One mistake may have cost Marilyn Mosby a conviction in Freddie Gray case

By Casey Harper, DCNF

A key decision early on in the Freddie Gray case may have cost the prosecution a conviction.

After Gray’s death, Baltimore City State’s Attorney Marilyn Mosby charged the six Baltimore cops involved, but many legal experts criticized her response as hasty. So far, two officers have been acquitted, including the van driver, who many believed was the best shot at getting a guilty verdict. Another officer’s trial was declared a mistrial and will be retried, which means Mosby’s office has four tough cases ahead of it.

Mosby’s office brought charges against all six officers in the case only after conducting its own investigation into the death. Initial reactions in the legal community indicated the charges could be overreaching. Rene Sandler, a Maryland attorney and former prosecutor, told The Daily Caller News Foundation Mosby made a legal mistake that cost her — big time. She says instead of relying on her office’s own investigation, Mosby should have used a grand jury to thoroughly investigate the case.

“I would say her rush to judgment in determining that ‘her’ investigation supported the probable cause necessary to charge these officers rather than fully utilizing the grand jury process likely resulted in the loss of a conviction,” Sandler told TheDCNF. “Mosby has publicly stated that she made her decision to file criminal charges against the officers based on an ‘independent’ investigation done by her office. Had she utilized the grand jury fully to investigate, the grand jury may have declined the indictment rather than to indict after having been presented with a self-serving investigation done by her own office.”

Grand juries have two main functions: an investigatory capacity to gather evidence and find the facts on its own, or to hear evidence from a prosecutor and then decide whether to indict. Sandler says Mosby should have used the grand jury’s investigative powers instead of doing a hurried independent investigation. The grand jury may have turned up new evidence that could have helped the prosecution.

“This prosecutor rushed to judgement, did not utilize the grand jury process, and decided to charge with a speed that is just unheard of in this kind of case,” Sandler told TheDCNF. “Her early on mistakes have come back to haunt her. In this case, a grand jury could have compelled the production of documents and could compel sworn testimony of witnesses. In this particular case, given the intense scrutiny it would have been more prudent for the prosecutor to slow the process down and utilize the full investigative functions of the grand jury.”

David Jaros, associate professor of law at the University of Baltimore, told TheDCNF that while Mosby made some mistakes, he’s not convinced it would have made a difference. He said this case was difficult to win regardless of Mosby’s grand jury strategy.

“I’m not at all persuaded that there was more out there that they could have gotten,” Jaros told TheDCNF, suggesting that a grand jury investigation still may not have found any new evidence. “I don’t know that there’s more evidence out there that could have given them a stronger case. At the end of the day, these cases were just incredibly hard to prove.”

Sandler argues that the quick charges were a mistake.

“Her emotional response opposed to a legal response is absolutely coming back to haunt her,” Sandler told TheDCNF.

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