Danny Jacobs, The Daily Record Newswire
"Extra-prosecutorial motivations and ambitions." "Like a pinball on a machine far past TILT." Defendants "served up to the masses."
The six Baltimore police officers charged in connection with the death of Freddie Gray have yet to appear in court, but filings by both their lawyers and prosecutors include rhetoric seemingly ripped from the climactic scene of a courtroom drama.
Legal observers say such strongly worded pleadings are not unusual but there is a reason for all of the colorful language and hyperbole.
"Some pleadings are written for judges, some are written for clients and some are written for the public," said Andrew D. Levy, a criminal defense attorney with Brown, Goldstein & Levy LLP in Baltimore. "Both the prosecution and defense are trying this case in the court of public opinion."
"It's all about posturing and positioning," added Richard M. Karceski, a Towson criminal defense attorney.
The jockeying began with the defense lawyers' joint filing May 8 to dismiss the charges, which also sought to remove Baltimore City State's Attorney Marilyn J. Mosby from the case.
"Rarely in the history of any criminal case has a prosecutor so directly maintained so many conflicts of interests," the motion states. "Rarer still are instances where such clear conflicts exists [sic] and a prosecutor steadfastly refuses to recuse him or herself."
Prosecutors fired back Monday, calling the defense motion "premature, frivolous, illogical and absurd" in addition to using the aforementioned pinball analogy.
"Defendants ... [are] willing to say anything regardless of the facts and [are] completely indifferent to who is swept up by their baseless allegations," Chief Deputy State's Attorney Michael Schatzow concluded. "It's time to put a stop to these tactics."
David Gray, a criminal law professor at the University of Maryland Francis King Carey School of Law, compared the filings to a person venting. The difference for prosecutors, however, is that they are limited to doing their talking in court, which might be why Mosby's office reportedly is seeking a gag order in the case.
"They're tired of being pilloried in the press and not having a chance to respond," said Gray, adding he has been impressed by Mosby's public restraint.
What impact the rhetoric will have on the pending criminal proceedings remains to be seen.But it might have the opposite of the intended effect.
"It's hard not to take them less seriously," Gray said of the pleadings.
Added Levy: "Good prose might make a judge sit up and notice. The wrong tone can alienate the judge."
The personal attacks also might affect the ability of lawyers to maintain a professional relationship, according to Jacob S. Frenkel, a former federal prosecutor who now represents criminal defendants.
"At the end of the day, the fiery rhetoric more often makes it difficult for the two sides to interact collegially and constructively and instead operates to harden their positions and fight harder," said Frenkel, of Shulman Rogers Gandal Pordy & Ecker, P.A. in Potomac.
When the back-and-forth ultimately ends might not be up to the lawyers.
"Judges are very good about imposing decorum," Frenkel said. "There could be communication from the bench that it's time to tone down the rhetoric and focus on the issues."
Karceski agreed. Had the case been in federal court, a judge already might have stopped the "shenanigans," he said.
"The merry-go-round should stop," he said. "They should just file what is necessary and appropriate for their clients."
Published: Fri, May 22, 2015
