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. @CK07

    Yes. I assume the witness would follow the hood code: “Rule No. 1: Snitches get stitches, and then end up in ditches.”

    That is why I said it was MORE LIKELY the admission that would get him stitches, and in a ditch. Snitching is not in your own interest. Which, would explain why he might retract it later. Which gee, kind of dovetails with the reported facts!

    Squeeky Fromm
    Girl Reporter

    1. Figure it is easier to post a summary than the entire post:

      Still feel like there isn’t a need for reform and that on public policy alone it’s a good idea to request Maryland sanction or even disbar Mosby? The attorney’s dropped the case because there wasn’t sufficient evidence to prove guilt beyond a reasonable doubt to the Judge and going forward the officers were going to waive their right to a trial by jury. That doesn’t mean their actions are not responsible for the death of Gray. Unless of course you want to believe the story of his van mate who was shown to have made up being able to see Gray to begin with. In light of this story I don’t see why anyone would think the dept isn’t corrupt enough that Allen’s testimony against him was legit to begin with. First it’s not snitching if you make up a lie in someone else’s defense (as opposed to helping prosecute someone), second he recanted his statement and there seems to be reasonable suspicion that he was coached by officers what to say initially:

  2. Carlyle Mouton: this is exactly why I said it made the least sense to start with the driver. If the sole theory of the case was that all of his injuries were due to failure to buckle in, absent evidence the driver loaded gray in when 5 others were involved I don’t see why they think the driver would have much to do with his injuries. And then you make an uphill battle for yourself.

    If the theory is some of his worst injuries occurred during arrest brutality then the driver is the last person you should prosecute. I guess the prosecution thought he would give somebody up, but they lost a ton of potential momentum in the process. So all charges have been dropped against the remaining officers because it was obvious how this was going to end given the threshold to establish guilt beyond a reasonable doubt. Still on public policy the case is not frivolous if it so much as cautions police in Baltimore to end nickel rides as a result of the publicity associated. The other 17 cases they’re being sued on I doubt anyone has heard of outside of Maryland attorneys and some police.

    Squeeky, an admission against interest has to be against the witnesses own interest, correct? How is it against his interest? You assume he typically follows some hood code of don’t assist the police? Wouldn’t it make more sense to assume he’s hoping for leniency in his own case by making a case in favor of his captors? I’d try impeaching his testimony on the basis of motive…

  3. A video of the arrest shows Grey’s legs and feet dragging uselessly as he is hustled to the police van. This shows that all the spinal damage or at least most of it occurred before he reached the van which on turn means the van driver was the least appropriate for prosecution since if the last bit of the spine breakage occurred in the van it could not have happened at all except for the first damage.

    Prosecution of any of the other police should also have been seen as futile since the lawer for any one caould point to the others and say “how do you know it wasn’t one of them”?

  4. @Nemo

    Well, you made one good point! This one:

    “A witness that she would probably not find credible, if he had testified that an officer had shot someone with their hands up, is for some reason credible in this case. ”

    Now, for why I believe him. First, it is more likely true because it was an “excited utterance.” There is a rule of evidence thingy about that;

    Second, the other criminal was more likely to support a fellow inmate, than turn on him, sans some reward. That is my experience, Therefore, what the other guy said in more likely true as “an admission against interest!”

    Squeeky Fromm
    Girl Reporter

  5. Squeeky’s partisanship is interesting. Since he had a record, no one cared about him, His family is greedy. The knife he bought locally was either clearly illegal to be carried in public, or “ignorance is no excuse”. All the damage done to his body was self-inflicted. A witness that she would probably not find credible, if he had testified that an officer had shot someone with their hands up, is for some reason credible in this case. I’m sure there’s more that I missed.

    Is Squeeky a poe account, and I’m not in on the joke, or are they truly that pro-police, regardless of what they do? I’m curious now.

  6. @ Tin:

    The policy about belting prisoners in was around a lot longer than a week. It was updated a week prior. It had been in place for more than a decade. It was in place when other officers killed Dondi Johnson in 2004 the same way.

    The city was being sued by seventeen people for “rough rides” at the time Gray was killed. Management was conducting audits in the months before as a way of fending off the lawsuits.

  7. Paul, the judge disagrees as to whether the burden of proof has been met beyond a reasonable doubt. That is very different from saying there is no evidence whatsoever that could lead a reasonable jury to conclude otherwise and that Mosby is engaged in malicious prosecution that should result in disbarment. If all prosecutors who lost cases for failure to meet proof beyond a reasonable doubt we would have very few prosecutors. Pushing for disbarment in this case only furthers the evidence that police are above the law in this country.

  8. Paul Schulte,
    You don’t need procedures to inform someone that driving with a cuffed and unbuckled passenger will likely suffer injuries unless you drive cautiously. That’s common sense. And in a department littered with complaints of nickel rides for years, not taking those precautions with a suspect who already seems injured would seem to be at the very least gross negligence and at most evidence of a depraved heart murder. If only professor banzhaf was as adamant about prosecutors backing off from prosecuting ordinary citizens, particularly minorities who have been made our for profit prison systems cash cow often with far less evidence than we have here.

    As for the word not getting out to officers about procedures for not giving rough rides, I can tell you that when procedures were issued for no high speed chases in Baltimore the week my friend was killed as a result of one, announcements were made and police didn’t care. You want to keep treating them as if they’re above the law and give them the benefit of the doubt in spite of years of evidence of corruption and encourage Banzhaf to make prosecutors more fearful than they already were of opposing such departments? that’s on you.
    I cannot condone this when over 1.5 million Americans are arrested everyday for non-violent drug related offenses, approximately half of which are mere possession of a plant which has harmed no one. When only 5% of Americans believe execution reduces the number of homicides yet we still have thousands on death row. When just 2 for profit-prison companies make 3.3 billion dollars and the number of incsrcerations has increased by 500% since the war on drugs of the 80s. How many citizens are given the benefit of the doubt and the unpaid for defense of an attorney like banzhaf making future prosecutors scared to target citizens when less evidence exists? The police don’t need his help for this, they already have significant advantages when it comes to beating the criminal justice system (not when it comes to their families’ compensation when the many good among them give their lives such as in 9/11). If this were some bumble woods department that had never been accused of nickel rides or medical examiners didn’t conclude his spine appeared severed as if in a horrific accident then you’d be right that she failed to present a modicum of evidence, but just to say that because the officers are being acquitted and her team continues to prosecute those remaining means she’s a “runaway prosecutor” is ludicrous. There is sufficient evidence for a reasonable jury to conclude depraved heart murder and as unlikely as it is for police in this society to be convicted of such, if she chooses to press it in the interest of fairness and to send a message she should be disbarred.

  9. *rational
    At any rate we have to consider the public policy at stake here. Banzhaf’s pushing for charges against the prosecution that if enacted will require you to have an air tight case with enough evidence to convict a dozen citizens if you dare to bring a case against law enforcement. This is a police force that is already protected from litigation by the blue code of silence, prosecutors that are largely reluctant to push for indictments, and even when there is substantial evidence they are met with leniency such as in the case where an officer in Virginia shot a middle aged white woman in the head and there were witnesses to disprove the officer’s lies he only saw a 3 year sentence.

    How many more advantages do you need to give them when they are treated by the criminal justice system as above the law and given treatment normal citizens and even retired veterans could only hope to enjoy? I realize the importance of a world class police system in maintaining peace and our way of life. But we have realize when there are bad seeds within departments and help the good to clean out the bad when they are aware of such incidents without fear of reprisal against them or their families from other armed corrupt officers. Disbarring Mosby and suspending her cohorts does nothing to achieve that and everything to enable business as usual. We don’t have an issue with runaway prosecutors leaving urban departments in fear, but we do have an issue with since corrupt urban police feeling they are above the law with disastrous results as evidenced by recent videos from New York to California. Let justice play out and the courts decide the guilt or innocence of the officers. Don’t push for sanctions against the prosecution who is doing their job unless you’re going to also go back find and sanction every prosecutor responsible for the dozens of death row inmates who have been acquitted or had charges dropped often on the basis of new DNA evidence testing

  10. Paul Schulte:
    A rough ride is not an accident. There is medical evidence indicating his spinal cord was severed as if he had been through such trauma, and the officers note they violated policy by not buckling him up despite cuffing him. Rationale people have pointed out he was likely injured during the initial arrest and made worse by the rough ride. He appeared in no condition to try and further injure himself intentionally as Squeeky and this “witness” who has motive to lie have indicated. And Baltimore PD is known for rough “nickel” rides:
    as well as the violations of policy and recently issued edicts resulting in death as I pointed out.

    1. CK07 – the officer who put him in the truck was a bike officer and there is no indication he knew of the new procedures that were only a week old. And there is nothing to show he got a rough ride. Since the driver has been found not guilty and the senior officer found not guilty, the rest is futility. You cut your losses. You have to know when to fold ’em.

  11. @Barmak

    BUT. . .the BPD did NOT have complete control of Freddie Gray. He was bound, but he was quite capable of bouncing around, banging his head into the side of van, and in general acting the fool.

    There was some evidence from the other prisoner that Freddie was doing exactly that! Sooo, does anyone know how much of Freddie’s death was caused by . . . Freddie himself?

    Squeeky Fromm
    Girl Reporter

  12. Dear Jonathan,

    Your favorite former student here (ok, more likely the other way around)…

    While I appreciate, in seriousness, that the standards and nature of criminal law is an entirely different matter from the law of negligence (and, so, this is not meant to be a “legal” argument), it feels a little ironic to read your commentary on this matter because when I think about the Freddie Gray case in terms of the evidence, I cannot help but to to think of your blog’s namesake: it speaks for itself. A man was alive and healthy when he was taken and bound and, at the bare minimum negligently placed into a moving van; he had a broken neck at the end of that ride. Something happened along the way while he was in the charge of those officers, and that something (Ocham would tell us) is almost certainly the fault of those who took “legal’ and physical possession of him, bound him, and put him into that ride that wound up his last. I am not familiar with the fine details of the prosecution, but as sentient being with eyes and a little common sense, it seems absurd that no charges would be warranted, at least at the very minimum some form of dereliction charge up to some kind of negligent or reckless homicide. Again, I think the matter really does speak for itself plainly, and depending on the perspective of the observer (shout out to William James): loudly.

    1. Barmark – the key to all of this is did the defendants do anything that was illegal that caused the injuries and death of Freddie Gray? Accidents are accidents.

  13. @ Squeeky Fromm, Girl Reporter
    So we’re now going to give a department with a reported history of giving nickel rides the benefit of the doubt that Gray broke his own neck acting out while cuffed, and the supporting evidence you provide to the plausibility is a horrific accident involving teenager doing near Olympic level stunts and crushing her neck on the second double back flip, a stunt so unbelievable you need to see it for yourself:

    And in defense of the officers continued use of nickel rides we’re to take the word of someone else they arrested who could barely see him and was likely told they’d be lenient if he said what they suggested, or offered the deal himself over common sense and reason?

  14. I think the complaint against Mosby here ignores that the this is pretty much the behaviour of every prosecutor with just about every defendant in the system.

    The outrage is only because of who the defendants are, not because of what Mosby has actually done. Banzhaf almost certainly knows this, which makes his convenient hyperventilating suspect.

    The legal profession is the most corrupt in the Republic, and prosecutors are the most corrupt part of that corrupt profession.

  15. KMK, thanks very much for your extraordinary thoughts. It’s comforting to know contemplative, theoretical, legal minds exist.

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