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Op-ed

An all-or-nothing assessment of Marilyn Mosby does no one any good | GUEST COMMENTARY

Marilyn Mosby responds to well wishers as she arrives at the Garmatz Federal Courthouse to have her motions hearing on Thursday afternoon. In foreground is attorney A. Scott Bolden. She is asking for the charges against her to be dismissed due to “prosecutorial vindictiveness.” A federal grand jury indicted Mosby in January on two counts of perjury and two counts of making false statements on loan applications to buy properties in Florida.  April 14, 2022.

Our inclination to take a binary view of public officials and the actions they undertake, whether connected directly or not to their official positions, is currently on display in Baltimore. The federal indictment of Baltimore’s chief prosecutor, Marilyn Mosby, has led to some people treating her as a martyr prosecuted because of her race, her gender and her progressive policies as a prosecutor. Others view her as another ethically challenged politician, whose private morals do not match the ones she espouses in public, and a person deserving of whatever punishment she receives.

But such a binary assessment of substantive issues and prominent people — right or wrong, good or bad — is unwise and damaging, fostered substantially by the inevitable shrillness of social media. When it comes to Marilyn Mosby, such polarization is acute.

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In the aftermath of the death of Freddie Gray while in police custody in 2015, Baltimore divided into two camps: those who believed Ms. Mosby overcharged the officers who interacted with Gray before he died (a belief vindicated by the eventual acquittals and dismissals of the officers’ cases) and those who felt that charging the officers showed the public that police officers would finally be held accountable for crimes committed against minority communities. Those in the latter group asserted that her actions saved the city, sparing it from the substantial rioting that accompanied similar cases in other cities.

To believe that both could be true would force us to do a painful balancing of reward versus penalty concerning Ms. Mosby’s decision. It is far easier intellectually and emotionally just to choose one side and dismiss all arguments posed by the other side. Easier — but less accurate and less useful.

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We have seen this binary response to Ms. Mosby more recently in her decision not to prosecute certain crimes. Will such a decision play a role in reducing the outrageous number of people, especially Black and brown ones, who are incarcerated or whose lives are seriously upended by facing minor criminal charges? Or will her decision contribute to more crime, petty to some, but significant to the people living on streets where drug use and prostitution are prevalent, and will it further complicate her frosty relations with the police? If the answer is yes to both questions, acknowledging that makes the assessment of her actions both more nuanced and more difficult, but also more thorough and realistic.

Now Ms. Mosby is charged with federal crimes. On first viewing, the charges against her seem to be either not that serious or capable of being explained away. Yes perjury is a serious crime, and those of you who have never overvalued a piece of furniture or anything else you gave to charity before signing your income tax form under such a penalty are free to emphasize that point. Can she argue that a property claimed to be purchased as a second home (in order to lower her interest rate) but was instead going to be a rental property is similar to houses bought by people who decide later to offer their second homes for rental through companies like VRBO?

Ms. Mosby is also charged with falsely claiming that she suffered financial loss enabling her to withdraw funds from a retirement account early without financial penalty — a benefit permitted in response to the pandemic. Even though she received a $10,000 raise during this time, can she claim a travel business she was apparently starting, but seemed to have no actual business, was the subject of this loss? Is there a timing or knowledge issue regarding whether she lied about the existence of a federal tax lien, another allegation she faces?

To all of these questions at this stage, we should answer with a firm: “I have no idea.” Due process and simple fairness require that we let the prosecution play out before we assess the guilt or innocence of Ms. Mosby.

Where we may not be able to wait, however, regards the decision whether Ms. Mosby should be kept on as state’s attorney. The law makes it very unlikely that she can be compelled to leave unless and until she is convicted of a crime. But at some point, city leaders, who have understandably remained largely silent in the immediate aftermath of the charges, will have to decide whether to pressure her into leaving. You may recall the strong words of both Ms. Mosby and her counsel demanding a quick trial to resolve the charges against her. In February she said, “What I’m asking for is to be tried right now because I am innocent, and the citizens of Baltimore deserve to know that as well before my election, which is four months out.” Recently, she requested and received a postponement of the trial until September — after the July Democratic primary, which in Baltimore is tantamount to election.

So in July Democrats in Baltimore will have to decide if they think Ms. Mosby’s accomplishments as state’s attorney outweigh her shortcomings, both her job-related ones and her activities outside her job. Once again, this is a decision that may not lend itself to a binary assessment. Would these charges have been filed were she not a progressive Black woman in a job of critical importance? I have no idea. But even if they would not have been filed, do we want a chief prosecutor who makes sworn statements that appear to be false, whether she was aware of the falseness or not?

Issues such as the presumption of innocence will have to be weighed against whether Ms. Mosby’s continuation as chief prosecutor is damaging to the city. And once again the decision should be made understanding and acknowledging that there are valid arguments on both sides. What is clear is that we do ourselves no favor by looking at multifaceted questions through only one lens.

Steven P. Grossman (sgrossman@ubalt.edu) is Dean Julius Isaacson Professor Emeritus at the University of Baltimore School of Law.


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