Mosby has a second chance to get the Freddie Gray charges right

Was Baltimore's state's attorney politically motivated to charge six Baltimore officers?

On March 14, 2006, a young woman who worked as a stripper in Durham, N.C., falsely claimed that three Duke lacrosse players had raped her at an off-campus party. Following a brief investigation, the district attorney, Michael Nifong, announced that the grand jury had indicted three players. After the public disclosure of evidence inconsistent with the district attorney's narrative, the case fell apart and the players were vindicated. Mr. Nifong was later disbarred for unethical conduct, which the chairman of a lawyers disciplinary committee blamed on "political ambition," according to CNN.

While it's fortunate that costly trials and wrongful convictions were averted in that case, wouldn't it have been better to have stopped the injustice before a grand jury had returned indictments not supported by the evidence?

Baltimore State's Attorney Marilyn Mosby has that opportunity in the case of the "Baltimore Six."

Announcing the charges against six police officers after a week of protests, Ms. Mosby appears to have been driven by the politics of the moment rather than the strength of the evidence, oddly proclaiming to the youth of the city that "our time is now." Ms. Mosby's decision to subordinate her duty to do justice as a prosecutor to her role as a politician had two disastrous consequences.

First, because her actions were viewed largely as a rush to judgment, she alienated a police force that is comprised of many officers who, in the recent words of the U.S. Attorney for the District of Maryland, "serve with honor and integrity." We have since witnessed an increase in homicides and shootings in Baltimore and a decrease in officer morale.

Second, the reputations and possibly the careers of several officers previously viewed as among the best of the best have been destroyed. An attorney for Alicia White has provided ample evidence that Officer White is one of the most outstanding police officers in the city. Those who know Officer Caesar Goodson Jr. also offer a glowing description of him that is sharply at odds with the allegations in this case.

Still, it is not too late to stop an injustice. The next step in this case is the grand jury investigation. Ms. Mosby has characterized early defense motions as "desperate efforts to hijack the grand jury process." Such rhetoric is disconcerting; challenging the evidentiary basis for charges is not "hijacking" the process — it is part of the process. And the grand jury should be far more deliberate and measured than Ms. Mosby's original decision to announce sweeping charges based on faulty evidence. The tragic irony of those early charges is that they reveal how little is known about what actually caused Mr. Gray's fatal injuries. For instance, the charges of murder and manslaughter require the officers to have created a grave risk to Mr. Gray's life through their conduct, and then consciously disregarded that risk. Yet, the statement of probable cause lacks facts to support such charges.

As former federal prosecutors in Baltimore who routinely used the grand jury to investigate criminal conduct, we call on Ms. Mosby to conduct a full and fair grand jury investigation, not simply a one-day presentation in which the results are pre-determined. We call on her to put justice before politics and go where the evidence takes her, not where her constituents want her to go. Another rush to judgment serves neither the ends of justice nor the long-term interests of our community. While every death is a tragedy, not every death is a crime.

Ms. Mosby's decision not to seek an indictment for some or all of the officers — based solely on the evidence — would help repair the damage from her rush to charge everyone with something. First, the officers, at least two of whom appear to have made a lawful arrest of a man with an illegal knife, can start to rebuild their reputations and careers. Second, police officers can get back to investigating crime without fear of incarceration if they make an arrest based on good faith with which a prosecutor later disagrees. Third, Ms. Mosby can take a step toward restoring integrity to the criminal justice system that was lost when she charged a case without first confirming that the evidence was consistent with her narrative.

After all, no one deserves to be "Nifonged."

Steven H. Levin, a former federal prosecutor in the District of Maryland, is a member of Levin & Curlett LLC; his email is slevin@levincurlett.com. Jason M. Weinstein, a former deputy assistant attorney general at the Department of Justice, is a partner with a firm in Washington, D.C.; his email is jweinstein@steptoe.com.

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