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Should Marilyn Mosby Be Disbarred?

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Al Regnery presents a strong case in behalf of the petition to disbar Baltimore State's Attorney Marilyn Mosby.  The points he makes below bear particular emphasis:

[Ms.] Mosby has done enormous damage to the jurisdiction that entrusted her with [her] office. First is the staggering increase in crime in Baltimore since the Freddie Gray incident - much of it attributable to the "Ferguson effect" of police reluctance to put themselves in danger of prosecution. She has also made it more difficult for other prosecutors to bring difficult cases, since she has generated distrust and suspicion of the justice system among her constituents. Even beyond that, however, is the damage she has done, and continues to do to the justice system itself, which relies on public trust and reliance, by the people affected by it, that it is run professionally, without bias, and without political interference.

The second and third points are especially telling, because they go to the long term, and thus less visible, consequences of Ms. Mosby's behavior.

The BLM movement often warns us that the system lacks the people's trust.  But I hear nothing from it when the most basic form of trust the public needs in prosecutors  --  that politics is out and law is in  --  is dumped over the side, replaced by a floridly political approach to wielding this awesome power.
That said, I have been reluctant to see Ms. Mosby disbarred, for several reasons.

First, she is a directly elected officer of the government, and democratic self-rule presupposes a willingness to live with democracy's inevitable and sometimes appalling mistakes. It also provides its own mechanisms for correction, e.g., the next election.

Second, disbarment is a function ultimately of Maryland's highest court, which (as I understand it), acts on the recommendation of the State Bar.  To have a popularly elected high officer of the executive branch removable by a supposedly co-equal branch leaves the co-equality in what seems to me to be a precarious position.

Third, it is somewhat unfair to think that Ms. Mosby should get the boot simply because of her Office's failure to convict.  As Justice Frankfurter once observed, "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 US 323 (1940). And of course there is the fact, often remarked upon on this blog, that a verdict of acquittal is not a finding of innocence.  It is a declaration by the trier of fact that it is unable to find the government proved every element of the offense beyond a reasonable doubt.  That's a long way from saying the defendant is "an innocent person."

That is especially so in this instance, because Maryland law is unusual in allowing the defendant at his sole option to avoid a jury and have his case decided by the judge alone. The advantage of this procedure was evident here; there was a mob mentality in the city that might more easily have swayed a jury than a judge. (The counterpart disadvantage is that it removes the jury  --  the community's voice  --  as the decision-maker).

Taken altogether, my inclination has been against disbarment.  That was, at least, until the most recent acquittal, the fourth consecutive instance in the Freddie Gray prosecutions in which Ms. Mosby failed to convict on a single count.  If she's following standard practice, she tried her strongest cases first, hoping to build momentum (and coax convicted officers to become government witnesses in subsequent cases). I am left to assume that her remaining two cases are even weaker.  Still, she refuses to dismiss them.  Ego is a powerful force.

Given her intransigence, her amateurism, her multiple chances and multiple failures, her grandstanding, her race-huckstering, her failure in one instance to provide exculpatory evidence when due, and her openly political bent, I now think the option of disbarment needs to be given serious consideration.

3 Comments

The answer is simple--look at the case against the bike cop. The theories of the case were surpassing bizarre, and there was not a whit of evidence to support a determination that there was probable cause to believe that Mr. Nero had committed a crime.

I agree that a price of citizenship is that one has to bear a prosecution that is unsuccessful, but that "price of citizenship" should not be extracted by those who operate in bad faith. (Bad faith, of course, is to be measured by adherence to the requirements of ethical rules.) As a lawyer, Mosby had the sacred obligation to keep the determination of probable cause separate from the community reaction. She trampled on that obligation and has embarrassed the legal profession.

Her minions should suffer no less punishment. Their obligation was just as sacred, and they fell down on it.

I couldn't disagree more with you on the issue of her position. A lawyer shouldn't get more slack because he or she is democratically elected.

Mosby should be held to account--perhaps in the context of a disbarment procedure, she can identify the probable cause.

Officer Nero is expected to suck a lemon for all he has suffered from a rigged process. That is an unacceptable state of affairs.

A couple of points. I agree with your sentiments, but not with all your conclusions.

1. I think lawyers who hold public power by virtue of elections should be deferred to by the judicial system to an extent private lawyers do not see, cf. Imbler v. Pachtman. This is especially true when the issue is a core prosecution function like the decision whether to bring charges. Otherwise, the separation of powers is in big trouble. If an unelected court can, without a check by the other branches, remove an officer of an elected branch, the equality of the branches has come to an end.

2. The case against the bike cop had nothing going for it except that he was the highest ranking officer on the scene, and that is not even arguably enough to bring charges, you're right about that.

3. One thing I think you're missing is that, given the makeup of the Maryland bar and Supreme Court, it's more likely that Ms. Mosby would be vindicated than removed. Indeed, I'd bet a goodly sum that she would not be disbarred.

She represents what is to my way of thinking a poisonous ideology, but it may well hold a majority in Maryland. At the minimum, it's a strong minority. The most that would happen is that the Court would admonish her; I've got $500 that says she does not get disbarred.

A slap-on-the-wrist ruling would fortify her position and effectively ratify her behavior. This is not what either of us wants. With the murder rate skyrocketing in Baltimore, she is cooked if there's a primary challenge from someone closer to the political center than she is. That is what I think should happen. She should leave a loser rather than a martyr.

RE: prosecutorial discretion, I agree that prosecutors get to use it--but where it is little better than an instrument of tyranny (as it was with the bike cop, Nero, who was not the highest ranking officer), then it's simply not acceptable that the prosecutor simply gets to go on with her life. Society does not have the moral right to ask Officer Nero to simply accept what happened to him.

I don't think that elections insulate lawyers from the rules of ethics. Nifong was disbarred, and I don't see how he was that much worse than Mosby.

Maybe the Maryland bench ignores its duty. Maybe it doesn't. But this woman should NEVER practice law again. EVER. As I say, the society owes Nero a duty to ensure that happens.

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