01:59 - Source: CNN
Officers cleared in Freddie Gray's death

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Danny Cevallos wonders if the prosecutor had probable cause to prosecute police officers in Baltimore

If so, why did she drop the three remaining cases before trial? he asks

Editor’s Note: Danny Cevallos (@CevallosLaw) is a CNN Legal Analyst and a personal injury and criminal defense attorney practicing in Pennsylvania and the U.S. Virgin Islands. The opinions expressed in this commentary are his.

(CNN) —  

The decision by Baltimore prosecutors to drop all charges against three officers still facing prosecution in connection with the death of Freddie Gray raises some important questions.

Simply dropping the charges now against the remaining defendants is problematic, because it logically suggests that there was never sufficient evidence against any of the officers, and bolsters the arguments of critics who say the prosecution was purely political.

Danny Cevallos
Danny Cevallos

The death of Gray in police custody touched off protests and riots in April 2015. After his arrest on a Baltimore street, Gray suffered severe injuries, including a broken neck, in the van that took him to the police station. He died a week after the arrest. In May of that year, charges were filed against six officers.

Prosecutors enjoy unfettered discretion in choosing whom to prosecute. Once that choice is made, there is little periodic review of whether the case remains viable – until the verdict. Even with an acquittal or dismissal, the decision of a single prosecutor can destroy the lives of citizens. Such is the case here. These officers, in theory, have no convictions and clean records now. But do they really? Does it matter that their names aren’t on a criminal docket anymore, if they’re all over the Google landscape forever?

If the initial choice to prosecute creates such a ripple effect of disruption in the life of a defendant and his family, then surely that choice is a scrutinized process with institutional checks and balances, right? We hope so. But what if it’s not?

Prosecutors are subject to special rules, in addition to all the rules of professional responsibility of other lawyers:

MRPC 3.8(a) states: The prosecutor in a criminal case shall: (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.

And all lawyers, including prosecutors, are bound by this rule:

MRPC 3.6(a) states: A lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding.

Indeed, prosecutors have a unique ethical obligation. Their mission is not to win at all costs. Their mission is to do justice. They are held to higher standards of conduct due to their unique role as both advocate and minister of justice.

This is because the state’s attorney has almost complete discretion in determining whether to charge citizens with crimes. The prosecutor’s duty is not merely to convict, but to seek justice. That means her obligation is to protect not only the public interest, but also the innocent, while safeguarding the rights guaranteed to all persons, including those who may be guilty.

A bad start

Back on May 1, 2015, Prosecutor Marilyn Mosby held a press conference announcing that Freddie Gray’s death was ruled a homicide and that she was filing criminal charges against the six officers involved.

She famously spoke to her constituents, assuring them: “To the people of Baltimore and the demonstrators across America. I heard your call for ‘no justice, no peace.’”

A lot of people liked that press conference. They called it amazing. Except, that’s not really how prosecutors are supposed to make prosecutorial decisions. They’re not supposed to make charging decisions based upon sit-ins, or riots, or Twitter hashtags.

Prosecutors are definitely not supposed to use criminal charges to calm unrest or quell riots. In fairness to the prosecutor’s office, the statement was probably just a bit of rhetoric.

Mosby’s office would probably insist the decision was made based on the evidence, and not in response to the tides of public outcry. Today’s decision to withdraw prosecution, however, now undermines that earlier position.

Prosecutors differ from criminal defense attorneys in that they have additional limitations when dealing with the media or making public statements. Because the defense is cloaked in that presumption of innocence, a criminal defense attorney may argue in a public medium that the defendant is innocent. The rationale is that there is less risk of causing prejudice because the law already presumes the defendant’s innocence anyway.

It’s much different for prosecutors. Courts and scholars recognize that a prosecutor’s opinion of guilt is much more likely to create prejudice because she speaks with the authority of the government.

As a result, the Maryland courts hold that prosecutors must be particularly cautious to avoid making potentially prejudicial extrajudicial statements.

For argument’s sake, let’s assume the prosecutor’s office based their decision on the facts, not the riots. Let’s assume that Mosby’s statement was just some oratorical flourish. Still, the prosecutor’s duty is more than avoiding improper decisions. It’s avoiding even the appearance of improper decisions.

Again, in fairness, if a prosecutor has an abundance of damning evidence, an ill-advised statement or two should be forgiven, if the prejudice is minimal. But now it seems that this was never a case with strong evidence. Exhibit A? The reasons behind the decision on Wednesday not to prosecute.

Was there really probable cause to prosecute?

Prosecutors are not supposed to prosecute cases they don’t believe are supported by probable cause. It’s a rule that makes sense in theory, but is harder to apply in practice.

The prosecutor elected to try each of these defendants separately, acknowledging the possibility that there would be inconsistent verdicts, or, as it turned out, a run of acquittals.

But so far the verdicts have been consistent: Three of the six officers charged in the case have been acquitted, and now we’ll never know whether the remaining three would have been convicted or acquitted.

In a press conference Wednesday, Mosby attacked the police investigation into Gray’s death, citing “an inherent bias that is a direct result of when police police themselves.” She added: “We could try this case 100 times, and cases just like it, and we would still end up with the same result.”

It’s hard to tell what she means. Is she saying that the police sandbagged her case? Or is this another way of saying that the police failed to find the evidence that the prosecutor’s office wanted them to find?

When testifying, police will deny they start an investigation with a preordained conclusion and then curate the evidence accordingly. Instead, police will tell you they take an investigation where the facts and evidence lead them, objectively, and resisting the temptations of confirmation bias. This is what defense attorneys and the rest of us should hope they do; we don’t want police ignoring exculpatory evidence and only seeing the evidence that will help convict. Mosby’s comments today don’t acknowledge that as a possibility; instead, she intimated some blue wall of apathy somehow undermined her cases. Isn’t it possible the facts undermined the cases, and not the police?

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Even more concerning is this: If the prosecutor’s office really believed in each case against each individual officer, why drop any of the remaining cases against them? Did the prosecution’s evidence or the exhibit list for any of the remaining trials change substantially as a result of the preceding acquittals? No. The cases against the remaining officers were supported by exactly the same facts and probable cause as when they were charged last year. It shouldn’t make much difference if other, separate cases resulted in acquittals, especially if the prosecution believes in the case.

If the prosecution genuinely believed in a case, why just drop it? Is it because they are losing other cases? Fear of losing, or even getting shut out in a series, is not a valid reason for quitting a case against someone the prosecution believes has committed a crime.

It’s OK for a prosecutor to bring a case, if there’s enough evidence to support the “probable cause” standard, and it’s OK for a jury to look at that same evidence and acquit the defendant, concluding that there’s reasonable doubt about guilt.

What isn’t OK is for a prosecutor to determine there’s enough evidence to prosecute and make a permanent accusation that stains the lives of the accused – and then retreat in the face of a few losses in some other cases. If the prosecution didn’t believe in a conviction, maybe the time to drop the case was before it was brought.