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Gag order request in Freddie Gray case shows prosecutor's misunderstanding

Baltimore State's Attorney Marilyn J. Mosby announces Baltimore Grand Jury's decision to indict the six officers charged in the death of Freddie Gray. (Kevin Richardson/Baltimore Sun video)

The searing spotlight of media scrutiny fell upon a Maryland state's attorney, a rising star in Democratic politics. After a high-profile beating death, the young prosecutor convened a news conference to announce murder charges, detail the evidence and insist that the public's desire for justice had finally been achieved.

If you think I've just described Baltimore State's Attorney Marilyn Mosby's actions surrounding the death of Freddie Gray, you're only half right. Nearly the exact same situation occurred a dozen years ago in Maryland. In that case, the politically ambitious state's attorney was Doug Gansler. And, in a judicial opinion that my law students study because of its landmark holdings, Mr. Gansler was publicly reprimanded by Maryland judicial authorities.

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Most Marylanders know Doug Gansler as the former attorney general who ran for governor and lost. But in 2000 and 2001, he was the state's attorney for Montgomery County. While serving in that role and following three highly-publicized murder cases, Mr. Gansler used televised news conferences to grandstand in a manner that the Maryland Court of Appeals later described as "improper." The judges then concluded that Mr. Gansler's media performances "dangerously jeopardized the foundational principles of our system of criminal justice."

It was the first time a Free State prosecutor was disciplined for attempting to use the news media to unfairly prejudice a trial. But the clearly-stated precedent of the Gansler case now binds every prosecutor in Maryland. The holding is so well known in legal ethics circles that I spend most of a 2- hour class discussing it with my law students. But this subject is more than an academic exercise for me.

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As a prosecutor, I've spoken to the press on many occasions. When I was the deputy attorney general of Ohio, it was part of my job to discuss legal issues with journalists. And early in my career, when I was the spokesman for federal prosecutors who were bringing police brutality cases, I briefed countless media outlets. Yet, in each press encounter, I reminded myself of the special rules that apply to prosecutors talking to reporters.

Simply put, using the words of the legal ethics rules in Maryland and elsewhere, a prosecutor is more than just a lawyer advocating for a legal position. A prosecutor is, and must be, a "minister of justice."

The fact that State's Attorney Mosby is now asking a judge to issue a gag order against defense lawyers in the Freddie Gray case is more than just troubling; it shows a misunderstanding of ethics rules on pre-trial publicity. These rules provide that when one side in a case (typically a prosecutor) has so completely exploited the charges in the press that the other side's attorneys (here, those representing the officers) must be allowed to be even more aggressive with public statements than pre-trial publicity limitations would typically permit.

Ms. Mosby's first misstep was to showboat, using rhetoric more suitable for a candidate seeking votes than an officer of the court seeking justice. From her over-caffeinated statements at her initial news conference to the other national news interviews she leapt into, her tone was remarkably strident. But her second, and more serious, misstep was to seek to silence defense attorneys who are still trying to unwind their clients' prospects for a fair trial from the numerous prejudicial statements the prosecutor already made.

Had Ms. Mosby taken the time to read and reflect upon the opinion in the Gansler matter, it's likely she would have taken a more thoughtful, even responsible, approach. After all, no attorney wants to face disciplinary charges that could lead to disbarment. It appears that the legacy of the Gansler ethics case went unheard in what someday may be called the Mosby ethics case.

Whether or not Marilyn Mosby will be disciplined along the lines of Mr. Gansler remains to be seen. But she already shares the most troubling common denominator of certified-unethical attorneys: the willingness to abuse media relations and the prosecutor's authority just to brighten her political horizons.

We trust ministers to do the right thing and to be guided by higher principles. From a minister of justice, we should expect no less.

Mark R. Weaver is a former Spokesman for the U.S. Department of Justice and teaches law at The Ohio State University College of Law. He tweets at @MarkRWeaver.

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