Continuing to Prosecute Hopeless Cases is Unethical, As Nifong - The Prosecutor in the Duke Lacrosse Rapes Cases - Learned

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-- Two more Baltimore prosecutors - Chief Deputy State's Attorney Michael Schatzow and Deputy State's Attorney Janice Bledsoe - are now facing formal legal complaints seeking their disbarment, along with their boss, Baltimore State's Attorney Marilyn Mosby, over their handling of criminal complaints being prosecuted against police officers for the death of Freddie Gray.The new complaints charge that prosecutors deliberately violated the constitutional rights of the police officers by refusing to turn over exculpatory evidence, a violation of RPC 3.8(d) of the Maryland Lawyer's Rules of Professional Conduct [RPC] for attorneys, as well as of the U.S. Constitution. This charge is based upon findings of the "Brady violation" by trial Judge Barry Williams.All three prosecutors have also been charged with violating RPC 3.8(a) which requires that a prosecutor refrain from prosecuting - or of continuing the prosecution of - criminal charges unless supported by probable cause, and national standards which establish that a prosecution should proceed only if there is sufficient admissible evidence to support a conviction.The new complaints rely heavily upon the lengthy decisions by Judge Williams refusing to find that any of the charges against three of the police officers had any basis in law, or in the evidence presented.They could not have reasonably believed that the charges were supported by probable cause, and would support a criminal conviction, at the time they were issued, much less after the Judge repeatedly ruled that there was literally "no evidence" to support vital elements of the charges, the complaints state.They also note that, in bringing the most recent prosecution against Lt. Brian Rice, all three prosecutors knew that the judge had already ruled that their legal theories of criminal liability were wrong.More specifically, he had ruled that mere failure to follow a regulation, to seat belt Gray before transporting him, or failing to immediately heed his requests, did not by itself constitute a crime.The two new disbarment complaints, as well as the earlier one now pending against Mosby, were filed by public interest law professor John Banzhaf. Under the rules governing the Attorney Grievance Commission of Maryland, it must open a file and investigate "every complaint that is not facially frivolous or unfounded."Ordinarily, the investigation must be completed within 90 days of when it was filed.These charges are very similar to the ones brought against former Durham County, NC, district attorney Mike Nifong for his role in the infamous Duke lacrosse rape cases.There, like here, a prosecutor both brought and continued criminal charges even after it became clearer and clearer than there was insufficient evidence to support any convictions. There, like here, there were also other ethical violations, including withholding evidence.In the Nifong situation, the North Carolina State Bar Disciplinary Committee unanimously voted to disbar him, says Banzhaf, effectively bringing an end to his unfounded prosecutions.Banzhaf played a role in bringing down Nifong. Banzhaf's bar complaint filed against then-Congressman Barney Frank helped lead to his censure by the House; his similar complaint against then-Congresswoman Geraldine Ferraro helped to discredit her in the 1984 presidential election; and a law suit he orchestrated forced former vice president Spiro T. Agnew to return the money he had taken in bribes.The new complaints recognize that both Schatzow and Bledsoe worked under Mosby, but notes that Mosby's involvement in these ethical violations cannot and does not excuse their own conduct since each and every attorney is bound by the same rules of conduct.The arguments that "I was just doing my job," or that "I was just following orders," didn't work at Nuremberg, and they provide no defense in a disbarment proceeding, argued Banzhaf.Each attorney who participates has an independent legal obligation to follow the RPC and other national standards to insure that wrongful unwarranted prosecutions do not continue, especially once they cannot reasonably believe they can prove all elements of the charged crime beyond a reasonable doubt.The complaints continue: "Here Respondent was not a mere functionary, so far down the chain of command, and so far removed from important decision-making responsibility, that Respondent even arguably had no choice but to follow orders from superiors - even it this might somehow constitute an excuse or justification (which it clearly does not). On the contrary, as a very high ranking official, and as one of the two prosecutors primarily responsible for presenting these several cases in court, Respondent has not only the ethical duty, but also the power, to object and at the very least refuse to participate."Should the prosecutors decide to bring the remaining officers to trial, they will simply continue committing professional suicide - as Nifong did. He was disbarred and forced into bankruptcy,not for bringing the rape cases, but for continuing to prosecute them.Mosby can decline to continue the prosecutions, claiming that she did what no prosecutor had done before. She can claim that merely bringing the charges achieved some measure of the "justice" she promised the angry crowd.She can also claim that her prosecutions were victorious because they resulted in changes in police procedures, triggered a formal Justice Department investigation, and helped to expose what she and her supporters saw as major problems with the Baltimore Police Department.But none of this - or even hoping to sooth an angry crowd and avoid more rioting - can justify bringing and continuing to prosecute criminal charges which cannot be proven beyond a reasonable doubt in court, argues Banzhaf. Mosby, like Nifong, is a runaway prosecutor; "Nifong in a dress," he calls her. jbanzhaf@law.gwu.edu @profbanzhaf