My View: Baltimore Prosecutor May Have Overcharged, But That’s What Prosecutors Do

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Marilyn Mosby, Baltimore state's attorney, speaks during a media availability, Friday, May 1, 2015 in Baltimore. Mosby announced criminal charges against all six officers suspended after Freddie Gray suffered a fatal spinal injury in police custody.   (AP Photo/Alex Brandon)
Marilyn Mosby, Baltimore state’s attorney, speaks during a media availability, Friday, May 1, 2015, in Baltimore. Mosby announced criminal charges against all six officers suspended after Freddie Gray suffered a fatal spinal injury in police custody. (AP Photo/Alex Brandon)

This is the sixth year the Vanguard Court watch has covered the Yolo County Courts. In that time there have been a lot of trials we have covered and prosecutions we have followed.   While there have been times when the Yolo County DA’s office has overstepped their bounds, for the most part the biggest complaint we have is overzealous prosecution and the overcharging of cases.

Look no further than the “repo man” case this week – the jury ended up sorting through it and found the defendants guilty of vandalism. That is about what the case was – yet the DA had put grand theft, robbery and battery charges over some or all of the defendants. A less zealous prosecution might have gotten the same result without taking the case to trial, wasting time, money and energy on a case that was really an escalated dispute with a bank – a civil and not a criminal matter.

I point this out because, when the Baltimore prosecutor announced the charges for the death of Freddie Gray, she was accused of all sorts of things from having a close relationship with the attorney for the family of Freddie Gray to being politically motivated and to have overcharged the case.

Some likened her to Michael Nifong – but Mr. Nifong in his zealous pursuit of the Duke Lacrosse Team crossed from typical prosecutorial overcharging into egregious prosecutorial misconduct. There is little doubt there were political motivations for his ultimately getting disbarred – unfortunately, while egregious, much of what he did is commonplace when you look at the world of prosecutorial misconduct and wrongful convictions.

Most egregious was his falsifying of evidence, most notably the fact that he and the DNA lab directory conspired to withhold exculpatory DNA evidence from the defense. However, while Mr. Nifong’s conduct is indeed egregious, New Orleans District Attorney Harry Connick’s office withheld evidence favorable to the defense in at least nine death row cases. Four death row convictions were overturned because of the misconduct.

In the case of John Thompson, who had more than six execution dates before being exonerated when the defense, by happenstance, discovered blood evidence on microfiche hidden for 15 years, and later discovered that Mr. Connick’s office had destroyed 10 pieces of evidence and withheld the names of witnesses and police reports from the defense.

Unlike Mr. Nifong, Mr. Connick would not be disbarred and the US Supreme Court on a 5-4 vote overturned a $14 million award to Mr. Thompson, ruling that they could not hold the DA’s office liable because of the failed pattern of misconduct in Mr. Connick’s office.

In her dissent, Justice Ginsburg wrote, “The conceded, long-concealed prosecutorial transgressions were neither isolated nor atypical.” She cited ten items of evidence that were withheld from Thompson’s defense, including police reports, audiotapes and blood evidence that would have seriously undermined John Thompson’s conviction.

But Marilyn Mosby has not committed any type of misconduct – all she has done is what most prosecutors do – taken a case that appears more suited for manslaughter and charged the main culprit with second degree murder.

This week, the Atlantic interviews David Jasos, professor at the University of Baltimore School of Law. As they note: “There’s good reason to think that Mosby was driven by political considerations, and it’s quite possible that the charges she filed against the officers are stronger than she can get a conviction for. While that’s cause for concern, it’s also absolutely typical in criminal cases involving defendants who aren’t police, Jaros says. Prosecutors commonly overcharge, they don’t always wait for a thorough investigation, and they are susceptible to outside influence.”

My problem here is that there seems to be inconsistency on both sides of the fence on this. Conservatives will point out Michael Nifong as their poster-child for overzealous prosecution but ignore Harry Connick and a whole host of other overzealous prosecutors who are just as politically motivated but in the other direction – to make sure they appear tough on crime and rid the world of dangerous criminals.

Those on the left need to be consistent as well. Strong attention has been given in recent years to prosecutorial misconduct, but not enough attention has been given to overzealous prosecution. Professor David Jaros strikes what for me is the perfect tone and straddles the line where it needs to be straddled.

He has the background to be taken seriously. Not only does he teach criminal law, he was a former attorney at the well-respected Bronx Defenders in New York and has written on how to discourage police abuse.

He told the Atlantic, “I love how surprised people are by the fact that a prosecutor may have overcharged. This is something prosecutors do all the time, as a strategic choice, for various reasons, and it’s ironic that suddenly the [Fraternal Order of Police] is up in arms over this.”

The only surprising element he found is that “we see a criminal-justice system moving rapidly to respond to allegations of police misconduct.”

Professor Jaros added, “Did she move too quickly? A lot depends on how much she was relying on the police’s own investigation, because they had given her their report something like 24 hours before she actually came out with the charges. “

“If anything, the overwhelming concern is that prosecutors and the police work together every day. There was considerable concern about whether the prosecutor in Ferguson was vigorously pursuing the police officer in that case and whether there were divided loyalties. In cases where the process seems to have moved more slowly, I think the question has to come up of why are those cases moving much slower than other cases that the prosecutor’s office takes on. But certainly there are reasons for us to think that we need institutions other than the police to be investigating and policing the police,” he continued.

Professor Jaros notes, “If the facts as Marilyn Mosby related them in her press conference were close to what was known, it would appear to me very hard to successfully convict for second-degree murder.”

However, that does not mean that the police officers get off scot-free here. Professor Jaros continues, “It’s not necessarily a huge hurdle to get manslaughter or negligent homicide.”

In other words, what he is arguing is not that the prosecutor is charging innocent people with a crime, it’s that she is overcharging them.

The problem is, “That’s what we see in tons of criminal cases! I think there’s reason to be really concerned about that kind of prosecutorial overreach. But we can’t be concerned about it only in the cases involving police officers.”

One of the biggest concerns that Professor Jaros has is the close relationship between prosecutors and police. This comes up a lot in cases where the police are accused of wrongful acts and the prosecutors do not bring in an independent investigator to probe the case.

Professor Jaros explained, “There are reasons to be troubled by the close relationship of prosecutors and the police and whether or not prosecutors are vigorously going after bad police work. It was a real surprise when the prosecutor in Ferguson simply put all the evidence in front of the grand jury—bad witnesses, exculpatory evidence—and said, you know, I’m going to let the grand jury decide. I’m going to let them weigh everything. That’s not a bad thing—if they did that in every case. But if they’re not revealing the weaker evidence, potentially exculpatory evidence in the average case involving often, frankly, poor and minority men, but only doing that in cases involving police officers, then we get a feeling that the criminal-justice system is rigged one way and not the other.”

As he points out, “We look at the seemingly weak effort of the prosecutors in Ferguson, and it can’t not raise concerns about whether or not prosecutors are sufficiently independent from the police that they can do a good job litigating these cases.”

While Professor Jaros is concerned about the overreach, overall, he seems pleased that the Maryland prosecutor is taking the matter seriously: “Hopefully this is a little bit of a bright new day. Marilyn Mosby clearly has come out and said she’s going to pursue these cases. It remains to be seen whether or not this a one-time event because it was politically expedient, or in fact prosecutors are going to start taking their job of policing the police and at least charging them with crimes when they’re committed seriously.”

Professor Jaros is also concerned about the impact of the political pressure on Ms. Mosby.

“I think there are once again serious reasons to be concerned about the political pressure to come out quickly and charge very serious crimes because there was a very real interest in calming the city. We don’t want those political interests to affect the prosecution of an individual defendant and their constitutional rights and what’s going to happen to them,” he said.

However, he added, “At the same time, that’s what happens in tons of other cases.”

(There is a lot more to Professor Jaros’ interview then the snippets posted here – I highly recommend you read the entire thing).

My takeaway points are as follows:

First, I agree with Professor Jaros that this looks more like negligent homicide that actual intentional murder. Unless they can prove that the police gave Mr. Gray an intentional “rough ride” I think what you have is failure to follow procedures such as the seat belt, and failure to get prompt medical attention leads to murder, and since they checked on him multiple times, these offenses themselves are not minor.

A lot was made of the illegal arrest and perhaps that plays towards the murder charge, but from the facts as we know them right now, it almost does not matter.  They either ignored his physical condition or they didn’t.

Second, I think Ms. Mosby did overreach with the charges here (but again we are talking second degree murder versus negligent homicide), but I think those who are concerned with the handling of this case need to really understand that this is more typical than not. There is often political pressure, particularly in a high profile case, to charge quickly and overcharge, and we see this all the time.

Third, prosecutorial misconduct is a serious problem in our system. But right now, there is no evidence of it in this case. And while Michael Nifong remains the posterchild for some, they should not ignore the Harry Connicks of the world who may not have gotten the headline that Mr. Nifong’s case did, but they were every bit as egregious.

—David M. Greenwald reporting

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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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25 thoughts on “My View: Baltimore Prosecutor May Have Overcharged, But That’s What Prosecutors Do”

  1. Barack Palin

    I think Ms. Mosby did overreach with the charges here but I think those who are concerned with the handling of this case need to really understand that this is more typical than not. There is often political pressure, particularly in a high profile case to charge quickly and overcharge, we see this all the time.

    So the guy who rails against overcharging is now making excuses for the obvious overcharging by Mosby.

    1. David Greenwald Post author

      That’s certainly not the intent of the piece. I don’t see a single excuse for her overcharging. My only point is a factual one, it is more typical than not. If you want to rail against the overcharge here, you should atl east acknowledge it’s common practice and rail against it in general. As I said at the beginning, the overcharge is small here in comparison, it seems a negligent manslaughter is more appropriate. With the same caveat as the professor points out – unless there is additional information she has not released yet that would indicate an intentional rough ride.

  2. zaqzaq

    Once again David misses the real issue which is the charging of Miller and Nero with false imprisonment, assault and misconduct in office.  These officers are not charged with manslaughter.  They have not been charged with the death of Gray.  Mosby’s theory is that the officers illegally arrested Gray for the knife.  She says they were wrong because the knife was legal and by arresting Gray for possessing a legal knife they broke the law and should be charged with a crime.  In her lengthy (political and possibly unethical) speech she claims that her investigation determined that the knife was legal pursuant to Maryland law.  Gray was arrested for violating a Baltimore City Code section which is more restrictive than Maryland law.  The Baltimore Police Department task force that investigated Gray’s death determined that the knife was illegal under the Baltimore Code section.  She does not claim that the officers knew the knife was legal and then arrested Gray or that they conspired to illegally arrest Gray.  She simply states they were wrong and charges are warranted.  This sounds like a strict liability standard with out any illegal intent by the officers.  If I were either Miller or Nero I would go place Mosby under citizen’s arrest for false imprisonment, assault and misconduct in office for being wrong in charging those offenses.  I would do it now and not wait.  It is the same legal theory under which they were charged.  It would also be the easiest way to force Mosby to disqualify herself from the case.  This would force a judge to decide if the knife was legal sooner than later.  At some point I believe a judge will have to determine who is right.  I would hate to be that judge if my job is based on an election.  Another reason why the case will get moved to another jurisdiction.

    This leads to the bigger policy issue concerning what is  done when officers are wrong when they make an arrest because this is not uncommon.  The standard under which they make the arrest is much lower than what is required to convict someone at trial.  They are often not afforded hours or days to review the facts and law in making their determination.  Officers have qualified immunity in civil court if they have a good faith belief that the arrest is valid.  I wonder if they can claim this as a defense?  It will be interesting to see if Mosby’s office has previously charged someone with illegally possessing a spring assisted knife like the one possessed by Gray.  Have people been convicted.  Has the Baltimore Police Department had training on determining if spring assisted knifes are illegal?  It is also disturbing that these arrests had political overtones to them.

    I must confess that I was unaware that these spring assisted knives even existed prior to reading about this case.  You can find examples online with videos by doing a simple google search.  CNN had a nice example in one segment.

    On another interesting side note it appears that Mosby put the wrong date of birth and home address in the charging document for two individuals who were mobbed by the press seeking comment.  Their neighbors were contacted by the press inquiring about them.  This is just another example of the haste with which Mosby acted on Friday.  I wonder if they can sue her for the emotional distress she caused them.

    There were CNN comentators that opined that she violated ethical cannons for an attorney based on the detailed information she presented in her speech.  She basically tried the case in the media making a number of factual assertions.  This is problematic compounded by the fact that she may legally be wrong concerning the facts and law concerning the officers mentioned above.

    Another concern is that she could make this about the Baltimore Police Department and further erode the credibility of this department and alleging a cover up by the police when they determined the knife was illegal.  This would resonate with the police should not be policing themselves crowd.  This has a number of potential dangers for the city of Baltimore.  Thankfully I do not live in Baltimore.

  3. PhilColeman

    “There were CNN commentators that opined that she violated ethical cannons for an attorney based on the detailed information she presented in her speech.  She basically tried the case in the media making a number of factual assertions.”

    First time I’ve heard this analysis and had the same immediate impression. Not being an attorney, and not familiar with distinctions of Maryland jurisprudence compared to California, I withheld public comment. She sure appeared to be pandering to a very public audience. Courts don’t like DA’s trying their case first in the public venue. Leave that to posturing defense attorneys with weak cases.

    The Attorney General is probably being advised to not personally prosecute these cases, although her vanity may decide otherwise. I’m continually struck by the naiveté of the Maryland Attorney General and surprised by how amateurish she appears to anybody familiar with the criminal justice system.

     

  4. Davis Progressive

    i don’t agree that it was an overreach on the second degree murder charges.  first, you have a questionable arrest.  even if it’s a legal arrest, you still have several aggravating factors: (1) lack of seat belt, (2) multiple stops, (3) increasing signs of distress, (4) they failed to account for all of the stops initially, (5) they found the guy unresponsive by the last stop… at some point this goes beyond negligence.  now maybe at the end of the day, the jury looks at all of the facts and concludes, this is just negligence, that’s fine, but i don’t see that as an overreach.  certainly not compared to some of the things we see in yolo.

    “depraved heart” describes a person who did not intend to kill, but acted with a reckless disregard for human life. given the facts here, that’s not completely unreasonable.

    1. TrueBlueDevil

      Wouldn’t multiple stops to check on his condition show that they were being careful? Imagine he was banging on the van, and they never stopped… the Libs would be crying careless and callous treatment.

      Mosby: “Young people, this is our time” … doesn’t sound professional, and sounds like a clear bias.

      1. Davis Progressive

        that’s not what happened.  what happened is that each time they stopped, his condition deteriorated and yet they continued on their way and failed to call for medical attention.

  5. Davis Progressive

    i want to address zaq’s post.

     

    there would seem to be a fairly interesting legal question.  there baltimore city code that says a person can’t carry or possess any knife “with an automatic spring or other device for opening and/or closing the blade, commonly known as a switch-blade knife.”

     

    there is police task force that investigated the death that analyzed the kinfe and determined that it was “spring assisted” and in violation of the city’s law.

     

    however, the knife being illegal or legal is not the only issue there, there is also the question of probable cause to stop him – and if they didn’t have probable cause to stop him, then it’s irrelevant as to whether he had a kinfe.

     

    finally, know what the prosecutor has.  she maintains that there is evidence through their investigation to substantiate the charges.  at some point they have to have a preliminary hearing or a grand jury hearing to put on evidence that would substantiate the charges or they get dropped.

    1. zaqzaq

      DP,

      Aren’t you mistaken.   The correct standard for the stop is a “reasonable suspicion” not “probable cause” as I pointed out a week ago.  We know that Freddie Gray was in a high crime area known for drug dealing.  He made eye contact with the officer and then ran away.  I did a google search for “when is running from police probable cause for arrest” and found this nugget.  In Wardlow, the Supreme Court held officers had reasonable suspicion of criminal activity based solely on presence in a high-crime area combined with “headlong flight” from police. Wardlow, 528 U.S. at 124. [viii].  The articles went on to explain that the officers only need a “reasonable suspicion”  to detain someone and they can also do a search for weapons during this detention.  Do you understand that reasonable suspicion is a lower standard that probable cause?  Are you taking the position that the US Supreme court is wrong?  That the Maryland courts should ignore that case?  Are you taking the position that Gray did not run form the police or that that part of Baltimore is not a high crime area?  Other than you using the wrong standard you have not identified what was wrong with the original detention?

      I agree that at some point a judge will have to decide the legal issue concerning the knife.

      I still think that Officer Nero and Miller should make a citizen’s arrest using the same flawed legal theory that Mosby is using.  At a minimum it will get her and her office out of the case.   Maybe they should ask AG Lynch to conduct a civil rights investigation into the charging decision of Mosby.

      1. Davis Progressive

        you are correct -r easonable suspicion not probable cause.

        however, there seems to be some dispute over whether running is enough to create reasonable suspicion.

        this is a discussion in an ap article that talks about the supreme court decision:

        The second is lower — reasonable suspicion. The officer must still have specific facts warranting a stop, but not necessarily know whether a crime has been or will be committed. This is the pretext often used by police for “stop and frisk” encounters, and the fact that Gray was in an identifiable high-crime neighborhood adds to the justification by police.

        “Courts have found that flight from police presence in a high-crime area creates reasonable suspicion warranting an investigatory stop,” said Michael Grieco, a former Miami-Dade County prosecutor now in private practice. “Police are only supposed to use enough reasonable force for apprehension and we are repeatedly seeing the products of excessive tactics.”

        Others said courts have split on exactly what reasonable suspicion entails. Donald M. Jones, a University of Miami law professor and Baltimore native, said Gray’s act of simply running away may not have been enough.

         
        “That is very thin. People run for many reasons. Many people have reasons to be afraid of the police,” Jones said. “I think that is ambiguous, but the courts are divided on that.”

        1. zaqzaq

          So professor Donald Jones does not like the Wardlow decision by the US Supreme Court  but it is the law of the land.  Other courts do not get to ignore it if they disagree with the ruling.  What other courts are split on the issue?  It would be nice to have some states and court rulings identified instead of some some ambiguous opinion by an ivory tower bound professor.  After all we know that university professors are always well grounded.  Interesting that he did not identify Maryland courts as being divided on this issue.  How about some actual cases from judges that cover this issue.

        1. Davis Progressive

          they are trying to get her removed from the case.  that almost never succeeds – and for good reason.  the case in orange county, the judge removed the ocda’s office from the case and it’s being challenged.  there was far more egregious conduct in that case.

        2. Barack Palin

          I believe this case gets moved, no way these guys can get a fair trial in Baltimore.  Mosby will definitely be removed from the case.

        3. Davis Progressive

          that’s a high standard as well – think about the notorious cases in yolo county –  daniel marsh, topete, halloween homicide, zolorovich – none of them got moved.  the baltimore case is as well known outside of baltimore.  my guess is you won’t see it moved.

        4. zaqzaq

          If the claim is denied they can start the civil proceedings.  It would be interesting to see her deposed while the criminal case is still pending.  I still think they should do a citizen’s arrest on Mosby.  That would really ratchet up the case.

  6. wdf1

    Just got through listening to a good radio-documentary piece that some interesting insights into policing.

    Law and Disorder 2: Citizens, cameras and cops

    When you hear the charge “assaulting a police officer,” you might assume that an officer has been hurt or injured while serving the community. But in Washington, D.C., you might not be able to take so-called APOs at face value.
    Reporter Patrick Madden of WAMU found that the charge of assaulting a police officer, which is meant to shield police from danger, also can be used as a tactic against citizens.
    Students at the Investigative Reporting Workshop at American University and WAMU researched 2,000 cases to see where most APO charges go down in D.C. Check out the map they made to see where these arrests took place. Notice that concentrations occur in the central part of the urban area and in predominantly black neighborhoods in the Southeast.
    Nine out of 10 people charged were African American, even though half of the district’s population is black.

  7. Frankly

    Boy, are all those that jumped on the cop-hating, race-baiting, social-justice crusade to crucify these cops and embrace this very troubled DA, squirming now.  They are looking for a thimble of nuance to save face that is already far gone.

    With each case like this where the media and left cry is RACIST AND MILITARIZED COPS KILL ANOTHER BLACK MAN but then we find out that the cops basically did their job and the so called victim was actually responsible for his own tragedy, and the numbers are mounting, mounting, mounting, there are a lot of these media and left people losing complete credibility for being rational and objective on the subject of race and law enforcement.

    This DA is either incompetent or a political hack.  In either case, I hope her life gets very miserable now for what she did to those cops.

     

    1. zaqzaq

      The charges against Nero and Miller will not survive a preliminary hearing or a grand jury if she presents all of the evidence.  I do not see a judge allowing this to go forward against these officers if the judge believes they had a good faith belief that the knife was illegal.

  8. zaqzaq

    No, I am not a lawyer.  You can learn a lot online these days or watching TV.  I watched a lot of the Zimmerman trial, read transcripts and reports that were released in the Ferguson matter and learned to do word or phrase google searches.  There are a lot of free advise lawyer websites that explain certain things.  I stumbled on Wardlow.  The mainstream media kept running with the theme of Gray just running from the cops and that this behavior was legal and the cops had no reason to arrest him.  This put the police in a bad light and was not accurate.  I began to assume this was the law based on the coverage.  There was no mention that running from the cops in a high crime area can form the basis for stopping Gray.  I think the faulty media coverage on this issue increased tensions in Baltimore.  I found a civil case in Baltimore where the judge determined that the officer did not have some sort of immunity because he did not have a good faith belief that the person he arrested had committed a crime.  The case talked about policy reasons for this rule.  They looked at what the average officer would believe was illegal.  If an officer can have immunity in a civil case for a good faith belief why wouldn’t that apply in the criminal case?  Especially now since the homicide task force determined that the knife was illegal.  There are good policy reasons for not arresting officers every time they are wrong.  I have kind of latched onto this issue.  You may note that I have not really commented on the validity of the death charges.  There is so much information that we do not know and it looks complicated that commenting on it is challenging.  But I did notice that Mosby announced that the fatal injuries occurred in the van and that every Baltimore resident I saw interviewed by the media believes that the fatal injury was delivered by the police during the arrest.  I suspect that a real lawyer would laugh off my have the officers do a citizen’s arrest on Mosby for false arrest, assault and that misconduct in office crime. But seems only fair to me and would be hilarious to see a booking photo of Mosby.

  9. zaqzaq

    I just found the below in a Yahoo News article.  It would seem to support the argument that Mosby is guilty overcharging Nero and Miller even if the knife was legal.  Our justice system allows the officers to be wrong according to this US supreme court case.  Officers do not have the hindsight that lawyers do when evaluating the propriety of the arrest.
    But in the end, the charges of illegal imprisonment may not hinge on the details of Maryland’s knife law. Instead, the question may be one of whether officers are legally liable for knowing the exact wording of laws. Even if objective observers would declare Gray’s knife legal, “is it still unreasonable for the officer to think that it could be an illegal knife? That’s a close call,” says David Gray, a professor at the University of Maryland School of Law.
    In Heien v. North Carolina in December, the Supreme Court ruled that cops are allowed to make such “reasonable mistakes of the law.” A motorist was mistakenly pulled over for having one brake light out, even though that was legal under state law. A search of the car found cocaine.
    The motorist claimed police had no reason to pull him over. The Supreme Court sided with the officer. “The question here is whether reasonable suspicion can rest on a mistaken understanding of the scope of a legal prohibition,” Chief Justice John Roberts wrote for the court in the 8-to-1 decision. “We hold that it can.”
    In her dissent, Justice Sonia Sotomayor asked where that left everyday citizens: “One wonders how a citizen seeking to be law-abiding and to structure his or her behavior to avoid these invasive, frightening, and humiliating encounters [with police] could do so.”

    1. Davis Progressive

      i did a lot of reading on this, this weekend.  the key thing is we don’t have enough information about what evidence mosley has to say if it is legal or illegal.  i agree with you, police get a lot of benefits of the doubt and a technically illegal arrest would not rise to a criminal act necessarily.  so until she puts on that evidence either to a preliminary hearing or to a grand jury, we’re guessing.

      “A motorist was mistakenly pulled over for having one brake light out, even though that was legal under state law. A search of the car found cocaine.”

      which isn’t comforting to me.  although the vanguard covered a couple of cases in yolo last year where evidence was suppressed by judge rosenberg based on a lack of probable cause to search the vehicle.

      1. zaqzaq

        Unless she can show that the officers knowingly and purposely arrested Gray knowing the knife was legal she will lose.  She has not alleged that the officers conspired with each other to violate the law when arresting Gray.  We do  know that the Baltimore homicide task force determined the knife was illegal.  With the Baltimore PD determination that the knife was illegal how does she get there?  You have taken stronger positions on the murder charge being appropriate with more missing/unknown evidence.

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