All remaining charges against the police officers involving the death of Freddie Gray have now been dropped, as predicted by public interest law professor John Banzhaf.
Among the factors behind the decision were the previous rulings by the same judge which invalidated most of the prosecutors’ legal theories and found “no evidence” to establish key facts, the disbarment investigation now in progress against three of the major prosecutors and a similar threat for the new ones, and the almost impossible burden of a Kastigar hearing to show that the new prosecutors did not benefit from immunized testimony which also created a new ethics-investigation threat, says Banzhaf.
Banzhaf’s legal complaints seeking disbarment of Baltimore State’s Attorney Marilyn Mosby (along with another filed by a former prosecutor), Chief Deputy State’s Attorney Michael Schatzow, and Deputy State’s Attorney Janice Bledsoe on ethical grounds are being investigated by Maryland Bar Counsel.
Banzhaf had also threatened to file additional ethical complaints against the two new prosecutors, exposing them to the risk of attorney discipline, including even possible disbarment – the fate of former North Carolina’s Mike Nifong because he continued to prosecute Duke students for rape although he should have reasonably known he could not prove his cases beyond a reasonable doubt.
That the threat of disbarment for prosecutorial abuses is a very real one, says Banzhaf, was just brought home forcefully by the just-released decision of an Indiana judge to seek the disbarment of a prosecutor who – like those in the Gray cases – withheld exculpatory evidence, says Banzhaf. In the Indiana case, the prosecutor was also fired, says Banzhaf, who was also involved in Nifong’s downfall.
If today’s prosecution had gone forward, the prosecutors would have had to show – in what Judge Williams, the Maryland AG’s office, and the Court of Appeals all said was a “high bar,” and another judge called a legal “minefield”- that the new prosecution of Officer Miller is in no way tainted by Miller’s earlier testimony or anything derived from it.
However, this judicially mandated ignorance presumably includes being unaware of Judge William’s written verdict in the Nero case which quotes and refers to Miller extensively, especially regarding the circumstances under which Gray was apprehended and put into the van.
But since the charges against Miller also focus on the initial detention and subsequent arrest of Gray, and the judge’s written verdict in the Nero trial makes findings about these very events based in part on Miller’s immunized testimony, it’s hard to see how prosecutors Phelps and David could have read the decision and still meet the very strict requirements of Kastigar, says Banzhaf.
Banzhaf notes that the formal ethical complaints he and a former prosecutor filed against Mosby will not be dismissed, and must, by law, be investigated by Bar Counsel.