Baltimore prosecutor Mosby shockingly incompetent

It is already clear that Marilyn Mosby, the state’s attorney who is prosecuting the Baltimore Six, is not up to the responsibilities of her job.  The only questions are: 1. how deeply incompetent? and 2. what consequences will result from her bungling?

The second question is the more important one, for Mosby has set up her prosecution as a response to the “No justice, no peace” movement.  If and when she fails to secure a conviction through her ineptitude, then by the standard of the mob to which she is catering, more riots will be justifiable and therefore the likely result.  When she promised “justice for Freddie Gray” and omitted justice for the accused, she set expectations that it looks like she may not be able to fulfill.

Now, as to how deeply incompetent, let’s look at the micro-level first.  Justin Fenton of the Baltimore Sun reports that sweating the details is not the watchword of the office she supervises:

When charges were announced Friday against Alicia White for the death of Freddie Gray, her phone started buzzing from journalists and bail bondsmen. 

The problem was, they were calling the wrong Alicia White. The elementary school cafeteria manager from East Baltimore was not the Baltimore Police sergeant charged with manslaughter in the high-profile police custody death - even though court records listed her.

The Sun was among those who contacted the other White on Friday based on the information in court records, seeking comment from her or her family.

"The middle initial was off. Her address, her height, her weight, her driver's license number - all of the information was my client's information," said Jeremy Eldridge, an attorney who says he has been hired by the resident.

"Her life has been a living hell the past four days," he said.

Ms. White was not the only defendant whose name was bungled in the critical official document produced by the state’s attorney’s office:

An attorney for Lt. Brian Rice said his client's information was also entered incorrectly when prosecutors filed charges, but declined further comment.

On Friday evening, Tammy and Brian Rice of Brunswick, Md. said they were receiving multiple calls from reporters looking for the lieutenant. Brian Rice of Brunswick is a plumber, they said.

The Baltimore Sheriff's Office, which assisted the Baltimore State's Attorney's Office in charging the officers, declined to comment and referred questions to prosecutors, who could not immediately be reached. 

Small details make an enormous difference in legal proceedings.  This particular error has cost innocent citizens much harassment, but the (incorrectly) named defendants turned themselves in anyway, so no doors were broken down, as might conceivably have happened as a result of this negligence.

But what if the careless staff of the state’s attorney’s office makes other errors?  It is clear that they are not painstaking in their approach to their work.

The second example of Ms. Mosby’s incompetence is much more serious, and at the highest level of consequentiality.  As Andrew C. McCarthy explains, she has charged the defendants with a series of crimes that depend on mutually inconsistent theories of culpability.

Ms. Mosby has filed charges that convey four different theories of homicide.

Let’s consider the officer described as most culpable, Caesar R. Goodson Jr., who apparently drove the van in which Mr. Gray was fatally injured. Against him, the prosecutor levels charges of (1) second-degree murder, on the theory known in Maryland as “depraved heart” (and known in some other jurisdictions as “depraved indifference”); (2) involuntary manslaughter; (3) vehicular manslaughter by gross negligence; and (4) vehicular manslaughter by criminal negligence.

We’ll start with the first two. “Depraved heart” murder requires the prosecutor to prove that the defendant caused a loss of life intentionally while exhibiting a shocking indifference to human life. By contrast, involuntary manslaughter is an accidental killing – which means, naturally, that there was no intent to cause a loss of life.

One with a depraved heart does not act by mistake — the classic example is the savagery of a shooter who willfully fires a gun into a crowd of people, knowing but not caring that someone will likely be killed. That is the near antithesis of negligently causing an accident that results in death.

So what are we to make of Officer Goodson? Is he a fiendish depraved killer or a clueless bumbler? Based on what the prosecutor has charged, who knows? [boldface in original]

McCarthy explains other mutually inconsistent charges and then concludes:

Under double jeopardy principles, the defendants cannot be convicted on all the varying homicide charges she has brought. When offenses are so similar to each other that one might be regarded as a subset of the other — known in the criminal law as a “greater offense” and a “lesser-included offense” — double jeopardy principles bar prosecution for more than one of them.

To navigate this legal issue, and to serve the overarching aim of presenting a single, coherent theory of guilt, experienced prosecutors will usually charge only the most severe provable offense. This way, a clear, non-contradictory, evidence-based narrative can be built around that charge. It is then up to the defense lawyers to ask for the jury to be presented with the possibility of convicting on lesser-included offenses — a strategy that reduces the likelihood of acquittal but increases the chance that the defendant will avoid conviction and sentence on the most severe charge.

Here, to the contrary, Ms. Mosby has thrown against the wall several different homicide charges with all their internal distinctions that will force trial prosecutors to make contradictory arguments about the police officers’ actions and states of mind. She’s obviously hoping that something will stick.

To understand how devastating this inconsistency will be in the hands of skilled defense lawyers, McCarthy imagines what counsel could say to the jurors:

If the prosecutor herself cannot figure out what happened here, how can you fair-minded ladies and gentlemen of the jury possibly conclude, unanimously, that there is proof beyond a reasonable doubt supporting a murder conviction?

Marilyn Mosby has baited her own trap with her public comments announcing the indictments.  The violent mob she tried to propitiate will not be satisfied with the failure she is setting up for herself.

Hat tip: Michael Geer

It is already clear that Marilyn Mosby, the state’s attorney who is prosecuting the Baltimore Six, is not up to the responsibilities of her job.  The only questions are: 1. how deeply incompetent? and 2. what consequences will result from her bungling?

The second question is the more important one, for Mosby has set up her prosecution as a response to the “No justice, no peace” movement.  If and when she fails to secure a conviction through her ineptitude, then by the standard of the mob to which she is catering, more riots will be justifiable and therefore the likely result.  When she promised “justice for Freddie Gray” and omitted justice for the accused, she set expectations that it looks like she may not be able to fulfill.

Now, as to how deeply incompetent, let’s look at the micro-level first.  Justin Fenton of the Baltimore Sun reports that sweating the details is not the watchword of the office she supervises:

When charges were announced Friday against Alicia White for the death of Freddie Gray, her phone started buzzing from journalists and bail bondsmen. 

The problem was, they were calling the wrong Alicia White. The elementary school cafeteria manager from East Baltimore was not the Baltimore Police sergeant charged with manslaughter in the high-profile police custody death - even though court records listed her.

The Sun was among those who contacted the other White on Friday based on the information in court records, seeking comment from her or her family.

"The middle initial was off. Her address, her height, her weight, her driver's license number - all of the information was my client's information," said Jeremy Eldridge, an attorney who says he has been hired by the resident.

"Her life has been a living hell the past four days," he said.

Ms. White was not the only defendant whose name was bungled in the critical official document produced by the state’s attorney’s office:

An attorney for Lt. Brian Rice said his client's information was also entered incorrectly when prosecutors filed charges, but declined further comment.

On Friday evening, Tammy and Brian Rice of Brunswick, Md. said they were receiving multiple calls from reporters looking for the lieutenant. Brian Rice of Brunswick is a plumber, they said.

The Baltimore Sheriff's Office, which assisted the Baltimore State's Attorney's Office in charging the officers, declined to comment and referred questions to prosecutors, who could not immediately be reached. 

Small details make an enormous difference in legal proceedings.  This particular error has cost innocent citizens much harassment, but the (incorrectly) named defendants turned themselves in anyway, so no doors were broken down, as might conceivably have happened as a result of this negligence.

But what if the careless staff of the state’s attorney’s office makes other errors?  It is clear that they are not painstaking in their approach to their work.

The second example of Ms. Mosby’s incompetence is much more serious, and at the highest level of consequentiality.  As Andrew C. McCarthy explains, she has charged the defendants with a series of crimes that depend on mutually inconsistent theories of culpability.

Ms. Mosby has filed charges that convey four different theories of homicide.

Let’s consider the officer described as most culpable, Caesar R. Goodson Jr., who apparently drove the van in which Mr. Gray was fatally injured. Against him, the prosecutor levels charges of (1) second-degree murder, on the theory known in Maryland as “depraved heart” (and known in some other jurisdictions as “depraved indifference”); (2) involuntary manslaughter; (3) vehicular manslaughter by gross negligence; and (4) vehicular manslaughter by criminal negligence.

We’ll start with the first two. “Depraved heart” murder requires the prosecutor to prove that the defendant caused a loss of life intentionally while exhibiting a shocking indifference to human life. By contrast, involuntary manslaughter is an accidental killing – which means, naturally, that there was no intent to cause a loss of life.

One with a depraved heart does not act by mistake — the classic example is the savagery of a shooter who willfully fires a gun into a crowd of people, knowing but not caring that someone will likely be killed. That is the near antithesis of negligently causing an accident that results in death.

So what are we to make of Officer Goodson? Is he a fiendish depraved killer or a clueless bumbler? Based on what the prosecutor has charged, who knows? [boldface in original]

McCarthy explains other mutually inconsistent charges and then concludes:

Under double jeopardy principles, the defendants cannot be convicted on all the varying homicide charges she has brought. When offenses are so similar to each other that one might be regarded as a subset of the other — known in the criminal law as a “greater offense” and a “lesser-included offense” — double jeopardy principles bar prosecution for more than one of them.

To navigate this legal issue, and to serve the overarching aim of presenting a single, coherent theory of guilt, experienced prosecutors will usually charge only the most severe provable offense. This way, a clear, non-contradictory, evidence-based narrative can be built around that charge. It is then up to the defense lawyers to ask for the jury to be presented with the possibility of convicting on lesser-included offenses — a strategy that reduces the likelihood of acquittal but increases the chance that the defendant will avoid conviction and sentence on the most severe charge.

Here, to the contrary, Ms. Mosby has thrown against the wall several different homicide charges with all their internal distinctions that will force trial prosecutors to make contradictory arguments about the police officers’ actions and states of mind. She’s obviously hoping that something will stick.

To understand how devastating this inconsistency will be in the hands of skilled defense lawyers, McCarthy imagines what counsel could say to the jurors:

If the prosecutor herself cannot figure out what happened here, how can you fair-minded ladies and gentlemen of the jury possibly conclude, unanimously, that there is proof beyond a reasonable doubt supporting a murder conviction?

Marilyn Mosby has baited her own trap with her public comments announcing the indictments.  The violent mob she tried to propitiate will not be satisfied with the failure she is setting up for herself.

Hat tip: Michael Geer