The Corner

Law Professor: Yes, the Baltimore Cops Were Overcharged, But So Is Everyone Else

It’s sinking in across the political spectrum that prosecutor Marilyn Mosby may have overcharged the six officers implicated in Freddie Gray’s death. Over at The Atlantic, University of Baltimore School of Law associate professor David Jaros acknowledges that politics played a role in the charging decision and that, yes, the officers are likely overcharged. Here’s are the key excerpts from his interview with David Graham:

David Graham: The charges in this cases were met with a lot of surprise—at the charges, at the speed which they they came, at their strength. Did you find it surprising?

David Jaros: I love how surprised people are by the fact that a prosecutor may have overcharged. This is something prosecutors do all the time, as a strategic choice, for various reasons, and it’s ironic that suddenly the [Fraternal Order of Police] is up in arms over this.

They continue:

Graham: How common is it to overcharge?

Jaros: I think that is a relatively common practice. On a lower misdemeanor, they might throw in a charge of felony assault when it’s really a misdemeanor assault, because they know that this going to go through a plea-bargaining process. It’s also true that juries sometimes compromise, so if they’re going to compromise, you stake out a strong position and then you settle for what you thought was appropriate in the first place.

And then, finally, regarding politics:

Graham: What about the political pressures on Mosby in particular?

Jaros: I think there are once again serious reasons to be concerned about the political pressure to come out quickly and charge very serious crimes because there was a very real interest in calming the city. We don’t want those political interests to affect the prosecution of an individual defendant and their constitutional rights and what’s going to happen to them. At the same time, that’s what happens in tons of other cases.

I have two responses to this. First, I agree with Jaros that overcharging is a common practice, and it’s also unfortunately common to see political pressure influence the timing and nature of criminal charges. I disagree with a philosophy of criminal prosecution that views an indictment as essentially the opening round of a plea-bargain negotiation — where a prosecutor threatens to prosecute a defendant for crimes he doesn’t necessarily think he can prove as a means of obtaining quick and easy guilty pleas for those crimes he believes the defendant actually committed. The fear of lengthy prison terms can often coerce pleas even in cases where the defendant has an excellent defense to the principle charge in the case, but the risks are just too great to roll the dice with a jury trial. 

Second, even though overcharging and politically-timed prosecutions are distressingly common, the prosecutor has to be aware that this is not a common case. Multiple acquittals — or even convictions on clearly lesser charges — could throw the city right back into chaos. This gives the prosecution less room to bargain and thus removes one of the primary justifications for overcharging. To achieve the short-term goal of peace and (political) prosperity, the prosecution has unnecessarily risked longer-term violence and disruption.

As Andy McCarthy has noted, the false imprisonment charges are already vigorously contested, and the prosecution is pursuing contradictory charges against other defendants. All of this adds up to trouble — the kind of trouble that Baltimore doesn’t need.

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