The two women suing Baltimore County State's Attorney Scott Shellenberger and two prosecutors over their alleged failure to investigate sexual assault cases face an uphill battle to overcome special immunity given to prosecutors, some legal experts say.
“When it comes to suing a prosecutor, there’s a special challenge,” said David Jaros, a University of Baltimore School of Law professor. “They have absolute immunity.”
The legal system sets a high burden for plaintiffs suing prosecutors to protect them from having to constantly defend themselves after they’ve brought charges in criminal cases, Jaros said. He and other legal experts said the women will have to show the prosecutors were acting outside of their duties, which would not be protected by prosecutorial immunity.
The women, who said the they were raped by University of Maryland, Baltimore County students in separate incidents, have accused the school, police and state’s attorney’s office of mishandling their cases. The Baltimore Sun is withholding the women’s names because it does not identify alleged victims of sexual assault.
The federal lawsuit filed last week outlines several allegations against the county State’s Attorney’s Office, including failing to bring charges against the accused men, miscoding sexual assault cases in an effort to improve crime statistics, and discouraging one of the plaintiffs to pursue charges with the court commissioner’s office by sending county police officers to her home to intimidate and threaten her.
The suit alleges Shellenberger instructed two county police officers to tell the victim “that she has to stop bringing these additional charges or they will file criminal abuse of process charges against her.”
The alleged actions by Shellenberger and the two prosecutors “demonstrated malice, deliberate indifference, and recklessness,” the suit said.
Shellenberger has declined to comment on the lawsuit, as did attorney Rignal W. Baldwin, who is representing the women.
Prosecutorial immunity does not extend to actions that fall outside their duties, such as intimidating a witness, as the suit alleges, the experts said.
While the suit questions why the office did not pursue charges against men accused of rape, Jaros said prosecutors act with an enormous amount of discretion when choosing when to pursue charges. For the most part, Jaros said, there is “very little oversight.” Prosecutors cannot be forced to file charges in a case.
Prosecutors must weigh the evidence and decide whether they can prove beyond a reasonable doubt that the defendant is guilty, said Brian G. Thompson, a defense attorney who is not connected with the case. He said prosecutors have an ethical obligation not to bring charges against a citizen if they don’t believe they can prove the case.
Sexual assault cases can be very difficult, Thompson said.
“These are tough cases to prove,” he said, “especially when you are talking about people who are intoxicated.”
He said prosecutors have to prove the victim was not able to give consent, and that the defendant knew “she was incapable of consenting, beyond a reasonable doubt.”
One of the plaintiffs in the suit said she was drugged and sexually assaulted three years ago by a UMBC student on campus when she was a freshman at the university. She submitted to a rape kit, only to later learn that it was destroyed, the suit said. The other plaintiff named in the suit alleges she was gang-raped by three UMBC baseball players last October, while she was a student at Towson University.
The state’s attorney’s office did not file charges in either case.
In Baltimore, State’s Attorney Marilyn J. Mosby was sued in 2016 by five of the city police officers who were charged, but not convicted, in the 2015 arrest and death of Freddie Gray. Their lawsuit claimed malicious prosecution, saying Mosby didn't have enough evidence and charged them to ease the unrest that followed Gray’s death.
Mosby's lawyers argued that as a prosecutor she was immune from the lawsuit. The officers’ attorneys alleged that Mosby acted outside her role as a prosecutor when she said her office and the Baltimore City Sheriff’s Office conducted their own investigation into Gray’s death.
The officers scored some legal victories, with a federal judge allowing some parts of the suit to go forward. But in May, a federal appeals court blocked the suit, with the judge ruling that “we find no justification for denying Mosby the protection from suit that the Maryland legislature has granted her.”
David Ellin, an attorney who represented Baltimore Police Lt. Brian Rice, who was among the five officers, said the suit against Shellenberger could be tough.
“The big problem with a case like that is the immunity issue,” he said. “The reason we had some initial success with Mosby is that she acted outside the scope of her employment.”
If the women’s lawsuit does not progress, Ellin said they could file a complaint against the prosecutors with the Attorney Grievance Commission of Maryland. Such proceedings could result in disbarment if the prosecutors were found to have done something improper.