Baltimore's Mosby, Facing Disbarment, Caves On One Count

WASHINGTON - July 7, 2016 - PRLog -- Baltimore State's Attorney Marilyn Mosby, facing several serious ethical complaints which could lead to her disbarment, and civil law suits by five of the six officers she is prosecuting over the death of Freddie Gray, has agreed to drop one of the two misconduct charges against Lt. Brian Rice.

Rice still faces charges of assault, reckless endangerment and a remaining charge of misconduct in office.  All seemingly stem from the fact that Gray was not buckled into the police ban for transport, and that Rice was the highest ranking officers involved - if only peripherally.

However the judge has already indicated that the mere failure to use seat belts - even if it violates police regulations - does not necessary constitute a crime, especially in the absence of any evidence of wrongful intent by an officer.

"Mosby may be concerned about avoiding the fate of Mike Nifong, the prosecutor who brought criminal charges against several Duke lacrosse players and then refused to drop any of them even when they became unwinnable," says public interest law professor John Banzhaf, whose formal complaint to the Attorney Grievance Commission of Maryland may have been at least one factor in this morning's decision.

Banzhaf played a role in bringing Nifong's criminal charges against the Duke lacrosse players to an end.  His disciplinary complaints against then-Congressman Barney Frank helped lead to his censure by the House; his similar complaint against then-Congresswoman Geraldine Ferraro helped to discredit her in the 1984 presidential election; and a law suit he orchestrated forced former vice president Spiro T. Agnew to return the money he had taken in bribes.

Nifong, who like Mosby violated legal ethics by continuing cases which he could not have reasonably believed he could win, and violated the constitutional rights of the defendants by denying them evidence to which they were entitled, was disbarred, forced into bankruptcy by civil suits filed by the accused, and eventually arrested, said Banzhaf, calling Mosby "Nifong in a dress."

Today's action doesn't end the threats of bar sanctions or of the civil suits already filed, but it may be aimed in part at minimizing the threats and the damages, said Banzhaf.

Initially bringing criminal cases where the evidence is weak might be excused as simply overly optimistic.  But continuing to pursue all of the charges after a judge has soundly rejected virtually all of her legal and factual arguments could be constitute ethical suicide, says Banzhaf.

Maryland Lawyer's Rules of Professional Conduct for attorneys requires that a prosecutor refrain from prosecuting a charge unless it is supported by probable cause, and national standards establish that a prosecution should proceed only if there is sufficient admissible evidence to support a conviction, he notes.

The judge has also held that prosecutors illegally withheld exculpatory evidence they were required to turn over to the defense.  This is a serious violation of the U.S. Constitution, as well as of Maryland's ethical rules which require that "the prosecutor in a criminal case shall: . . . (d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense," says Banzhaf, and could by itself lead to her disbarment.

JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW, Wash, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/ jbanzhaf@law.gwu.edu  @profbanzhaf