Prosecutors dropped all remaining charges against three Baltimore police officers accused in the arrest and death of Freddie Gray in a downtown courtroom on Wednesday morning, concluding one of the most high-profile criminal cases in Baltimore history.
The startling move was an apparent acknowledgement of the unlikelihood of a conviction following the acquittals of three other officers on similar and more serious charges by Circuit Judge Barry G. Williams, who was expected to preside over the remaining trials as well.
It also means the office of Baltimore State's Attorney Marilyn J. Mosby will secure no convictions in the case after more than a year of dogged fighting, against increasingly heavy odds, to hold someone criminally accountable in Gray's death.
Officer William Porter's trial ended with a hung jury and a mistrial in December, before Williams acquitted Officers Edward Nero and Caesar Goodson and Lt. Brian Rice at bench trials in May, June, and July, respectively.
This was the right thing to do, morally and legally. The power to prosecute is too potent to be used as a political or social tool. Legally, the case just wasn't there. And, as a practical matter, Ms. Mosby might have side-stepped a disbarment proceeding as the result of today's exercise in prudence.
Let's hope she hasn't side-stepped a disbarment proceeding. Her conduct (and that of those in court) has been outrageous. From what I can tell, there is no probable cause in any of these cases. That, coupled with her inflammatory statements, leads to the conclusion that she did all of this in bad faith and with willful disregard of her obligations as a prosecutor.
There is no satisfactory answer to the moral claim of these officers on some sort of punishment for Ms. Mosby. Why should they just have to suffer with her simply getting to go on with her life? We, as a society, don't have the right to demand that.
I think, personally, a lot of people have this sort of genteel view that judges, prosecutors etc. shouldn't have to bear the full consequences of acts taken to abuse the rights of others. I wholeheartedly reject that idea. Prosecutorial immunity should come with a commitment on the part of the bar authorities to rigorously police prosecutors like Mosby.
Right now, as I write this, a group of attorneys general is abusing the rights of so-called climate skeptics. Nothing will happen to these bar-approved petty tyrants. That is an unacceptable state of affairs and contributes to the general thuggishness and coarseness of our society.
And, in a society becoming more thuggish and coarse, the temptation, and even the morality, of taking the law into one's own hands becomes greater and greater.
"Wisdom too often never comes, and so one ought not to reject it merely because it comes late." Henslee v. Union Planters Nat'l Bank & Tr. Co., 335 U.S. 595, 600 (1949) (Frankfurter, J., dissenting).
Mosby's post-dismissal presser is appalling.
Indeed it is.
I think I'm going to have to do a new entry titled, "Marilyn Mosby Flubs the Message."
She makes serious charges. The problem is that she has compromised her credibility, so no one is going to believe her.
Let's have bar hearings.
"Let's have bar hearings."
Let's not. Having state bar panels second-guess decisions to prosecute is a dangerous road to start down. State bars are heavily biased against the law enforcement side, and once we start on that road we will surely see dedicated prosecutors sanctioned for bringing charges that were justified but Politically Incorrect.
Kent makes a good point here.
State bars run according to the preferences and interests of the states' lawyers. Criminal defense lawyers vastly outnumber prosecutors, and their voices dominate within the bar.
What is going to happen is that state ethics rules will get created, and existing ones interpreted and applied, in a way that will amount to a defense-rigged code of criminal procedure. Rules of criminal procedure they can't push through at present will show up as "ethics rules," and we're all for ethics, right?
Let me give you two examples. First, it will be an "ethical requirement" to allow defense counsel in the grand jury room. What that means is that the mob defendant will have a ready list of government witnesses his "associates" need to "visit" to "discuss" their recollection.
Another would be that it will be an "ethical requirement" that the prosecutor refrain from "violating internationally recognized human rights" -- therefore he can never seek the DP, even when authorized by years of state law and practice.
I could go on and on. Once the defense bar gets this kind of leverage over its opposition, only its florid imagination places a limit on the strangulation of criminal procedure it will pass off as "ethical" requirements.
(One more to illustrate the absurdity of it: "It shall be unethical, as fundamentally unfair, for a prosecutor to attempt to overwhelm an indigent defendant by calling more than two witnesses for the state.").
The problem, ultimately, in my view, is that one has to look at what the categorical imperatives are. Quite bluntly, in this particular case, I don't really care what the possible ramifications. At least one of these cops were subjected to a criminal trial without probable cause. That is an ethical violation under current rules.
At the end of the day, prosecutors get immunity. OK fine--but that means when they do serious wrong, they need to be held to account. To bring up one notorious case--Mike Nifong. For his own political ends, he wanted to send completely innocent people off to prison for decades, and he tried to do just that. One day in the slammer just isn't enough. Now, in his case, he was disbarred, and the defendants were paid handsomely, but he did not suffer the punishment he should have.
What Mosby did, under any system of ethics, rules is simply not supposed to happen. The idea that she should keep the privilege of a law license, seems to me, simply wrong. She tried to ruin Officer Nero's life in a patent abuse of power. Society, in my view, owes to him to punish this woman.