Nuremberg taught us that a soldier cannot claim that he was "only following orders" to excuse illegal conduct; the soldier must refuse. Legal ethics impose a similar duty on subordinate lawyers. But mutiny is a difficult thing to ask of someone in an effective chain of command. This is the unenviable position in which several Baltimore deputy and assistant state's attorneys find themselves in the continuing trials concerning the fatal injuries Freddie Gray received while in police custody.
Consider the ethical framework of the prosecutions. The duty of the prosecutor is to seek justice, not merely to convict. The Maryland Rules of Professional Conduct prohibit all lawyers from bringing a frivolous case, which it is when the lawyer is unable "to make a good faith argument on the merits of the action." And prosecutors in particular are required to refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause. This framework prohibits a prosecutor from continuing to pursue a case in which she does not hold a good faith belief that the evidence supports the charges.
The ethics extend beyond Baltimore State's Attorney Marilyn Mosby. The front-line prosecutors must themselves be convinced of the merits before they can ethically proceed. Circuit Court Judge Barry Williams has now rendered three not-guilty verdicts on the same set of facts in the trials of three officers charged in the death of Freddie Gray: Officers Edward Nero, Caesar Goodson Jr. and, today, Lt. Brian Rice.
In each successive trial, the prosecutors must ask themselves, "If we could not prove guilt beyond a reasonable doubt before, what makes this case different such that we honestly believe we will be able to do so now?" If they cannot answer that question for the three remaining cases, the only ethical choice is to dismiss them.
Freddie Gray was arrested on April 12, 2015. The police van in which he was transported made six stops, the last at the Western District Police Station, before an ambulance took him to the hospital, where he died on April 19 from a fatal spine injury allegedly sustained in the van. The six police officers who have been charged in Gray's death played various, and sometimes overlapping, roles in his arrest and transportation.
Lt. Brian Rice and Officer Edward Nero, who were each acquitted, and Officer Garrett Miller, who has yet to be tried, all took part in largely the same sequence of events in Gray's arrest. All were charged with assault for detaining Gray, allegedly without justification, and with reckless endangerment for their roles in putting Gray into the police van without buckling a seat belt around him.
In acquitting Officer Nero, Judge Williams said there were "no credible facts" to show that the officer was directly involved in Gray's arrest, and said testimony showed Officer Nero's role in putting Gray in the police transport van was minimized by the actions of others and was reasonable given his training. Lt. Rice was similarly acquitted. What rationale, then, could possibly support the prosecution of Officer Miller?
Officer Goodson drove the transport van from Gray's initial arrest to its arrival at the Western District. Sgt. Alicia White, who has yet to be tried, and Officer William Porter, whose first trial ended in a hung jury, became involved when the police van was en route, but only after it had made its second stop. The charges against them were predicated on failing to call for medical assistance.
In the Goodson decision, the court found that Gray sustained the critical injury between the second and sixth stops. According to Judge Williams, "The critical questions are whether, prior to stop six and after stop two, were there sufficient indicators that an average officer in the position of the defendant would have known to seek medical treatment pursuant to [general order] K14 for Mr. Gray and, if so, whether the failure of the defendant to get treatment for Mr. Gray rose to the high level of negligence such that the defendant is criminally culpable."
Judge Williams closely analyzed the information available to the officers between stops two and six. In acquitting Officer Goodson, the court found there was not sufficient information to conclude that medical assistance was necessary. The court also accepted that Officer Porter did not believe that Gray was in medical distress before stop six. What could Sergeant White have known that Officers Goodson and Porter did not? If the state has no such evidence, the prosecution of Sergeant White should not proceed and, regardless, Officer Porter should not be retried.
There certainly does not appear to be any remaining evidence that would create a reasonable expectation in the minds of the prosecutors that they are likely to secure a conviction. If that is so, legal ethics require dismissal of the remaining cases. But if Ms. Mosby persists, and any of her subordinates refuse on principle to violate their professional responsibilities, the spectacle of a mutiny may be the tipping point beyond which this once popular young prosecutor cannot recover. That is, if she isn't already there.
Charles N. Curlett, Jr., a former Manhattan assistant district attorney, is the managing partner of Levin & Curlett LLC and the current chair of the Criminal Law Section of the Federal Bar Association. His email is ccurlett@LevinCurlett.com.