More Mosby: “Evidence Cannot Be Released Before Trial”

Prosecutor Mosby is becoming the gift that keeps on giving.  Last Friday she was a heroine of the Progressive movement, and now just days later we find her rapidly sliding into legal parody of Onion-esque proportions.
As it becomes clear that there apparently exists virtually no evidence to support the vast majority of the charges brought against the six police officers accused of criminal conduct in the death of Freddie Gray, Mosby has stirred herself to a response:


Or, to quote her office’s statement (in its entirety) released yesterday (image embedded below):

While the evidence we have obtained through our independent investigation does substantiate the elements of the charges filed, I refuse to litigate this case through the media.

The evidence we have collected cannot ethically be disclosed, relayed or released to the public before trial. As I’ve previously indicated, I strongly condemn anyone in law enforcement with access to trial evidence, who has or continues to leak information prior to the resolution of this case. These unethical disclosures are only damaging our ability to conduct a fair and impartial process for all parties involved. (emphasis added)

Really, Prosecutor Mosby? The evidence we have collected cannot ethically be disclosed, relayed or released to the public before trial? Really?

This is laughable on so many levels I’m sure I’ll miss a few. (Fellow counsel, feel free to chime in in the comments, as always.)

First, anecdotally, I would share with the reader than in the case of the George Zimmerman trial the entire discovery file, literally thousands of pieces of evidence, was made available to the public throughout the many months preceding the trial proper.  I know, because I accessed that evidence pre-trial, and frequently.

While full disclosure of a discovery file is not, in my experience, the norm, the notion that it is forbidden or unethical to disclose any and all evidence prior to trail is utterly ridiculous.

Does nobody remember the huge volume of evidence–sadly, much of it fabricated–disclosed pre-trial in the aftermath of the self-defense shooting of Mike Brown by then-Officer Darren Wilson?  Does nobody remember the evidence disclosed pre-trial in the death of Eric Garner?

Second, does Mosby propose to deny these officers probable cause hearings on the charges against them, at which she will be compelled to disclose the evidence supporting the charges?

Alternatively, does Mosby propose to conduct these probable cause hearings in secret, closing them to the public?

Third, does Mosby intend to deny discovery to the defendant’s legal counsel?

Alternatively, does Mosby propose to meet her discovery obligations, but require that the defense counsel keep the shared evidence secret from the public?  How is the defense to conduct it’s own investigations of the evidence if it cannot public disclose even that the evidence exists?

Let’s think this through, shall we?  Clearly, the knife taken from Freddie Gray that was the probable cause for his arrest is evidence in this case.  Mosby’s position is that this evidence cannot be released to the public.

Set aside for the moment that it has already been released–under the “Mosby Doctrine of Evidence,” had the existence of the knife not already been made public it would be forbidden to reveal the existence of the knife at any time prior to trial.

What about Mosby’s press conference last Friday, when she recounted the events surrounding Freddie Gray’s death, all of which is evidence?  Under the “Mosby Doctrine of Evidence” she herself acted unethically because she “disclosed, relayed or released [evidence] to the public before trial.”

Does this strike even non-lawyers as even remotely credible? Is there anyone who has not seen evidence in a case released before trial without even a suggestion that doing so is unethical? Is there anyone who could possibly believe it is unethical and prohibited to do so?

It is true that evidence is often withheld from the public during the course of an investigation, because disclosure of that evidence could tip off suspects or taint other sources of evidence.

But that all ends with the bringing of formal charges against the suspects.  That, after all, is the purpose of the investigation–to gather the evidence necessary to justify the criminal charges.  Not the reverse.  Once charges have been brought, the suspects are entitled to due process, and that includes disclosure of the evidence underlying the charges against them.

Surely, an investigation may continue after charges are brought, but the evidence used to bring the charges may not be kept secret.

There’s only one take-home message possible from Mosby’s pronouncement yesterday.

Well, two.

She really knows very little–perhaps nothing–about the practice of criminal law and the Constitutional right to due process.

She’s got nothing substantive with which to support these charges–increasingly appearing to be utterly ridiculous–brought in such a reckless and self-serving manner against these six police officers.

But, hey, Prosecutor Mosby, feel free to disprove either or both of those observations at your convenience.

Sure, I’ll wait.

Here’s a screen cap of Mosby’s statement, in addition to the hyperlink to the original.  Not to suggest that her office would do anything as unethical as deleting it. You know, just for our reader’s convenience.

Mosby statement 5-5-15

There’s plenty more to come, folks, I have no doubt about it.  Keep tuned. 🙂

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