Mimesis Law
25 July 2017

Marilyn Mosby: I Needed A Jury, Not Evidence

July 29, 2016 (Fault Lines) – Freddie Gray. When flames were licking around the city of Baltimore, his life was destined to symbolize a police force out of control and a people no longer willing to sit quietly and endure abuse. When Baltimore State’s Attorney Marilyn Mosby announced charges against the officers accused of killing Gray, his death was destined to prove the justice system could police its own.

None of this was to be. The case that began with an ill-advised press conference full of political pandering ended yesterday…with an ill-advised press conference full of political pandering.

Six officers were charged in the death of Freddie Gray. The first trial ended with a hung jury. The next three bench trials led to acquittals for three of the officers. Hypocritical legal theories, prosecutorial misconduct, and general shenanigans cursed the trials from the beginning.

There was little surprise when Mosby dropped the charges against the remaining officers Wednesday morning. More surprising was Mosby’s press conference after the charges were dropped. She displayed a stunning lack of self-awareness in announcing the dismissal of the charges.

Baltimore State’s Attorney Marilyn J. Mosby came out swinging Wednesday after she dropped the charges against the remaining police officers accused in the death of Freddie Gray, slamming the criminal justice system and saying police were too biased to investigate themselves.

 Mosby’s fiery press conference was certainly interesting, but ultimately disappointing. If she sought to convey a message of outrage, it came across more like a three-year old that didn’t get her way than a passionate prosecutor frustrated with the system. Sadly, she failed to understand her own role, and responsibility, in that system.

“If this defines my term as the state’s attorney, I’m OK with that,” Mosby told The Sun. “Because for me, my mission as a prosecutor was to seek justice over convictions, to make sure that we are holding everyone accountable regardless of occupation, sex or religion.”

Mosby is completely wrong. A prosecutor who evaluates cases based on evidence and appropriately applied laws is actually charged with seeking convictions over justice, not the other way around. Mosby admitted to the nation she was not looking for convictions. The only other explanation was that she was looking to appease the angry citizens of Baltimore.

That would seem noble, except it’s not. Prosecutors have a serious job that comes with serious power. And the way they wield that power is extremely important. Politics and criminal law don’t mix well. That’s been on full display as Mosby’s prosecutors keep spinning wilder legal theories and, not surprisingly, keep getting handed acquittals.

Mosby was defiant in announcing the dismissals.

“While to this day we stand by the decisions, the legal theories, the charges, and assertions set forth in the statements of probable cause and during these proceedings, as officers of the court we must respect the verdicts rendered by the judge,” Mosby said in a fiery speech held at Gilmore Homes, near where Gray was arrested last April 12.

Mosby may claim to respect the judge’s decisions, but in the same breath says she still thinks she was right and will do this again. So, people of Baltimore, assuming there is not another high-profile incident of police violence, who do you think she is going to do this to when the opportunity arises again?

But that’s not the real problem with Mosby’s press conference. What should make the citizens of Baltimore question Mosby’s credibility as a prosecutor were her comments on the process she couldn’t turn into convictions.

But she noted that in light of [Judge Barry] Williams’ consistent decisions to acquit the officer and given the likelihood that the three other officers would elect a bench trial, more acquittals were “unfortunately” in the offing.

Interesting. Sounds like Mosby has a problem with the judge. And with losing. But if your dumb ass was on the jury, she could have won.

She also expressed frustration that her office had no say in whether cases were tried before a jury or at a bench trial, i.e., before a judge.

It’s funny how hard it can be to screw with somebody’s constitutional rights when you don’t have power over those rights. Mosby seems to think she could have done better with a jury. A black trial judge who used to prosecute cops for civil rights violations; how did that go wrong? Seems fair trials can really put a damper on a case with no real evidence of criminal activity.

But a jury? Oh a jury. That’s what the Baltimore prosecutors really needed. Twelve good people who don’t give a shit about the law or truth. She thinks regular people would have been stupid enough to overlook all of the holes in the state’s case, the stretched legal theories, the hypocritical positions.

The sad thing? She is probably right. Our proud country that goes on and on about freedom and liberty and revolution seems to have a real problem questioning prosecutors, or the government in general. Most of the problems in our legal system, from the death of habeas corpus to wrongful convictions, can be traced back to people that just don’t care.

Mosby wants to have some say in a defendant’s trial because she trusts that jurors trust her office. They won’t see prosecutorial misconduct. They won’t know about hidden evidence. Jurors won’t see the hypocrisy of arguing that the same activity prosecutors repeatedly defend is all of the sudden a crime when it suits their purpose.

Putting aside all of the other issues related to Gray’s death, Mosby’s thoughts are a telling commentary on our jury system. A highly educated, experienced judge didn’t see a crime here. But you jurors might have. Because you are easy to trick. That’s the problem with our system. People’s overwhelming trust in the government.

Mosby points out that it’s just easier to convict people in front of a jury. That’s a problem. But it’s not a problem with the jury system. It’s a problem with the jurors.

8 Comments on this post.

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  • rob
    29 July 2016 at 9:07 am - Reply

    “A highly educated, experienced judge didn’t see a crime here.”

    How can anyone possibly believe that?

    How did he end up dead?

  • Andrew King
    29 July 2016 at 11:39 am - Reply

    Josh,

    I am not totally sure I understand what you mean by “A prosecutor who evaluates cases based on evidence and appropriately applied laws is actually charged with seeking convictions over justice, not the other way around.”

    Are you driving at that she really wanted the media circus and politically useful charges more than she wanted actual convictions?

    • Josh
      29 July 2016 at 12:47 pm - Reply

      Yes. I probably should have been clearer about that, but it would have veered off in to another post…

  • Furslid
    29 July 2016 at 11:50 am - Reply

    How can it be a problem with jurors, but not the jury system? A well designed system has to work with available parts and people.

    If a bridge collapses because the design put more stress on a steel beam than steel beams can handle; that’s not a problem with shoddy steel. That’s a poorly designed bridge.

    If a factory can’t produce quality goods because it requires 4 straight hours of perfect concentration without blinking or bathroom breaks from the workers; it’s not a problem with the workers. It’s a poorly designed production process.

    If our jury system requires that 12 random citizens in their first trial experience be as impartial as a judge who passed law school, has their professional reputation on the line and deals with prosecutors every day; it’s not a problem with jurors.

  • bacchys
    31 July 2016 at 1:11 pm - Reply

    Unlike most cases, the judge actually applied the presumption of innocence. Because the defendants were cops.

    It’s interesting to me that Mosby acted in this case as her office acts in most cases, and was widely condemned for it by people who are otherwise silent when it comes to the vast majority of cases or outright deny it occurs.

    The knife Freddie Gray had was legal to possess. Yet thousands of people in Baltimore have convictions for possessing the same kind of knife. They have those convictions because, after being arrested, they are held at Central Booking for several days, given an excessive bail, and told if they plead guilty they’ll be out (with a misdemeanor conviction) quickly, but if they plead not guilty they’ll sit in jail for months upon months awaiting a trial.

    Which is likely what would have happened to Freddie Gray. For possessing a legal knife.

  • Daniel
    1 August 2016 at 1:35 am - Reply

    Josh says: “A prosecutor who evaluates cases based on evidence and appropriately applied laws is actually charged with seeking convictions over justice, not the other way around.”

    Actually, a prosecutor’s responsibility is to “see that justice is done,” not to obtain convictions. The prosecutor can fight hard to obtain a conviction but (supposedly) must play fair (not condoning police perjury, following the rules, disclosing exculpatory evidence, not stacking the charges to coerce a guilty plea, etc.)

    When the primary goal is to seek convictions rather than justice, more innocent people are prosecuted and more guilty people are let off, especially if they are a cop.

  • JIM
    2 August 2016 at 5:40 pm - Reply

    Elected Judges rely on the largest voting block in their jurisdiction, the police. Conflict of interest says that judges will bend over backward to help a cop. Many cops choose a bench trial. TN conditions the jury waiver to be approved by the prosecutor. Not Maryland?
    SCOTUS in Singer v US, 380 U.S. 24(1965)States there is no ‘Right’ to a Bench Trial.

  • RTFTLC | The Baltimore Mess
    18 August 2016 at 12:13 pm - Reply

    […] Mosby is running around insisting that if she’d only had a jury trial, she would have won (ignoring that the first jury deadlocked). She’s wrong: […]