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Baltimore City State's Attorney Marilyn Mosby. (The Daily Record / Maximilian Franz)

Editorial Advisory Board: Prosecutors should speak with actions, not words

In the criminal justice system, prosecutors serve a unique role with special duties quite different from other lawyers. While a private lawyer’s duty is to provide zealous representation of a client, the Maryland Lawyers’ Rules of Professional Conduct impose upon the prosecutor “the responsibility of a minister of justice and not simply that of an advocate.” As the Supreme Court famously stated over 80 years ago, a prosecutor is “the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win the case, but that justice shall be done.”

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To inform this dual role of advocate and administrator of justice, the Rules of Professional Conduct, Rule 3.8, charges prosecutors with “special responsibilities” and duties to see that defendants are afforded procedural justice and that guilt is decided solely upon the evidence. These responsibilities include special obligations regarding pretrial publicity. In addition to the Rule 3.6 prohibition of lawyers’ extrajudicial statements that “will have a substantial likelihood of materially prejudicing an adjudicative proceeding,” prosecutors are especially admonished to “refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.”

Finding and adhering to the appropriate balance between roles as partisan litigant and quasi-judicial officer is difficult. But, riding the tide of public indignation following the death of Freddie Gray while in police custody, Baltimore City States’ Attorney Marilyn J. Mosby isn’t trying hard enough. She can find guidance, however, in the Court of Appeals’ 2002 opinion reprimanding the popular then-Montgomery Country State’s Attorney, Doug Gansler, for publically expressing his extrajudicial opinion regarding the guilt of two criminal defendants indicted by his office.

Fundamental rights

At the heart of the Court of Appeals’ Gansler opinion is the principle that “criminal justice must be carried out in the courtroom.” As Supreme Court Justice Oliver Wendell Holmes one stated, “[t]he theory of our system is that the conclusions to be reached in a case will be induced only by the evidence and argument in open court, and not by any outside influence, whether of private talk or public print.” Ms. Mosby should examine her public statements and actions in this light.

A criminal defendant has fundamental rights to a fair trial under the Sixth and 14th Amendments and extrajudicial statements by a prosecutor can serve to erode those rights. As the Court of Appeals has observed, “One outside circumstance that may affect a defendant’s right to a fair trial, and more specifically, his right to an impartial jury, occurs when an attorney makes a publicized, out-of-court, statement about the defendant’s case.”

Shortly before her public announcement of charges against six police offices in the Freddie Gray homicide case, Ms. Mosby spoke to a group of Baltimore clergy, alluding to the Gray case and promising to “pursue justice by any and all means necessary.” Days later, in her May press conference announcing the charges, Ms. Mosby said, “to the people of Baltimore and the demonstrators across America, I heard your call for ‘no justice, no peace.’’’ Vowing to “deliver justice to this young man,” she described her earlier conversation with the victim’s family, in which she told the family that “no one is above the law and I would pursue justice upon their behalf.” She went on, in extraordinary length and detail, to relate – seemingly as truth — allegations that would appear on their face to seal the guilt of the defendants.

Resist temptation

As a public prosecutor, Ms. Mosby has no client. She does not represent the victim and she should not appear to have pursued charges at the urging of any group of demonstrators. To do so ignores the Constitutional presumption that these police officers, like all defendants, are presumed innocent until proven guilty.

As if to reinforce her statements, Ms. Mosby later appeared on stage at the Prince concert staged to honor the victim, waving and basking in the approval of a gathering of those to whom the police officers’ guilt is assumed, causing widespread criticism even among those, including this editorial board, who had previously praised her quick and decisive actions.

We urge Ms. Mosby to temper her words and actions. Her public pronouncements, coming from the elected state’s attorney, have a stronger influence on the public than if spoken by a private attorney.  We call upon Ms. Mosby, still a newly elected prosecutor, to resist the temptation to join the public outrage sparked by the indictments for which she claims credit. She must recognize that every criminal defendant is entitled to enter a courtroom without being adversely affected by extrajudicial statements made to the media and intended for broad dissemination among the public that makes up the jury pool. That is especially so when the source is the city prosecutor herself.

Editorial Advisory Board members Daniel F. Goldstein, Elizabeth Kameen, Ericka King, C. William Michaels, William Reynolds and H. Mark Stichel did not participate in this opinion.


James B. Astrachan, Chair

Wesley D. Blakeslee

Arthur F. Fergenson

Daniel F. Goldstein

Caroline Griffin

Elizabeth Kameen

Ericka King

Stephen Meehan

C. William Michaels

William Reynolds

Norman Smith

Tracy L. Steedman

H. Mark Stichel

Ferrier R. Stillman

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the Board attempt to develop consensus on issues of importance to the Bench, Bar and public. When their minds meet, unsigned opinions will result. When they differ, majority views and signed rebuttals will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.