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