GWU Law Professor Files Ethics Charges Against Prosecutors In Freddie Gray Case

Banzhaf_JohnSome of us have been critical of the changes brought by State’s Attorney Marilyn J. Mosby in the death of Freddie Gray. As we have seen in past high-profile cases, the prosecutors over charged the case against various defendants with very little evidence. The result has been a series of acquittals. Now, my GWU colleague Professor John Banzhaf III has taken that controversy to a new level with the filing of complaints seeking disbarment with the Maryland Attorney Grievance Commission against Mosby, Chief Deputy State’s Attorney Michael Schatzow and Deputy State’s Attorney Janice Bledsoe. He alleges that these prosecutors knowingly brought charges without a sufficient evidentiary basis.

Gray, 25, suffered a spinal injury in a ride in a police van after his arrest in April 2015. He died a week later. Mosby and her staff secured charges against six police officers — three have been acquitted in trials before Circuit Judge Barry G. Williams. Williams has found insufficient evidence in past cases — a view shared by some commentators including myself.

Professor Banzhaf believes that the lack of probable cause is obvious but simply ignored by the prosecutors. His earlier complaint against Mosby called her a “runaway prosecutor.” He accused her of yielding to the demands of the mob rather than serving the interests of justice.

Banzhaf often includes students in his litigation, which has included groundbreaking reforms in combating tobacco use. His class on litigation is called “Sue the Bastards.” He is the founder of a smoking pressure group, Action on Smoking and Health (ASH). Even as a law student, Banzhaf was a fierce advocate. While still a student at Columbia Law School, Banzhaf wrote a note on copyrighting computer and software programs. It had never been done despite requests. While still a student, Banzhaf sought to register copyrights on two programs he had written. He became in 1964 the first person to register such copyrights. He later testified in Congress on the issue. Not a bad start for a law student.

Despite my respect for such public interest successes and my agreement on the lack of evidence in these cases, I remain skeptical about the chances of the bar complaints. I previously applauded bar actions against abusive prosecutors like Mike Nifong from the infamous Duke Lacrosse case. However, courts and bars afford considerable leeway in balancing evidence to support an indictment. Notably, Nifong was guilty of an array of unethical acts related to his public statements and conduct. The odds heavily favor the prosecutors in these complaints in my view.

What do you think?

71 thoughts on “GWU Law Professor Files Ethics Charges Against Prosecutors In Freddie Gray Case”

  1. Well, I hope Mosby is reading this blog. She now has a medical opinion from a pilot and can adjust her remaining prosecutions accordingly.

  2. @Steve Groen

    In Dec. 2014 Chief Justice Roberts, writing for the majority, declared that while the old maxim “ignorance of the law is no excuse” may have some “rhetorical appeal,” that it isn’t worthy of the Court’s serious consideration. In that case, a motorist was pulled over for a broken tail light, and was arrested after the officer found cocaine in his car. As it turns out, the officer was mistaken in his understanding of the law. North Carolina only requires one working tail light, not two. The Court found that the officer’s mistake was reasonable and upheld the legality of the traffic stop.

    “Ignorance of the law” has historically failed as a defense in malim in se offenses, where it is assumed that everyone knows, or should know, that it is wrong, for example, to kill someone or commit arson. But such is not the case in malim prohibitum cases, where a regulatory offense would not be something that one would necessarily be on notice of, for example, that failure to spay or neuter your pet is a felony in Virginia.

    1. TIN: Thanks for the information on ignorance of the law. Apparently, I’m ignorant of the law since Heien v. NC (2014). I don’t have time right now to delve into it, but I’ll get back to you. Assuming, however, what you wrote is true, it seems to me that a civil rights violation can be a malum in se, and CJ Roberts opinion that a LEO’s ignorance of the law – now characterized as a “mistake” – is a destructive double standard, with which I disagree. especially as applied to one who ought to know when he or she decides to violate the 4th and 14th Amendments without probable cause otherwise.

      Do you like having your electronic data placed in a superstorage facility in Nevada for later use against you? Oops. The government didn’t know it was a civil rights violation. It was just a mistake, so now it’s cool.. John Yoo with Alberto Gonzalez’s benediction says waterboarding’s cool, so that’s why we have black sites. Yep, ignorance is now an excuse.

      To see the issue in any other way invites abuse. How big of a mistake does it have to be to be outside the realm of reasonableness? Do we let a criminal court judge decide that in determining whether to suppress the fruits of the forbidden tree? The majority’s opinion was one huge step backward and away from constructive and reasoned constitutional lawmaking. Courts will misapply the ruling as often as not.

      J. Sotomayor’s dissent in Heien is what the the majority’s opinion should have been: Analysis of the reasonableness of the search should require application the facts as the LEO saw them to the “actual state of the law,” not what the officer thought it was.

  3. @randyjet

    IIRC, there was this little sharp pointed thingy called a KNIFE, that Freddie had on him which either violated a City Ordinance, or could reasonably have been believed to violate the ordinance, therefore providing probable cause.

    Trust me, nobody is missing Freddie Gray. Period. If he had been killed by another “brother” we wouldn’t even know his name. With Freddie alive, Liberals and sjw’s would have nothing to shoehorn into their ludicrous racial victimology narrative. With him alive the savages in the hood would have had no excuse to loot the liquor stores. Even his family would rather have the money, then Freddie. Sheeesh, these people kill each other over the last piece of chicken, a bbq rib, a $5 dice game, disrespect, and tennis shoes. For $6 1/2 million dollars, his own family would have broke his stupid neck. A whole lot less to be honest about it.

    Squeeky Fromm
    Girl Reporter

  4. Having seen the video, it is fairly obvious that Grey was injured when he was tackled. That is where he broke his neck, which also happens on the football field as well. He was unable to walk and was dragged and thrown into the wagon. The ride and no seat belt only made his injury worse, which is what caused his death. The cops were totally oblivious to his condition and could have cared less about his condition. I am not a legal expert, so while I think that murder is a stretch, I can see some basis for it given the fact that there was no legal reason for the arrest and they in fact DID kill the guy. Their actions were illegal and the result was death.

    1. randyjet – far be it from me to pass judgment, but you are also not a medical expert. The whole contention of the prosecution is that the ride is what broke Grey’s neck, not the officers previous actions.

  5. I would like to amend my remarks. The City of Baltimore gave the family $6.4 million 15 weeks after his death. That is simply not how it works.

  6. KMK, We did not get the chance to learn about the difference between civil liability and criminal culpability vis a vis Freddie. The City of Baltimore gave $4million to the family just weeks after the incident. So investigation. No assessing liability and damages. Just Christmas in the summer. Now, we will see it done in the opposite manner when cops attorneys send their demand letters. The City won’t offer a nickel.

  7. @NickS

    I really wasn’t even trying to be funny. That is just how I see some of these liberal and sjw’s. They have a primitive and child-like faith in the prestidigitations of the Left. And it isn’t even a good magic show. The Liberal Establishment tells them they are going to make the rabbit disappear, and then does nothing. The rabbit is hopping all over the stage, and dropping little rabbit pellets everywhere, while the liberal audience oohs and ahs about how the rabbit disappeared! Like pulling the White Privilege flower thing out of a hat, while the 75% illegitimate birth thing is laying right there for everybody to see. Right out in the open, and they ooh and ah at the White Privilege flower.

    Sooo, yeah they are like Pentecostal snake handlers to me, and a lot of fun to watch! Man, I wish an MRI could show what synapses aren’t firing for them.

    Squeeky Fromm
    Girl Reporter

  8. As a former prosecutor, I know too well the lure of the “just charge it” or “just try it” stance. No prosecutor wants to be seen by the police or public as being what society would consider soft on crime, so there is a temptation, particularly in highly politicized cases, to charge and let the judge or jury figure it out. What is lost is not only the ethical obligation to only bring charges that can be proven, but the moral obligation to make choices that are dictated by the evidence and facts alone. The craven, lazy prosecutor will bring a charge that is not supported by admissible evidence for many reasons, not the least of which can be pressure by the police to do so. Prosecutors must answer to the public who elects them and their colleagues in law enforcement, but ultimately it is the rule of law that they serve. They cannot retreat into political expediency to cover themselves, but rather must understand the impact that the exercise of their discretion can have on those they decide to prosecute.

    Part of the problem is that the public does not understand that this power is to be guided by the rule of law. It is imperative that prosecutors not lose sight of the impact their discretion can have on the lives of victims, defendants, witnesses, and their families. In my experience, prosecutors can fall into the “us versus them” mentality. The people that they deal with are sometimes seen as less deserving of the benefits of the proper exercise of that discretion. Judges will routinely admonish, mock, or trivialize young prosecutors, victims will be intimidated by defense attorneys, and police officers will disengage from cases, leaving these prosecutors despairing as to their efficacy in the system.

    This does not justify the abandoning of the proper exercise of discretion and adherence to the rule of law. A prosecutor must rise above these obstacles and only bring cases that can be won, as dictated by their best understanding of the law and the state of the evidence of their case. They must scrupulously adhere to the obligations set by Brady v. Maryland. It is difficult, but not impossible to achieve. Perhaps if the public had a basic understanding of the law, including the US Constitution and the Fourth, Fifth, Sixth, and Eighth Amendments, they would better understand both the strengths and limitations of the criminal justice system. This is an issue of the education of the public. Our citizens have become too cynical about how the law works; many see the law as an impediment to what they consider justice, rather than the template in which it resides.

    The Freddy Gray case is an opportunity for the public to learn and understand the difference between civil liability and criminal culpability.

    May he rest in peace.

  9. The “Pentecostal snake handler” is brilliant. It is not only a perfect analogy, it also annoys them being compared to a fundamentalist religion. Perfect!

  10. @NickS

    Oh, I know that you can’t cram a new thought into some of these skulls with a sledgehammer. They are completely immune to reality, and facts. I find them fascinating, though. Kind of like one of those Pentecostal snake handlers, or moon landing deniers. I wonder if the inability to think is just part of The Human Condition, or whether we will one day discover that it was some industrial chemical or drug which caused the craziness.

    I think it was H L Mencken who said that most people couldn’t write, because they couldn’t think. Sooo, it is not a new phenomenon. He also wrote a lot of negative stuff about what he called “sob sisters” and “reformers”, so once again this is not something that came about in just the last few years. Sooo, for me, this beats having to go to an insane asylum to check out the crazies.


    Squeeky Fromm
    Girl Reporter

  11. A quick, acerbic quip, or one of your great poems, and then let it go.

  12. @bettykath

    Freddie Gray killed Freddie Gray. He was acting stupid in the van and he hurt himself more than he meant to. Good riddance to bad rubbish. I will assure that if his family had the choice of Freddie Gray alive and zero money, or Freddie Gray dead and $5 million or so, that Freddie could just lay there mouldering in his grave.

    Squeeky Fromm
    Girl Reporter

  13. I was shocked to discover that the prosecutor claimed they had given Freddie Gray a “rough ride” despite having video evidence and the testimony of a fellow arrestee that they most definitely did not. That should be actionable.

    I think these cases were over charged and a miscarriage of justice.

    I had two issues with the Freddie Gray incident. One, he should have been secured within the vehicle. (Although how do cops belt in suspects without getting bitten, etc? It’s been so many years since my last ride along I’ve forgotten.) Second, as an asthmatic, the moment an arrestee says that he has asthma and does not have his inhaler, I think that the cops should either go get it, or take him to a hospital to get a replacement inhaler. That is regardless of whether he is having actual symptoms. Stress alone can bring on an attack that can completely close your airway very fast. And once it’s closed, nothing can save you. You can’t get rescue medication into a closed airway no matter how many times you spray it. You cannot intubate a closed airway and force oxygen inside without tearing the lungs. Steroids take 6 hours to work. Once you cannot talk, are in serious trouble. Arrested suspects with asthma need to have an inhaler close by. They can’t wait for them to have symptoms and then transport to a hospital.

    Murder was an overcharge.

  14. The City simply opened their wallet to the Gray family and said “Take how much you want.” They will defend the civil suits filed by the cops Alamo like.

  15. Nifong was indeed jailed, FOR ONE DAY! Kudos to Mr. Banzhaf for going after these rogue prosecutors. I worked as an investigator for a prosecutor’s office in KC and the chief would never have condoned this. She was diligent in being righteous, and insisted all exculpatory evidence be provided to defendants via discovery. The vast majority of prosecutor’s are tough but honest, and righteous. People like Nifong and Mosby besmirch them. Although, quixotic in this PC culture, I applaud Mr. Banzhaf’s efforts. He is going against one of the most powerful unwritten, gentleman’s agreements; that being attorneys take care of their own.


    The ghost of Mike Nifong, the former North Carolina district attorney who prosecuted the notorious Duke lacrosse players’ rape cases, today haunts the five prosecutors involved in handling the cases of the six police officers involved in the death of Freddie Gray.
    Although they all know that attorney discipline – especially disbarment – is rarely imposed on prosecutors, even if they unconstitutionally withhold exculpatory evidence and overcharge cases, in eerily similar circumstances Nifong was disbarred, forced into bankruptcy, and jailed, notes public interest law professor John Banzhaf, who helped shut Nifong’s prosecutions down.
    It is rare that prosecutors are even brought up on ethics charges, much less that they actually suffer discipline as a result of bring found guilty, but it is also exceedingly rare for prosecutors to bring criminal charges against police except in the most notorious of situations, and then almost always for something they did (like shooting), not for something they didn’t do (not using a seat belt for Gray).
    These five prosecutors are therefore sailing in uncharted waters, and must carefully consider all their ethical obligations especially since these cases, like the Duke cases, have aroused an immense amount of national publicity and concern, and complaints have been filed and will be investigated.
    In both situations, prosecutors were found to have violated the constitutional rights of the defendants by failing to turn over exculpatory evidence. In both situations prosecutors made false and misleading statements to the public regarding the proceedings.
    Perhaps most importantly, however, in both situations prosecutors continued the cases long after there was any reasonable expectation of convictions.
    This is crucial because the Maryland Lawyer’s Rules of Professional Conduct [RPC 3.8(a)] require 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 he reasonably believes there is sufficient admissible evidence to support a conviction beyond a reasonable doubt.
    In many ways the case for disbarment is stronger against Baltimore State’s Attorney Marilyn Mosby than it was against Nifong, says Banzhaf, who was also involved in Nifong’s downfall.
    When they were initially brought, Nifong’s rape cases seemed viable, but their viability was undermined by new factual discoveries.
    Moreover, although many apparently suspected at the time that Nifong has an ulterior motive for initiating the criminal charges, there was no direct evidence. In Mosby’s situation, such evidence does exist, since her speech which effectively promised “justice” if rioters would only give Baltimore “peace,” was taken by many to strongly suggest such an ulterior and improper motive.
    While preventing further rioting and looting is a laudable goal, it is not the job of the prosecutor. A prosecutor may no more bring an indictment not supported by the evidence to appease a crowd and keep order than a judge could make a guilty finding, likewise not supported by the evidence, for exactly the same purpose.
    In Mosby’s situation, most legal observers expressed serious doubts that she could win on any of the charges, including the most outrageous one of murder, from the very beginning.
    But however weak her cases were at the time they were originally brought, they have now become virtually unwinnable, not because of new evidence as in the Duke cases, but rather because of a serious of rulings by Judge Barry Williams which rejected virtually all of the major theories of possible criminal liability, and which held that on many of the necessary facts there is simply “no evidence.”
    In the face of these rulings – one including the driver of the van who played a central role, and another involving the highest ranking officer – a growing and by now virtually uniform chorus of legal experts have proclaimed that the cases are no longer winnable.
    Thus none of the prosecutors – and each has an independent legal obligation – can have a reasonable belief that he can prove their cases beyond a reasonable doubt.
    Mosby already has two separate formal disciplinary complaints filed against her, and Chief Deputy State’s Attorney Michael Schatzow and Deputy State’s Attorney Janice Bledsoe each have one pending. Since such complaints are rarely filed, there is little clear precedent regarding the outcome.
    Existing rules [19-711(b)(1)] provide that “Bar Counsel shall make an appropriate investigation of every complaint that is not facially frivolous or unfounded.”
    Thus, it is already clear that there must be a formal investigation and, as the Nifong situation reminds everyone, the sanctions could be disbarment rather than simply a reprimand.
    At least five of the six officers have already filed law suits against Mosby, and it appears that they will shortly be adding additional and stronger counts to increase her potential civil liability.
    Although it is often stated, even by experts, that prosecutors enjoy absolute immunity for law suits involving their official actions, there is an important exception, says Banzhaf, who teaches this obscure area of law, and helped use this key exception to derail Nifong.
    While it is true that prosecutors are not often charged, much less investigated and punished for ethical violations, the Nifong and Mosby situations may be the beginning of a new trend – especially involving the rare ones with immense public pressure and where strong complaints have been filed.
    Brady violations are all too frequent, and the judge’s traditional remedy of simply excluding evidence apparently is not a sufficient deterrent. Likewise, there is growing concern that prosecutors all too frequently overcharge – proceeding with prosecutions they know they can’t win – for the unconstitutional purpose of coercing a guilty plea so the accused can avoid a possible draconian sentence.
    If complaints are filed, as they were here, in the Nifong case, and in the cases of former congressman Barney Frank and vice presidential candidate Geraldine Ferraro, attorney discipline bodies will be forced to investigate and to issue some opinion; an opinion which they must be fully prepared to justify to the courts, and ultimately to the court of public opinion.
    How else can we rein in runaway prosecutors, especially when the unsupportable charges they wish to pursue enjoy widespread public support.

  17. TIN writes, “The Baltimore regulation requiring the use of seatbelts on prisoners had only been in effect for one week at the time of the death. . . .”

    I remember once hearing that “ignorance of the law [let alone the ignorance of the law by an arresting police officer] is no defense.”

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