Defendants in criminal cases have the right to due process. This means prosecutors are supposed to play fairly. They must abide by the rules. The job of a prosecutor is to represent the public. The job is not to obtain a conviction against the defendant at all costs. When prosecutors engage in misconduct, the charges against a defendant may be dismissed.

According to a recent article in the Baltimore Sun, the attorney for Baltimore City Council President Nick Mosby, and State’s Attorney Marilyn Mosby, claim that federal prosecutors committed misconduct in a case against Mr. and Ms. Mosby. They are seeking to suspend a federal criminal investigation involving the couple. The Mosbys’ lawyer, A. Scott Bolden, filed a letter with the US DOJ’s Office of Professional Responsibility regarding two prosecutors: Stephen M. Schenning and Leo J. Wise.

The underlying charges

The investigation involves claims that Ms. Mosby bought two homes in Florida for more than a combined one million dollars. The investigators have subpoenaed records and organizations regarding the purchases including information from churches regarding charitable donations made by Mr. Mosby.

The Baltimore Sun confirmed that there is an ongoing federal grand jury investigation.

Baltimore City Inspector General Isabel Mercedes Cumming has been investigating Ms. Mosby’s “travels and private business at Marilyn Mosby’s request.” The lawyers for Ms. Mosby issued a rebuttal in which they assert that a recent Cumming’s report has numerous “misstatements and inaccuracies.”

The prosecutorial misconduct claim by their lawyer, Mr. Bolden, is another strong response to the federal investigation. Bolden added “that FBI agents tried to serve Nick Mosby the subpoena during a Baltimore City Board of Estimates meeting instead of leaving the investigation out of the ‘scope of the public view.’”

Bolden asserts that both of his clients fight against inequality, racism, and injustice every day. He claims the two prosecutors have “already led them to be tried and convicted in the court of public opinion.”

What is prosecutorial misconduct?

The Legal Information Institute defines prosecutorial misconduct in this way:

When a conviction is obtained by the presentation of testimony known to the prosecuting authorities to have been perjured, due process is violated. The clause “cannot be deemed to be satisfied by mere notice and hearing if a State has contrived a conviction through the pretense of a trial which in truth is but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured. Such a contrivance . . . is as inconsistent with the rudimentary demands of justice as is the obtaining of a like result by intimidation.”

Prosecutorial misconduct includes:

• Violating a defendant’s due process rights
• Acting unethically
• Not recusing themselves when prosecutors have a conflict of interest
• Willingly presenting false evidence
• Failing to disclose exculpatory evidence
• Using discriminatory methods to select jurors
• Improperly using the media
• Many other offenses

Prosecutorial misconduct is a very serious charge, and it can have devastating consequences. According to the California Innocence Project, “In their analysis of the causes of wrongful convictions in cases where the conviction was overturned based on new DNA evidence, researchers found that prosecutorial misconduct was a factor in 36 to 42 percent of the convictions.”

Can you appeal a decision based on prosecutorial misconduct?

Yes, but it can be challenging. If a case is ongoing, your defense lawyer would need to provide enough evidence of willful misconduct which prejudiced a jury in order to trigger a dismissal of charges or a mistrial. It can happen, but it is rare.

At Carey Law Office, our criminal defense lawyer asserts every possible defense on your behalf. When prosecutors are overzealous or fail to protect and honor your due process rights to a fair process and a fair trial, we seek to have your case dismissed due to prosecutorial misconduct. We fight aggressively to ensure the prosecution respects your rights. For help with any type of criminal case, call us at 301-464-2500 or complete our contact form to make an appointment. We maintain offices in Bowie, Crofton, and Owings.