The decision of Baltimore State’s Attorney Marilyn Mosby to drop charges against all officers involved in Freddie Gray’s death had been predicted by public interest law professor John Banzhaf who notes that she may have had ulterior motives and may have committed defamation, and that the decision may have wide ranging ramifications on civil law suits and disbarment actions already filed against her, as well as on police and prosecutors in other jurisdictions.
First, he notes that, had the prosecutions continued, she and several other Baltimore prosecutors would have been forced to testify regarding their communications. In this hearing, she and/or the others might have been forced to make admissions under oath which could be harmful in the civil law suits brought against five of them, in the bar disciplinary investigations now underway regarding three of them, or even her political career. Thus, maybe this retreat was designed to prevent any such disclosures, suggests Banzhaf.
Second, at this hearing the two new prosecutors – Assistant state’s attorneys Lisa Phelps and Sarah David – would have to prove that each knows nothing about the testimony which officer Miller was required to give in an earlier case, since none of his testimony in that proceeding, nor anything derived from it, can be used against him in his own trial.
However, this judicially mandated ignorance presumably includes being unaware of Judge William’s written verdict in the Nero case and others which quote and refer to Miller extensively. In it he ruled that many of the legal theories prosecutors relied upon are invalid and could not be relied upon and that, with regard to key factual elements, there was simply “no proof.”
Not knowing about crucial damaging rulings cold make it impossible for them to meet Maryland Lawyer’s Rules of Professional Conduct [RPC] which require that a prosecutor refrain from prosecuting a charge unless it is supported by probable cause, and national standards which establish that a prosecution should proceed only if there is sufficient admissible evidence to support a conviction.
Thus the new prosecutors – aware that disbarment complaints had already been filed against three prosecutors, and not willing to risk similar threats for failing to meet their ethical obligations because of the mandated ignorance of the judge’s prior rulings – may well have signaled to Mosby that they were not prepared to proceed.
Third, Banzhaf suggests that this decision strengthens the civil suits already filed by five officers, and cry out for amendments to include charges of “malicious prosecution” and “abuse of process.” Similarly, it strengthens the case for disbarment for virtually admitting that there was no chance of a conviction.
Fourth, since many believe that Mosby enhanced her political career by bringing criminal charges which resulted in many changes at the police department – a theme she emphasized in her press conference – other prosecutors in troubled cities will be encouraged to do the same, even with no chances of success. That’s why the deterrent effect of bar discipline and the civil suits could be so very important.
If other prosecutors likewise press unsubstantiated charges, police are likely to be further discouraged from doing any policing other than the bare minimum, exacerbating what has been called the “Ferguson effect” which is allegedly leading to dramatic increases in violent crime in many inner cities.
Finally, suggests Banzhaf, Mosby seems to have committed defamation when she accused police of “creating videos to disprove the state’s case without our knowledge.” Creating false evidence to be presented in a court is a serious crime, and there appears to be no evidence to substantiate it, claims Banzhaf.
