At best, it is amateur hour.
At worst, the rash decision by Marilyn Mosby, the Maryland state’s attorney for Baltimore City, to bring an array of internally inconsistent charges, including murder, against a half dozen police officers in connection with the death of Freddie Gray is a frightening display of state complicity in mob justice.
Three of the arrested officers, including the one facing the most severe charge of second-degree murder, are African-American. We’d better hope that black cops’ lives matter.
I was attending a conference on Friday. It was thus my good fortune, when asked for a first impression of the charges, not to have heard Ms. Mosby’s embarrassing speech announcing them.
The chief prosecutor, in what can only be described as a gift to defense lawyers, proclaimed that she’d brought the charges to show not only “the people of Baltimore” but also “the demonstrators across America” that “I heard your call for ‘no justice, no peace.’” When I say this was embarrassing, I am not just making a stylistic critique that prosecutors should not speak like community organizers. It is a professional assessment.
Competent prosecutors charge crimes only when there is evidence sufficient to prove that specific laws have been broken. A government lawyer who publicly asserts that her case was brought for the purpose of dousing inflamed passions, satisfying political agitators, or even easing real suffering undermines the prosecution. It’s not just the wrong thing to do; it’s the dumb thing to do.
At the eventual trial, Ms. Mosby’s main audience is not going to be fawning journalists and anti-police activists. There are going to be experienced defense lawyers sowing doubt into the record, and a judge who instructs a jury that the case rises or falls on the strength of the evidence, not the “call for ‘no justice, no peace.’” When defense lawyers can use the prosecutor’s own words to show the jury that the mob, not the evidence, drove the prosecutor to file charges, the case is severely damaged. The prosecutor is apt to lose a case that should have been won.
So, if I had heard the speech, I would strongly have suspected two things: first, Ms. Mosby is in way over her head; second, her charging decision was driven by politics, not evidence. But I hadn’t heard the speech. All I had to go on was the breakneck speed at which charges were brought despite the case’s factual complexity, and the charges themselves, which spread quickly across the Internet after being disseminated by the prosecutor’s office. Based on this information only, I strongly suspected two things: first, Ms. Mosby is in way over her head; second, her charging decision was driven by politics, not evidence.
Procedures vary from jurisdiction to jurisdiction, but ordinarily when a person is arrested on something other than a grand jury indictment, the charges are accompanied by a narrative statement from an investigating police officer, usually under oath, explaining the probable cause for the offenses alleged.
In the case of the six officers charged in Mr. Gray’s death, however, there was no such document made publicly available.
Instead, we got only the list of charges. To get the narrative we’d normally expect from the state, we needed to turn to the New York Times, which usefully combined claims in Ms. Mosby’s speech with other information made public before charges were filed in order to develop a timeline of key events.
It appears that Ms. Mosby filed charges as soon as the medical examiner (ME) determined that Mr. Gray’s death was a homicide. But as I explained in connection with the death of Eric Garner after an altercation with police on Staten Island, an ME’s conclusion that homicide occurred is not a judgment that murder or even some lesser form of culpable killing occurred.
Homicide simply means death was caused by some course of conduct — conduct that could, in theory, be innocent. A competent prosecutor knows it is a long way from the ME’s pronouncement of homicide to a compelling case that murder has been committed.
Yet, Business Insider’s Peter Jacobs reports that the Baltimore Police Department was stunned by Ms. Mosby’s sudden announcement of charges on Friday. The BPD was still in what it considered the early stages of its investigation. Cops were working off a checklist of 145 investigative tasks to complete, and had plans to work through the weekend amassing additional reports for the prosecutor.
Ms. Mosby forged ahead without any of this information.
A competent prosecutor does not charge first and investigate later. That inevitably leads to gaps in the proof. Worse, it leads to inconsistencies in the charges filed. Those are a defense lawyer’s dream.
In a criminal trial, a prosecutor cannot get away with incoherence. Sometimes, the defense lawyer can: one day the defense is “mistaken identity”; the next, it’s “my client did it but he didn’t mean it”; the next, it’s “he meant it but he was coerced”; and so on. This is not an effective way to build credibility with the jury, but defense lawyers at least have a prayer of pulling it off for a simple reason: they have no burden to prove anything. Defense lawyers are in the business of knocking the case down. If counsel can convince just one juror to doubt the state’s case based on any one theory, no matter how cockamamie, there can be no conviction.
The prosecutor does not have that luxury. Prosecutors are in the business of building the case, for they bear the burden of proving it beyond a reasonable doubt. A competent prosecutor’s job, then, is to develop a coherent theory of guilt. This can only be done by subjecting the evidence to intense scrutiny before filing charges, and then charging the offense(s) that best fits the proof. That way, the case can withstand defense attacks. Juries tend to convict when they’ve gained confidence that the prosecutor knows what happened and proved it convincingly.
By contrast, juries acquit when the state makes allegations that collide with each other. You can hear the defense lawyers now:
If the prosecutor herself cannot figure out what happened here, how can you fair-minded ladies and gentlemen of the jury possibly conclude, unanimously, that there is proof beyond a reasonable doubt supporting a murder conviction?
In a serious, complicated matter, it can take a while for a prosecutor to figure out what happened and to charge the case accordingly. But it is a while worth taking: better to delay and get it right than undermine what may be a winnable case by filing something that suggests the prosecutor is more confused than convinced by the evidence.
To the contrary, Ms. Mosby has filed charges that convey four different theories of homicide.