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credit: npr.org

credit: npr.org

As I’ve previously written (the Freddie Gray archive is available here), Prosecutor Marilyn Mosby has, after publicizing the Freddie Gray case in the most unethical and unashamed ways, filed a motion asking the judge to prevent the defense from releasing any information relating to the case. The judge’s decision has finally come down, via Reuters:

A Maryland judge has denied a prosecutor’s request to keep lawyers for police charged in the death of a man in April from publicizing evidence before the trial, the Baltimore Sun reported late on Monday. [skip]

Mosby said she was concerned that defense lawyers would leak only evidence that supported their clients’ defense, jeopardizing the chance for a fair trial.

Hmm. Isn’t that more or less what defense attorneys are supposed to do? Zealously defend their clients? And doesn’t Mosby have the advantage of a media-supported social justice narrative, the support of the Federal DOJ and the Obama Administration, and all of the resources of the State of Maryland on her side? Why yes, all of that is true. Also true is the fact that the defense has no obligation (with some notable exceptions in the law) to say or do anything that would tend to convict their clients.

What Mosby is not saying–though she is probably too inexperienced to realize this–is that defense attorneys, unless they are themselves unethical, win at any cost, hate the system radical types, tend not to publicize anything about their cases. they want their theories and methods to be a surprise to the prosecution. In this case, it seems the defense has spoken only in response to Mosby’s public pronouncements, and only to try to lessen their prejudicial effect.

Judge Barry Williams on Monday rejected Mosby’s request without scheduling a hearing, the Sun reported.

‘There simply is no basis in the assertions presented to the court for the broad and extraordinary relief sought in the motion,’ the newspaper said, quoting his ruling.

Williams said prosecutors had turned over evidence to defense lawyers by a June 26 deadline, and no evidence had been leaked since then.

I suspect Judge Williams understood that Mosby was making this motion primarily to cover up her lack of evidence and to prevent anyone from discovering evidence that undermines her pathetically weak case. That said, he’s correct that there was no reason to support her motion on the law or the facts. There are other stories that support my conclusions, such as this one from The Baltimore Sun:

credit: jetmag.com

credit: jetmag.com

Attorneys for six Baltimore police officers charged in the arrest and death of Freddie Gray said in a court filing Thursday that prosecutors either failed to turn over evidence or lied about conducting a thorough investigation into Gray’s death.

The evidence already provided by prosecutors is ‘completely devoid of any information obtained during the course of the State’s investigation,’ the defense attorneys said, leading them to conclude that ‘either the State is withholding the information from its investigation, or there was no investigation.’

‘Knowledge of which of these alternatives is true is essential to the Defendants’ ability to prepare a proper defense,’ the attorneys wrote in their motion.

This is an eminently reasonable motion completely backed by law. Any information gathered as part of an investigation that resulted in charges is discoverable. There are exceptions, such as attorney work product, but that’s not the issue here, as much as Mosby would like to use that exception to try to confuse the public. Mosby, since the beginning of this case, has claimed that she engaged her own investigators and the local Sheriff’s office, bypassing the Baltimore Police, to conduct an independent investigation:

credit: baltimoresun.com

credit: baltimoresun.com

Baltimore State’s Attorney Marilyn Mosby has said her office conducted an independent investigation into the death of Gray…

The defense motion represents the latest effort by the officers’ attorneys to compel Mosby’s office to provide them with documents, emails, text messages and other evidence from its investigation. Mosby said her office investigated with the help of Baltimore sheriffs, separately from a police probe into Gray’s death.

Prosecutors are required by law to share any ‘exculpatory’ evidence that would help clear a defendant of charges, and the defense said it is ‘difficult to imagine’ that nothing in the state’s investigation was ‘in some way exculpatory to at least one of the Defendants in this case.

The Wex Legal Dictionary defines Exculpatory Evidence as: 

Evidence, such as a statement, tending to excuse, justify, or absolve the alleged fault or guilt of a defendant.

The Supreme Court case involved is Brady v. Maryland (1963). Wex notes: 

The Brady Rule…requires prosecutors to disclose materially exculpatory evidence in the government’s possession to the defense. “Brady material” or evidence the prosecutor is required to disclose under this rule includes any evidence favorable to the accused– evidence that goes towards negating a defendant’s guilt, that would reduce a defendant’s potential sentence, or evidence going to the credibility of a witness.

If the prosecution does not disclose material exculpatory evidence under this rule, and prejudice has ensued, the evidence will be suppressed. The evidence will be suppressed regardless of whether the prosecutor knew the evidence was in his or her possession, or whether or not the prosecutor intentionally or inadvertently withheld the evidence from the defense. The defendant bears the burden of proving that the undisclosed evidence was material, and the defendant must show that there is a reasonable probability that there would be a difference in the outcome of the trial had the evidence been disclosed by the prosecutor.

Note that the Brady rule essentially requires the prosecution to turn over anything that might be exculpatory. Unethical prosecutors–just as Mosby is doing–commonly try to skirt Brady by claiming that a given piece of evidence isn’t exculpatory, or that they didn’t know they had it, but that’s no excuse. If prosecutors can unilaterally decide what is and isn’t exculpatory, and withhold it, Brady can’t be said to have any effect. Certainly, the defense too bears a burden, but where withholding of exculpatory evidence is willful, particularly after the Duke Lacrosse case where being “nifonged” commonly sums up such unethical prosecution behavior, prosecutors tend not to take the chance.

According to court filings, prosecutors have turned over an estimated 52 gigabytes of digital files, including thousands of pages of the officers’ emails and dozens of surveillance videos.

This is a common ploy of politicians and unethical prosecutors. “We’ve turned over ten thousand documents! What more do your want?” Hillary Clinton, for example, is claiming to have turned over some 55,000 e-mails. It’s not the number that matters, but the content. Mrs. Clinton turned over only the e-mails she wanted people to see, not all of them. She doesn’t get to decide. The same must be true with Mosby.

Other than one witness interview by an investigator in Mosby’s office, the defense attorneys said, they have not received ‘a single document, witness interview, report, recording, or even mention of a shred of evidence procured through’ the independent investigation.

Obviously, this is outrageous. There can be no reasonable grounds for withholding the materials produced in this investigation, particularly since Mosby claimed that the charges were based on the results of that investigation. Presumably, she will use that information in prosecuting the case? If so, the idea that she can simply declare that none of that information is exculpatory is not only absurd, but calls into question her legal acumen and fidelity to the rule of law.

The officers’ attorneys first asked the court to issue a subpoena this month for records they believe haven’t been disclosed to them, claiming investigative files had been left out of discovery that the prosecution shared with the defense in June.

Prosecutors responded last week by saying that they turned over all the evidence that the defense is entitled to under the state’s discovery laws, and that they aren’t required to give the defense internal communications and other work products of prosecutors who are building a case against the officers.

Without investigation reports and other results, there would be no attorney work product, which is generally understood to be discussion about the evidence and how it is to be interpreted and used.

[The Defense] contend that Mosby’s investigation, like one conducted by police, was aimed at determining whether there was cause to file criminal charges. That makes it subject to discovery, unlike internal prosecutorial discussions or strategy sessions, they said. Prosecutors ‘chose to blur the lines’ between investigative and prosecutorial actions, they said, and shouldn’t be allowed to hide behind an attorney work product privilege.

‘Unquestionably, if the information sought by the Defendants had been gleaned by any other investigatory entity, such as the Baltimore Police Department, the State would have no standing to defend the nondisclosure,’ defense attorneys wrote.

What’s happening here is why prosecutors do not themselves investigate crimes. Unlike on TV, they don’t interview suspects, because to do that makes them witnesses. As the defense is claiming, it blurs the line between investigators and prosecutors, and raises all manner of legal issues that unnecessarily complicate any prosecution.

The prosecution can’t investigate the case and then turn around and claim a work product exception for their investigation because they’re also prosecutors.

On May 1, Mosby cited her office’s ‘comprehensive, thorough and independent investigation’ when she announced charges against the officers. Standing on the steps of Baltimore’s War Memorial, Mosby said her team ‘worked around the clock — 12- and 14-hour days’ to interview witnesses, watch video footage of Gray’s arrest and videotaped statements to police, review Gray’s medical records, and survey the police van’s route.

credit: Annie Lebowitz for Vogue

credit: Annie Lebowitz for Vogue

If true, Mosby has made an incredible mess of this case. Another primary reason prosecutors don’t investigate crimes is they are incapable of doing it properly. Americans raised on police dramas think investigating crimes is easy; anyone can do it. It’s far from easy, and the skill sets involved in being a detective and in prosecuting crime, while having some intersections, are very different indeed. Mosby has shown herself to be spectacularly unqualified to be a prosecutor. Obviously, she knows less about police work.

David Jaros, another University of Baltimore law professor, said defense attorneys make a compelling argument that the work conducted by prosecutors is not privileged and must be turned over. He said the question before Judge Barry Williams, who will rule on the motion, is not whether the investigation occurred — but at what point the prosecutors stopped ‘acting like police officers’ and started crafting their case against the officers.

Mosby seemed to acknowledge in her statements at the War Memorial that her office conducted its investigation ‘to determine whether or not a crime had been committed, not to build a case against someone after they have determined to bring a charge,’ Jaros said. That means she can’t claim work conducted by prosecutors is protected.

Jaros said the defense likely believes ‘there is a lot in the file and they would like to see that evidence, both to better understand the prosecution’s theory in the case, which would not be a good reason to get it, or because they are trying to find evidence that is exculpatory, which they can then use in their defense.

A “theory of the case,” is essentially how the prosecution plans to prove each offense, the tactics and methods they’ll use. Remember that in order to prevail, the prosecution will have to prove, for each charge for each officer, each individual element of each offense. Judging by the prosecution’s Xeroxed probable cause statements, Mosby doesn’t have a prayer. What is most likely is that Mosby has begun to understand this–one would hope more experienced prosecutors in her office are telling her the truth–and is hoping to find actual evidence before trial, or is trying to string out the proceedings as long as possible for political reasons. It is also highly likely that Mosby’s investigation does not contain sufficient evidence to sustain the charges, and perhaps–in this case, even likely–it contains substantial exculpatory evidence that would disprove them. Media reports of their arguments are suggestive: 

Prosecutors in the Freddie Gray case say defense attorneys are not legally entitled to records from their investigation of his death, and have provided no compelling reason why they should receive them.

Attorneys for the six police officers charged in Gray’s death are asking a judge for a subpoena to compel the office of State’s Attorney Marilyn J. Mosby to hand over the records.

In a new court filing, prosecutors said such an order ‘clearly intrudes on privileged work-product and executive branch deliberative processes’ that occurred within Mosby’s office during the investigation, and could compromise the case.

This bit of timing is important:

Mosby received the results of a police investigation of Gray’s death on April 30 and announced charges against the officers the next morning. She said her prosecutors, in collaboration with the Baltimore sheriff’s office, had conducted a ‘parallel’ investigation of their own, working ‘around the clock — 12- and 14-hour days’ — to interview dozens of witnesses, watch hours of video footage, listen to hours of police videotaped statements, survey the route of the police van in which Gray was injured and review medical records.

As Prof. Jaros suggested, this is Mosby trying to act as both investigator and prosecutor, while keeping the prerogatives of both.

The officers’ attorneys said this month that they had received no evidence from Mosby’s investigation, and asked a judge to force her office to hand over documents including witness statements, emails, voice mails, text messages and other communications between Mosby’s office and law enforcement agencies including the sheriff’s office, Baltimore police and the office of the chief medical examiner.

Generally speaking, most, if not all, of this would not clearly be work product.

Attorney Billy Murphy Jr.

Attorney Billy Murphy Jr.

They also asked for communications between Mosby’s office and the offices of Mayor Stephanie Rawlings-Blake and attorney William ‘Billy’ Murphy Jr. [a fawning Washington Post profile of Murphy is available here], who is representing the Gray family. They say they believe all of the records ‘will be relevant and necessary to the defense in this case.

These requests are a bit more iffy. The defense would probably be asked, particularly in the case of Murphy, to cite more specific reasons for believing they are entitled to that information.

The defense request for internal records, the prosecutors said, constituted ‘an abuse of the subpoena power’ granted to them as officers of the court.

‘In addition to the Defendants’ open abuse of this Court’s compulsory process — whether characterized as an impermissible fishing expedition or a bad-faith attempt to burden the State with duplicating discovery — the Defendants’ improper request for information reaches wildly beyond the scope of authorized production’ of evidence,’ the prosecutors wrote.

A fishing expedition would be involved if the defense simply demanded everything they haven’t been given, but think the prosecution might somehow have. In this case, the prosecution actually and publically claimed to have a substantial body of evidence it had a direct hand in producing, and upon which it relied in its charging decisions. Surely such evidence will be used at trial. In this case, the prosecution has already landed the huge, gasping fish, and they’re trying to hastily throw a tarp over it while pretending it isn’t there.

Final Thoughts:

As I’ve often observed, competent, professional prosecutors want the defense to have every scrap of exculpatory evidence they have, and often, even more. If they have a solid case, and they won’t file charges in the first place if they don’t, the information turned over to the defense will only tend to make the defense eager for a plea bargain, saving the public a great deal of time and money. Incompetent, unethical prosecutors do the opposite. They obfuscate and hide evidence and do everything they can to harass the defendant and their attorneys and to delay the process and fair administration of justice.

Just as in the Trayvon Martin case, Mosby and her prosecution team continue to act as do the most unethical, stereotypically ponytailed defense attorneys. The defense, on the other hand, continues to behave ethically and professionally, in the best interests of the fair administration of justice.

As always, I continue to be open to discovering evidence that would tend to demonstrate the guilt of the officers charged. Should that eventually appear, I will, of course, report on and analyze it. However, for the moment, there is more than sufficient reason to continue to believe that these charges should never have been brought, and that there is not nearly sufficient and legitimate evidence so sustain them.

In the meantime, this case is doing nothing to improve race relations, in Baltimore, and in our increasingly racially wounded nation.