BALTIMORE — State’s Attorney Marilyn Mosby says her office won’t be distracted by the federal charges against her, but several of Baltimore’s experienced defense attorneys say they expect the implications will trickle down to line prosecutors they interact with every day and offer opportunities to imply doubt about the office’s credibility.
Some of those familiar with the city’s criminal justice system also say her indictment could strain law enforcement relationships — importantly, collaboration between the city prosecutor’s office and the U.S. attorney’s office — critical to curtailing a staggering rate of violent crime in Baltimore.
In most cases, the implications remain to be determined as the case against Mosby plays out and while jury trials are on hold because of the coronavirus pandemic. Battered by the rigors of a tough job, might Mosby’s prosecutors look for work elsewhere in light of the new complication of their boss’s future up in the air? How will Baltimore juries, often skeptical regarding the state’s cases, view charges brought by Mosby’s office?
More than two weeks have passed since a grand jury handed up the indictment against Mosby. The U.S. attorney’s office alleges she committed perjury and made false statements on loan applications to buy properties in Florida. She calls the charges “false allegations.” Baltimoreans are divided on their merits, but the charges are expected to factor into this year’s race for state’s attorney.
How they impact her office’s work is another question, although experts interviewed by The Baltimore Sun expect Mosby’s case to affect her office’s work to some degree.
Defense attorney Warren Brown can foresee a scenario where he or other veteran litigators, seeking every advantage in court, bring up Mosby’s indictment when facing prosecutors from her office in a city courtroom. It would be most relevant, he said, in a case in which his client was charged with fraud or lying on paperwork. He may try to tie it to other types of cases, too, Brown said.
“It would be something along the lines of, ‘You’re going to present this evidence against my client? Really? This state’s attorney?’” said Brown, who contributed to Mosby’s campaign. “There might be an objection or whatever, but it’s the elephant in the room.”
Mosby said in a statement to The Sun that she has made clear to her office that “the important work of ensuring one standard of justice — regardless of race, gender, ZIP code or occupation — must and will continue.” She also pointed out that her office functioned throughout the past year as federal prosecutors conducted their probe of her finances.
She lauded her prosecutors, saying “they have never wavered in their commitment to this city, we will not be distracted” and will remain focused on “making Baltimore a safer community.” She declined to be interviewed.
David Jaros, faculty director of the Center for Criminal Justice Reform at University of Baltimore School of Law, said it’s unclear how her indictment will affect the relationship between Mosby’s office and that of U.S. Attorney Erek Barron.
City and federal prosecutors collaborate on several fronts, sometimes communicating daily, according to Mosby’s office. They work together on drug cases, major investigations and broader crime reduction initiatives. Two of Mosby’s assistant state’s attorneys are cross-designated as special U.S. attorneys, meaning they can try cases in federal court.
“There’s no reason why an investigation into a violent crime or into drug or gun sales by line attorneys needs to involve Marilyn Mosby or the attorneys who are currently prosecuting her, so it’s not as if suddenly there is a massive wall between these two institutions,” Jaros said.
“At the same time, we don’t want to be dismissive of the fact that this is a relationship that’s complex and that leadership starts at the top and that it would be surprising if this didn’t poison the well a little bit.”
In her statement, Mosby said the two offices have a “deep and long-standing relationship that has not been and will not be disrupted by the false allegations pending against me.” She, her attorney and her supporters continue to attack federal prosecutors’ decision to investigate and charge her, particularly as she seeks reelection.
The week after the indictment, Barron described on WBAL-AM “challenges” in the relationship between their offices.
In a later statement to The Sun, Barron said both offices are “staffed by public servants who are committed to seeking justice and keeping our communities safe. As we always have, we will continue to work together to accomplish those goals.”
Jaros and Gregg Bernstein, Mosby’s predecessor, expressed concerns that the indictment could indeed serve as a distraction during a difficult time for Baltimore.
The city recorded 36 homicides over the first month of 2022, the most in a January since 1973, when there were 35 people killed and the city had many more residents. Nonfatal shootings are up compared with the same time in 2021. During each of the past seven years, at least 300 people have been killed in Baltimore.
Both offices prosecute violence in Baltimore, and can collaborate to make cases stronger. For instance, when it may be difficult to win a murder or attempted murder conviction in state court, a shooting may be evidence of organized crime. That means it could become part of a federal conspiracy case against a criminal organization, and cases pursued by the U.S. attorney’s office bring the resources of the federal government to investigation, trial and sentencing.
In 1979, the last time Baltimore’s elected prosecutor was indicted, also in federal court, the U.S. attorney’s office wasn’t as involved in prosecuting violent street crime, according to Kurt Schmoke, a former mayor and state’s attorney who is now president of the University of Baltimore.
Schmoke’s predecessor as state’s attorney, William Swisher, was indicted on a range of political corruption charges. Federal prosecutors brought some of the assistant state’s attorneys who worked for Swisher before the grand jury for questioning.
Prosecution of crime in Baltimore, however, didn’t grind to a halt following Swisher’s indictment, said Schmoke, who was a relatively new assistant U.S. attorney at the time. Nor does he think it will now.
“If she has strong and experienced deputies, they should be able to continue to collaborate with the U.S. attorney’s office without any serious problems. If the people are not experienced, they could run into some problems,” said Schmoke, who contributed to Mosby’s campaign for reelection.
Swisher was acquitted, but lost the 1982 Democratic primary to Schmoke.
Mosby’s office, like others around the country, has struggled with attrition accelerated by the effects of the pandemic. Two assistant state’s attorneys have resigned in the past two weeks. As the number of prosecutors drops, the caseload mounts for those who remain, and less experienced attorneys take on more complicated cases.
Following a series of staff departures, Mosby in December adjusted leadership positions in her office. Leaders of divisions, such as those handling homicides, juvenile crime or post-conviction matters like probation and sentence modification, report to the chief deputy state’s attorney, according to an organizational chart.
Bernstein said he delegated many responsibilities to deputy state’s attorneys, who in turn delegate down the chain of command.
“The state’s attorney has the power and the ability to delegate as much as he or she wants to delegate to the functioning of the office. There are very few things that actually require the signature of the state’s attorney,” Bernstein said. He contributed to the campaign of Ivan Bates, one of two defense attorneys challenging Mosby for the Democratic nomination.
Attorney A. Dwight Pettit expects that concern over the outcome of Mosby’s case, on top of uncertainty about the result of the June 28 primary, may harm morale in her office. Pettit and defense attorney Natalie Finegar said the last thing the staff needs is a distraction like the indictment.
Finegar also questions the experience level of new prosecutors in the office, who she says “don’t know how to do basics in trial.” While that might sound like a plus for people she defends, “it can actually be to the detriment of my client because it can lead to mistrials,” Finegar said. “It can lead to long, protracted arguments over simple legal issues that you could resolve with a seasoned state’s attorney. Sometimes, you end up going to trial when you shouldn’t.”
Finegar and Pettit were among a handful of attorneys interviewed who said the charges against Mosby impact the office’s credibility.
“Decisions about what to prosecute and who to prosecute could all be called into question in the backdrop of her own allegations and defenses,” said Finegar, who made donations to the campaigns of Bates and Roya Hanna, a defense attorney and former city prosecutor who’s also running for state’s attorney.
Brown said the biggest potential impact remains to be seen, as jury trials in Maryland are suspended until at least March 6 because of COVID-19. Brown will watch to see how juries in Baltimore perceive charges brought by Mosby’s office against defendants.
He said he thinks “some of the negative aura around her” will surround her assistants in the courtrooms as they seek credibility with jurors. “The state is trying to sell a conviction to the jury, they’re trying to sell their position to the jury. If a salesperson is viewed with some askance, then they’re not going to be able to sell the message.”
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(Baltimore Sun librarian Paul McCardell contributed to this report.)
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