Harvard law professor: criticism of Mosby over Gray trials is 'wholly unfounded'

Op-ed: Harvard professor says criticism of Baltimore State's Attorney Marilyn Mosby "wholly unfounded."

Baltimore City State's Attorney Marilyn Mosby is the subject of intense yet wholly unfounded criticism for her office's decision to prosecute six police officers for the death of Freddie Gray. Significantly, a George Washington University law professor, John Banzhaf, has gone so far as to file an ethics complaint against Ms. Mosby.

These critiques of Ms. Mosby bespeak a troubling double standard. It appears that some would rather treat police officers with a special legal status, while treating average citizens with the rules reflected in our Constitution. Significantly, enshrined on the main portico of the Supreme Court building is the phrase "equal justice under law." It is a symbolic representation of a core constitutional principle that no person is above the law. Ms. Mosby has exercised her prosecutorial discretion equally with respect to all citizens. Yet many condemn her nonetheless.

Our criminal justice system permits charges to issue upon a finding of probable cause. Probable cause is likely most easily understood in the way I introduce the concept to my first year criminal law students at the Harvard Law School: A crime probably occurred and the accused is probably responsible; that's probable cause. Indeed, it is a notoriously low standard, but it is the one our Supreme Court has continuously affirmed.

Some argue that the recent acquittal of three officers demonstrates that the charges should never have been brought in the first place. This argument makes no sense as it conflates two standards. The probable cause standard is what determines whether a charge can be made, while proof beyond a reasonable doubt defines what it takes to convict.

It is certainly fair to argue that because a prosecutor can bring a charge does not mean that prosecutor should bring a charge. It is also quite reasonable to urge criminal justice reform by cabining prosecutorial control over the grand juries, or setting the standard for the charging decision above the constitutional floor. But, to suggest that a prosecutor violates her ethical obligations by holding police officers to the same standards applied to thousands of primarily young and poor citizens of color is offensive. It is telling when elites only perceive a problem when middle class citizens or citizens with titles are impacted. Such critiques only serve to preserve the massive inequalities that already exist in the criminal justice system nation-wide.

A threatened ethics probe and sharp criticism from elites who rarely experience the criminal justice system is a naked attempt to bully a chief prosecutorial officer into treating certain accused lawbreakers different from others. Indeed, distilled to its essence, the complaint against Ms. Mosby is that she demonstrates fidelity to the principle that no man is above the law. Her detractors would have it that poor blacks are charged when a grand jury finds probable cause, but not for officers.

It is equally clear that Ms. Mosby's detractors are not making a broader claim about prosecutorial discretion in the criminal justice system. Those speaking loudest and filing specious complaints curiously have been deafeningly silent when it comes to decisions that the same grand jury has made about other Baltimore citizens. The absence of outrage on behalf of everyday citizens exposes the logical consequences of their arguments: Two sets of laws for the people of Baltimore. But we live in a country where equality is the pillar of our democracy. To so blatantly advocate for preferential treatment for one class of citizens offends the very foundation upon which our democracy rests.

Ms. Mosby applied the law evenhandedly. That's what prosecutors are supposed to do.

Ronald S. Sullivan is a criminal law professor at the Harvard Law School where he is director of the Criminal Justice Institute. His email is rsullivan@law.harvard.edu.

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