosecution, which this certainly was, with a "malicious prosecution." They are not the same thing. This is easy to see in, for example, the prosecution of the Boston Marathon bomber, Dzhokhar Tsarnaev, and the decision to seek the death penalty against him.
Seeking capital punishment was popular with the country, so one might plausibly accuse Eric Holder of being "politically motivated" in approving a capital charge. But, because the prosecution is an arm of one of the two political branches, it is, within limits, properly influenced by popular will. (Indeed, this is at the core of my view that elections, not courts, should check allegedly "unfair" prosecutorial tactics). In addition, given the grotesque facts of the bombing, the death penalty was warranted on the merits. Thus, its political appeal notwithstanding, seeking it could not be branded a "malicious" prosecution.
Since there is a reasonable basis for thinking that some of the Freddie Gray officers may have committed crimes, their prosecution likewise is not malicious. But make no mistake, Prof. Dershowitz is spot on in thinking it reeks.
"Indeed, this is at the core of my view that elections, not courts, should check allegedly "unfair" prosecutorial tactics)."
The democratic process should be a check, but certainly, the judiciary (in its capacity to monitor members of the bar can, and should, check prosecutorial abuse.
"Since there is a reasonable basis for thinking that some of the Freddie Gray officers may have committed crimes, their prosecution likewise is not malicious."
The prosecutors in the Nero case should be disbarred. The theory of assault liability for Officer Nero is a joke piled on a joke. The theory of other criminal liability for Officer Nero was Kafka-esque. I wasn't aware that we should, because "some" officers "may" have committed a crime, sweep up those who clearly did not. There was NO justification for charging Officer Nero. None.
-- The problem with allowing courts to "check" prosecutorial "abuse" is three-fold. First, the judicial and executive branches are supposed to be co-equal; if one can punish the other, equality is at an end. Second, while some kinds of "checks" would be uncontroversial (like a small fine for being late to court), I'd want to know what all is built into the concept of "checking." Third, similarly, I would want to know what's built into the concept of "prosecutorial abuse," how it gets defined, and how errors in its definition would be corrected.
-- As is probably clear from my post, I think Ms. Mosby ought to be in another job. Mixing politics (much less racial politics) with the power to prosecute is a poisonous brew. I also think she's a grandstanding amateur and a self-important ideologue.
My problem is that she holds a directly elected position. Because of separation of powers issues (see above), I think it's problematic to allow the courts to effectively undo an election.
As with Dershowitz, I think the Nero prosecution was an abuse of executive (and specifically prosecutorial) power. But living with it is the lesser evil when the alternative is having the judicial branch become even more of a menace than it is now. The correct remedy for Ms. Mosby is not disbarment but impeachment -- either that or for popular will to force her resignation.