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October 18th, 2017

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Is Baltimore's Mosby Seeking Justice or Something Else?

David Limbaugh

By David Limbaugh

Published May 8, 2015

Is Baltimore's Mosby Seeking Justice or Something Else?

It is the prerogative of Baltimore City State's Attorney Marilyn Mosby to prosecute the police officers involved in the incident that led to the death of Freddie Gray if the facts and law warrant it, but I am concerned that Mosby is pursuing something other than criminal justice.

I say this based on her apparent rush to file these charges, some of her comments and assurances in her prepared statement, and what appears to be a gross overcharging of these officers.

We were initially led to believe that the decision to prosecute wouldn't come so quickly, but then, almost out of the blue, she filed this raft of charges within 24 hours of obtaining the police department report against all six officers, three of whom are black — a fact I mention only because we are being forced to view this case, as we are with so many others, through the prism of race.

Many experts have stated that they believe Mosby overcharged the officers. Some pundits have cynically excused possible overcharging on the grounds that it can be an effective tool to encourage the defendants to point fingers at one another, which would enhance the state's case.

I don't understand such cynicism, such casual disregard for the principle of justice and the rights of the accused. We are not talking about an episode of "Chicago P.D.," where as audience members we might be sympathetic with aggressive police and prosecutorial actions to corner bad guys. We are talking about American jurisprudence, the Constitution and the principle of blind, impartial justice.

We have an adversarial legal system in the United States, which seeks justice through two competing sides fighting as hard as they can, within the rules of ethics and under the constraints of the law, to win their respective cases. It's not that truth isn't the primary aim; it is. The theory, in the words of the United States Supreme Court, is that "truth is best discovered by powerful statements on both sides of the question."

Some may not realize this, but in most jurisdictions, there is a partial exception to this practice in criminal prosecutions. The prosecutor's job is not to seek the harshest penalty she or he can in a given case but to seek justice. The American Bar Association's Criminal Justice Standards state, "The duty of the prosecutor is to seek justice, not merely to convict." The prosecutor is certainly not supposed to seek any other kind of justice than criminal justice or use her power to respond to political pressures.

Criminal defense attorney Steven Levin disputed Mosby's leap to conclude the officers lacked probable cause just because Gray's knife was a legal knife, but he objected even more strenuously to her decision to criminalize the arrest (with a charge of false imprisonment against the officers), even if they did lack probable cause. "The law provides a remedy if the officers are wrong, and that remedy is dismissal of charges" against the person being arrested, said Levin.

Levin also believes that it's going to be very difficult for the state to make its case of manslaughter by vehicle, which will require it to prove that the officer drove the vehicle in a grossly negligent manner and that such negligence caused Gray's death.

In addition, The Daily Caller is reporting that investigators with the Baltimore police task force investigating this case did not expect Gray's death to be ruled a homicide and that they believe Mosby's charges are not supported by the evidence. Mosby's second-degree murder charge against the driver, Caesar Goodson Jr., is especially suspect because it will require the state to prove he was acting with a depraved heart. The task force reportedly believed that manslaughter would be the highest charge made against any of the six officers.

Questions of overcharging aside, I am concerned with some of Mosby's comments in her prepared statement announcing the charges. She said "to the people of Baltimore and the demonstrators across America": "I heard your call for 'No justice, no peace.' Your peace is sincerely needed as I work to deliver justice on behalf of this young man." She repeated it. She also said, "to the youth of (Baltimore)": "I will seek justice on your behalf. This is a moment. This is your moment."

I think it's quite regrettable that she stressed twice that she had "heard" the threats of lawless people of "No justice, no peace," even though she urged them to be peaceful while she worked to deliver them justice. There was no condemnation of their violence, their injuring 20 police officers or their causing millions of dollars' worth of property damage — only a request that they refrain, for now. What if the officers are acquitted? I've already seen predictions of future violence should that occur.

Her promise to seek justice on behalf of youths was also curious because justice is not some political or social cause, and it is on behalf of not a select group of society but society at large. This should not be their moment. It's one thing for people to speak this way casually, but I believe that it was improper for her as a prosecutor to take this approach, especially considering that the people she seemed to be addressing were those who had wreaked havoc on the city, doing untold damage to the system of justice itself. Will she bring any of them to justice, or will she reward their lawlessness? It was almost as if she was sending them a signal that she was rewarding them for their violence. What a terrible and irresponsible message to send lawbreakers.

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David Limbaugh is a columnist, author and attorney practicing in Cape Girardeau, Mo.

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