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Officers’ defamation lawsuits put Mosby’s statements in the spotlight

Baltimore City State’s Attorney Marilyn Mosby’s press conference May 1, 2015, from the steps of the War Memorial Building form the foundation of defamation lawsuits filed by five of the six police officers Mosby charged that day in connection with the death of Freddie Gray.(Photo illustration by Maximilian Franz)

Baltimore City State’s Attorney Marilyn Mosby’s press conference May 1, 2015, from the steps of the War Memorial Building form the foundation of defamation lawsuits filed by five of the six police officers Mosby charged that day in connection with the death of Freddie Gray. (Photo illustration by Maximilian Franz)

News of defamation lawsuits filed against Baltimore City State’s Attorney Marilyn Mosby by officers charged in connection with the death of Freddie Gray has trickled out recently as judges deny motions to seal the cases.

But all of the lawsuits actually were filed around May 1 for a specific reason – that day marked the one-year anniversary of Mosby’s promising “justice” for Gray when she announced the charges from the steps of the War Memorial Building. Defamation has a one-year statute of limitations.

“The filing for the defamation [claim] crept up rather quickly, and our decision was to really flesh out the facts that supported the defamation,” said Michael Glass, a lawyer for Sgt. Alicia White and Officer William Porter. “We really wanted to shore up the cause of action that was the most imminent and we wanted to make sure that it was thoroughly plead, acknowledging that there was time to file an amended complaint.”

White and Porter filed their suit in Baltimore City Circuit Court on May 2, the first day the court was open after May 1, which fell on a Sunday this year. That same day, Lt. Brian Rice filed suit in U.S. District Court in Baltimore. Officers Edward Nero and Garrett Miller filed their suits in federal court April 29.

Officer Caesar Goodson, the sixth officer charged, does not have any civil lawsuits listed in state or federal court as of Wednesday evening.

David Ellin, a Reisterstown solo practitioner who represents Rice, and Joseph T. Mallon of Mallon & McCool LLC in Baltimore, who represents Nero and Miller, declined to comment on the cases, citing Baltimore City Circuit Judge Barry Williams’ gag order on attorneys and defendants in the criminal cases.

But Glass, a Baltimore solo practitioner, said he is not bound by Williams’ order and noted another judge declined to seal the civil case.

“We actually filed a motion to seal the case in deference to the gag order that was imposed in the criminal case,” he said. “We certainly didn’t want to run afoul of Judge Williams’ order.”

Glass added his clients’ complaint likely will be amended and could include federal claims.

At her press conference last year, Mosby announced the charges against the six officers and claimed the knife recovered from Gray during a search was not illegal and therefore there was no probable cause to arrest him.

Mosby discussed her office’s “independent investigation” into Gray’s arrest and transport along with her finding that probable cause to charge the officers existed.

Rice’s complaint called the investigation “improperly motivated” and based on false statements by Mosby and Major Samuel Cogen of the Baltimore City Sheriff’s Office, also named as a defendant.

While White and Porter’s complaint is focused on claims of defamation, the other three officers also allege false arrest and constitutional violations.

Representatives from the local Fraternal Order of Police, which was critical of Mosby’s press conference last year, declined to comment this week on the civil lawsuits.

Timing ‘not ideal’

Steven H. Levin, a Baltimore defense lawyer and former prosecutor who has been following the officers’ trials, said civil lawsuits from criminal defendants typically come after their cases are over.

“It’s not ideal because I think a decision to sue is better made after the criminal case is behind you because then you’re in a better position to assess whether or not you want to continue to be involved in the court system,” he said.

Glass agreed the timing for the lawsuit is not what he would have chosen because his clients still have pending criminal trials – Porter will be retried Sept. 6 and White will be tried Oct. 13 – but they should be concluded by the time the civil trials begin.

“In terms of the length of time that it typically takes for a civil case in circuit court to work its way through, the likelihood is that the criminal cases will be resolved,” he said.

But Levin said he understands the plaintiffs’ desire to put Mosby on trial.

“I can certainly understand why a defendant who feels like they were unfairly charged, whose reputation has been forever damaged by Mosby’s extrajudicial statements at the War Memorial … would feel like they want to fight back,” said Levin, of Levin & Curlett LLC. “It’s not simply enough to fight back in the criminal fight and prevail, there’s still damage to your reputation and it’s cost the state’s attorney nothing at that point.”

Glass said his clients are frustrated because there are facts that have not been made public but they are bound by Williams’ gag order and cannot tell their side of the story.

“Certainly, being a police officer in Baltimore city and suddenly being thrust into the limelight in a negative way on a national stage is hard, particularly when you haven’t done anything wrong and there’s nothing to support the charges against them,” he said.

Privilege questions

Defamation cases based on a prosecutor’s comments are rare because the comments themselves are rare, according to Levin. But, based on court filings, the officers’ claims have merit, he said.

“We don’t typically see prosecutors engage in extrajudicial comments from the steps of the courthouse, or in this case the War Memorial,” he said. “It’s obviously discouraged by the courts and by the rules of professional responsibility. That’s why you don’t see that many defamation cases.”

The challenge, Levin said, will be overcoming Mosby’s immunity as a government official. A prosecutor acting in that role has absolute immunity but Mosby’s comments were extrajudicial.

“I think it’s a worthwhile claim and I think it’s got legs,” he said.

James B. Astrachan, a defamation attorney, said Mosby’s privilege – or lack thereof – may be a public policy issue for courts to decide.

“Do we really want to haul our state’s attorney across the coals because she’s making statements about the conduct of her office?” said Astrachan, of Astrachan Gunst Thomas PC in Baltimore. “Do we want to send a message that we want her cases to be tried in the courtroom?”

Had Mosby simply held a press conference reading the charging documents, the statements would most likely have been covered by her privilege as a prosecutor, Astrachan said. But if a judge finds her comments went beyond what was contained in court documents, they may not be privileged.

“These issues have been dealt with in Maryland before… but I think this is a case of first impression with these facts and I think it’s going to end up at the Court of Appeals,” he said.