The heated rhetoric on both sides of the prosecution of officers involved in Freddie Gray's death has intensified in recent days, with their attorneys calling for State's Attorney Marilyn Mosby to be replaced by a special prosecutor and with her office firing back in court briefs. Given the passions stirred by the case, it's not surprising, but it doesn't amount to much either.
Ms. Mosby's conduct has not been flawless. She is now pursuing a gag order in the case, which is not only unnecessary but inimical to the public interest. Her rationale is that the defense attorneys are seeking to try the case in public and taint the possible jury pool — which is more or less what she skated up to in her unusually impassioned reading of the statement of probable cause in the case during a nationally televised news conference. And she has shown an unseemly willingness to bask in the spotlight the case affords, for example accepting an invitation on stage with the musician Prince during his post-riot concert here and sitting down for an interview with Vogue magazine. Ms. Mosby didn't make any remarks at the Prince concert, and she didn't discuss the pending case with Vogue, but those sorts of things detract from the seriousness of her purpose.
That said, calls for her recusal don't add up.
Defense attorneys for the six officers contend that Ms. Mosby brings major conflicts of interest to the prosecution. They cite the fact that her husband, Nick Mosby, is a city councilman representing the district where Gray lived and was arrested; that she has personal and professional ties to William "Billy" Murphy, the Gray family's lawyer; and that one of her top deputies has a personal relationship with a potential witness in the case, television reporter Jayne Miller.
The idea behind the first is that Ms. Mosby might be tempted to bring charges against the officers to help her husband curry favor with his constituents. But this overlooks the fact that Ms. Mosby, too, is an elected official — and one with a much more prominent office, at that — who stands to gain or lose politically depending on how she prosecutes this or any other high-profile case. It is an inherent possibility that an elected prosecutor's political ambitions could color his or her judgment, but we accept that fact because an elected prosecutor is also, theoretically, representative of his or her constituents' attitudes and interests.
The second alleged conflict centers on the notion that Ms. Mosby, who has been represented by Mr. Murphy in a legal matter in the past and who has received campaign contributions and other political support from him, would pursue baseless charges against the officers to bolster his chances in an eventual civil suit. But that one cuts both ways. Ms. Mosby's efforts only help Mr. Murphy if her prosecution is successful and the charges are, by definition, not baseless. If she loses, it could hurt the Gray family's chances to recover damages.
In practice, though, there is strikingly little correlation between the success or failure of civil suits and criminal prosecution involving police. As The Sun has documented, Baltimore has paid more than $6 million in judgments and settlements in civil suits against police during the past five years. And as The Sun has also documented, police are rarely charged after encounters that result in deaths and are even more rarely convicted as a result. Criminal charges are clearly not a necessary ingredient of a successful civil suit against an officer.
The third is a real conflict — for Ms. Miller and WBAL-TV. They eventually acknowledged as much by pulling her off the story, and they probably should have done so sooner; Ms. Miller is in a relationship with the deputy state's attorney who led the Freddie Gray investigation. But the notion that Ms. Miller would be a "key witness" to the case is much less clear. The officers' attorneys note that another man was transported in the same van as Gray for part of the ride when he evidently suffered a critical injury to his spinal cord, though the two were separated by a metal partition and could not see one another. One police document indicates that the man, later identified as Donta Allen, said he heard thrashing noises as if Gray were trying to injure himself. Before charges were filed, Ms. Miller broadcast an interview with Mr. Allen in which he denied having told the police that. The officers' attorneys say they need to bring Ms. Miller to the stand to explain how she found Mr. Allen before his identity became public, what was said off camera, and whether the footage was genuine. But the interview was hardly the "exclusive" WBAL claimed it to be. Mr. Allen told the same thing to a reporter from WJZ-TV — and, more crucially, to police investigators themselves. He would seem to be the key witness here, not Ms. Miller.
We don't need to search for hidden motivations to explain Ms. Mosby's decision to prosecute these six officers. She was elected at least in part on a promise to hold police accountable for misconduct, and now she's attempting to do so — despite the fact that her success in this and other instances relies heavily on her ability to work with police officers to build cases and testify in court. Whether her decisions in this case were wise will depend on what evidence she can bring to trial. In the meantime, it looks like we'll have to endure a lot of noise.