Mosby so far [With Comment by John]

Baltimore state’s attorney Marilyn Mosby has charged six Baltimore police officers with serious crimes in connection with the death of Freddie Gray on April 19. The New York Times account of the charges is here. The Washington Post enumerates the charges here and takes a look at Ms. Mosby here.

The charges quickly followed both Gray’s death and the rioting of the mob in Baltimore. Ms. Mosby’s announcement of the charges raises a concern whether some form of mob justice is at work. The Times reports:

The state’s attorney for Baltimore City, Marilyn J. Mosby, filed the charges almost as soon as she received a medical examiner’s report that ruled Mr. Gray’s death a homicide, and a day after the police concluded their initial investigation and handed over their findings. Officials had cautioned that it could take considerable time for her office to complete its own investigation and decide whether to prosecute.

The Post reports:

Michael Davey, an attorney for the Fraternal Order of Police in Baltimore, called Friday’s charges an “egregious rush to judgment.” He expressed skepticism that the investigation could be completed in two weeks when it involves six officers and charges that range from misconduct in office to second-degree murder.

Readers familiar with the Constitution might wonder if a grand jury shouldn’t be in the mix here. Reading news of the charges, I haven’t found any explanation of Maryland criminal procedure that provides the context for what transpired on Friday. With the proviso that I am not drawing on any expertise in Maryland criminal law or procedure, I want only to offer this brief note with a little additional background for readers who (like me) may be harboring questions in the back of their mind about what is happening here.

The Fifth Amendment to the United States Constitution provides: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury…” All of the charges filed against the Baltimore officers are felonies that would fall within the scope of the Fifth Amendment if the Fifth Amendment applied.

However, the Supreme Court has held that the grand jury provision of the Fifth Amendment does not apply to the states under the due process clause of the Fourteenth Amendment; the requirement of an indictment is not “incorporated” against the states in the Fourteenth Amendment’s due process clause. The Supreme Court case so holding dates to 1886, in the case of Hurtado v. California. Accordingly, states such as Maryland can authorize prosecutors to promulgate serious criminal charges by means of an information stating formal criminal charges rather than an indictment handed up by a grand jury.

The origin of the grand jury lies deep in English law. Respect for the protective function of the grand jury accounts for the inclusion of the requirement at the opening of the Fifth Amendment.

Commentators have criticized the historic role of the grand jury as mythical. Prosecutors, it has been frequently observed, can get a grand jury to indict a ham sandwich. See, for example, the comprehensive 1995 law review article by Professor Andrew Leipold, “Why grand juries do not (and can not) protect the accused.” The article provides extremely useful historical and legal background.

Grand juries may not live up to the role assigned to them in our law. That is to say, they may merely serve pro forma to bless charges sought by a prosecutor. Most criticism of the grand jury function at present derives from the grand jury’s failure to serve its putative historic function.

Some states have given prosecutors the option of avoiding the grand jury process and issuing charges themselves. Maryland has not eliminated grand juries — here is the Maryland grand jury handbook — but has authorized prosecutors to file charges themselves, subject to a preliminary hearing in district court to determine probable cause, if requested by the defendant within 10 days.

One commentator has recommended the preliminary hearing in lieu of the grand jury in the wake of Ferguson:

Half of states have already [eliminated the grand jury] and instead rely on preliminary hearings to be the means by which a prosecutor’s abuse of power is checked. Unlike the grand jury system, the preliminary hearing is completely transparent. It is recorded, the defendant is present (although does not present or contest evidence), and a judge decides if there is enough evidence to hold a trial. The standard is low enough so that the majority of charges, just like in the grand jury process, will result in an indictment.

Ms. Mosby herself wields the authority of the state in filing the criminal charges brought against the six Baltimore officers. As a prosecutor, she is subject to the Rule 3.6(A) of the Maryland Rules of Professional Conduct provides:

A lawyer who is participating…in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.

Rule 3.8(e) of the Maryland Rules of Professional Conduct provides:

The prosecutor in a criminal case shall…except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial statements that have a substantial likelihood of heightening public condemnation of the accused…

The video below gives us Ms. Mosby’s press conference announcing the charges. Our friend Bill Otis comments: “There is more than just a credible case that the state’s attorney is in violation of both rules.”

JOHN adds: It is interesting to compare the Gray case with the Trayvon Martin/George Zimmerman matter. In Zimmerman’s case, local authorities declined to prosecute Zimmerman because they believed–correctly, as it turned out–that it was a case of self-defense. So Florida’s governor appointed Angela Corey as a special prosecutor. Her politically-inspired mission was, rather obviously, to indict Zimmerman, which she did, without empaneling a grand jury. Her indictment was a blatantly political document, analogous to Marilyn Mosby’s press conference.

Time will tell how strong the charges against the police officers are, but I agree with Mosby to this extent: I would rather see the local prosecutor make a decision for which she will be accountable to voters, than defer to a special prosecutor who will lack such accountability and whose appointment may carry its own implicit political message.