Can the Baltimore Prosecutor Win Her Case?

A law professor says Marilyn Mosby may have overcharged officers in Freddie Gray's death, but that's common with ordinary defendants.

Marilyn Mosby's press conference Friday shocked residents of Baltimore and everyone else watching protests over Freddie Gray's death. Barely 24 hours after police had completed their investigation into the death of the 25-year-old black man in police custody, the Baltimore City state's attorney announced a strong slate of charges against the six officers involved. It wasn't just the speed (Mosby said her office had begun investigations the day after Gray's arrest, and six days before his death) but the charges: second-degree depraved-heart murder against one officer, with the others facing a mix of manslaughter, assault, misconduct, and false imprisonment.

The decision was met with jubilation in West Baltimore, where protestors had rioted just four nights before. But almost immediately, critics began to second-guess Mosby, who's been on the job for just a few months. Were her charges politically motivated, or perhaps calculated to calm protests? Had she overcharged the officers, picking unfair charges, or ones she couldn't win? Did she move too fast to charge the officers?

The answer to some of those questions is probably yes, says David Jaros, an associate professor at the University of Baltimore School of Law: There's good reason to think that Mosby was driven by political considerations, and it's quite possible that the charges she filed against the officers are stronger than she can get a conviction for. While that's cause for concern, it's also absolutely typical in criminal cases involving defendants who aren't police, Jaros says. Prosecutors commonly overcharge, they don't always wait for a thorough investigation, and they are susceptible to outside influence.

Swift charges in cases of police abuse are unusual, and in fact there are often no criminal charges at all. When charges are filed, they often don't result in convictions, and those that do don't often result in jail time. Prosecutors still haven't brought charges against the officer who shot Tamir Rice in Cleveland, and grand juries chose not to indict officers in the deaths of Michael Brown and Eric Garner. In part because they rely on police to do their jobs, prosecutors tend to be very cautious and circumspect in cases involving police.

In other words: The justice system works for police the way that it is supposed to work for ordinary citizens.

Jaros, who teaches criminal law, is a former attorney at the well-respected Bronx Defenders in New York and has written on how to discourage police abuse. This interview has been condensed and edited for clarity.

---

David Graham: The charges in this cases were met with a lot of surprise—at the charges, at the speed which they they came, at their strength. Did you find it surprising?

David Jaros: I love how surprised people are by the fact that a prosecutor may have overcharged. This is something prosecutors do all the time, as a strategic choice, for various reasons, and it's ironic that suddenly the [Fraternal Order of Police] is up in arms over this. What's surprising is that we see a criminal-justice system moving rapidly to respond to allegations of police misconduct. Did she move too quickly? A lot depends on how much she was relying on the police's own investigation, because they had given her their report something like 24 hours before she actually came out with the charges.

If anything, the overwhelming concern is that prosecutors and the police work together every day. There was considerable concern about whether the prosecutor in Ferguson was vigorously pursuing the police officer in that case and whether there were divided loyalties. In cases where the process seems to have moved more slowly, I think the question has to come up of why are those cases moving much slower than other cases that the prosecutor’s office takes on. But certainly there are reasons for us to think that we need institutions other than the police to be investigating and policing the police.

Graham: Would this seem like a reasonable timeframe for a normal case of second-degree murder?

Jaros: Once you know the facts of the case, the timeframe’s not really the issue. The question is, did they have sufficient time to get a clear understanding of what they believe happened, and then based on their understanding of the facts, what crimes do they have probable cause to believe were committed? We don't know what she knows. It could be that there's an officer who's saying, "We all said, 'No, he's going to die,' and he said, 'I don't care!'" But if the facts as Marilyn Mosby related them in her press conference were close to what was known, it would appear to me very hard to successfully convict for second-degree murder. It’s not necessarily a huge hurdle to get manslaughter or negligent homicide. And that's what we see in tons of criminal cases! I think there's reason to be really concerned about that kind of prosecutorial overreach. But we can't be concerned about it only in the cases involving police officers.

Graham: How common is it to overcharge?

Jaros: I think that is a relatively common practice. On a lower misdemeanor, they might throw in a charge of felony assault when it's really a misdemeanor assault, because they know that this going to go through a plea-bargaining process. It’s also true that juries sometimes compromise, so if they’re going to compromise, you stake out a strong position and then you settle for what you thought was appropriate in the first place.

Graham: Since prosecutors typically work closely with police, how does that affect the way Mosby might approach the case?

Jaros: There are reasons to be troubled by the close relationship of prosecutors and the police and whether or not prosecutors are vigorously going after bad police work. It was a real surprise when the prosecutor in Ferguson simply put all the evidence in front of the grand jury—bad witnesses, exculpatory evidence—and said, you know, I’m going to let the grand jury decide. I’m going to let them weigh everything. That’s not a bad thing—if they did that in every case. But if they’re not revealing the weaker evidence, potentially exculpatory evidence in the average case involving often, frankly, poor and minority men, but only doing that in cases involving police officers, then we get a feeling that the criminal-justice system is rigged one way and not the other.

Graham: How can we measure whether prosecutors are less vigorous in going after police: the rate of indictment? The rate of conviction? The kinds of charges?

Jaros: That's a difficult question. I want to be honest about it, because it’s too easy to say, look at all of these horrible things that have happened and none of these police officers have been indicted or charged. But at the same time, one does look at a case like Tamir Rice where we still have heard very little after five months. We look at the seemingly weak effort of the prosecutors in Ferguson, and it can't not raise concerns about whether or not prosecutors are sufficiently independent from the police that they can do a good job litigating these cases. On the other hand, hopefully this is a little bit of a bright new day. Marilyn Mosby clearly has come out and said she's going to pursue these cases. It remains to be seen whether or not this a one-time event because it was politically expedient, or in fact prosecutors are going to start taking their job of policing the police and at least charging them with crimes when they're committed seriously.

Graham: You've noted the view that “the politics of crime tends to deter politicians from taking an active role in limiting police power.” Are these charges essentially a political move? Is that usually more a pressure on legislators or more on prosecutors?

Jaros: I remain hopeful but also skeptical that we are going to see a shift in the politics of crime. We're seeing the Republican Party embracing rehabilitation in a way that's certainly new. I remain deeply skeptical about whether or not there's a true commitment to poor and neglected communities and really rehabilitating those communities, or if it's just a way to save money. But at the same time there's a possibility that we are really shifting our approach to how we fight crime in this country. There's a possibility that things are moving in a good direction.

Graham: What about the political pressures on Mosby in particular?

Jaros: I think there are once again serious reasons to be concerned about the political pressure to come out quickly and charge very serious crimes because there was a very real interest in calming the city. We don’t want those political interests to affect the prosecution of an individual defendant and their constitutional rights and what's going to happen to them. At the same time, that’s what happens in tons of other cases. It’s ironic that we hear people talking about, Well, they’re going to have to change the venue, because how could these officers get a fair trial here in Baltimore? the same week that the marathon bomber [Dzhokhar] Tsarnaev in Boston is being prosecuted and tried for murder in the city that was so deeply damaged by the bombing. It’s not to say that these officers don’t deserve a venue change and to have their personal criminal cases unaffected by political interests—they do. But we should have that concern in every case.

Graham: It sounds like you’re saying that the justice system works for police officers the way it is supposed to work for everyone else.

Jaros: That is exactly the point. I think it would be wonderful if prosecutors put exculpatory evidence in front of grand juries. I think it would be wonderful if prosecutors shifted to a venue that was not biased because people witnessed or experienced things related to the charge. I think it would be wonderful if prosecutors, whenever they recognized that they had a political connection to the case, excused themselves. But there's something deeply wrong if we only do that in the cases involving police officers.

Graham: It’s rare to see a charge of false imprisonment like the one in this case, right?

Jaros: That is an unusual charge. The second-degree murder charge, the depraved-indifference charge, it looks little bit like she overreached, but the false-imprisonment charge is going after a very different issue, and I think it’s striking and in many ways more important. It really is a statement about policing in a way that could have a positive impact on how this so-called zero-tolerance policing is affecting these communities.

Graham: Could this become a new tool for prosecutors in going after police misconduct?

Jaros: In an idealized world, yes. Do I think that's going to happen? No. At the end of the day, prosecutors want police officers out there making arrests. I think most prosecutors think the solution to being arrested for actions that are not a crime is simply that they get released. That’s deeply sad, but I don’t expect, except in the most egregious cases, that we’ll see more of this. But it is a powerful statement, at least, that unacceptable stuff is happening. I was asked the question about whether we would have seen this reaction from the system had there not been the riot. I think the flip side of that question, which is interesting, is, would we know about this arrest where the person had committed no crime and was roughed up, if he hadn’t tragically died? I think this has a pretty powerful statement about what’s happening.  Whether or not anyone picks up on it—that’s a difficult thing to believe will happen, frankly.

Graham: You think the manslaughter charge has a better shot than the homicide charge.

Jaros: To succeed for negligent homicide or manslaughter, you have to basically say, a reasonable person would have known that someone could die from this, whereas depraved indifference really requires that the person should subjectively be aware that there was a strong likelihood that their actions would cause a death and they went ahead and did it anyway. Without learning—and the question is, will we learn more?—proving that this officer actually was himself subjectively aware that his actions had a very good chance of causing death is not impossible. I don't think you necessarily get that case dismissed before it goes to the jury, but it would be a hard one to prove. But the fact is prosecutors pursue cases that are hard to prove all the time and for some reason I don’t hear as much concern about that strategic choice in other cases.

Graham: On the flip side of that, if these charges don't stick, will it have a chilling effect on prosecutors going after police misconduct?

Jaros: Whether or not it has a chilling effect on prosecutors is going to depend very much on the political impact that it has on the prosecutor in this case, and that’s hard to predict. Right now, the narrative is, Marilyn Mosby is the one person out there fighting for us. She at the moment is looking pretty good. The narrative could shift to, it was irresponsible of the prosecutors to overpromise, and be highly critical. The truth is that I think we would live in a better world if prosecutors only pursued charges that were really warranted by the facts, in every case. This does seem to me to be a reach. That being said, it's early. There's still an investigation going on. There's still the possibility that one of the officers involved will strike a plea and we’ll learn a lot more about the facts. What she tries to indict and what she ultimately pursues in court may be different.