Robert H. Jackson, a former U.S. attorney general and Supreme Court justice, said 75 years ago that "the prosecutor has more control over life, liberty, and reputation than any other person in America." He was right then -- and now.
Given that responsibility, prosecutors must always understand that even the filing of a charge can do serious damage to a person and to those close to him or her. Of course, a prosecutor is obliged to use every legitimate means to bring about a just conviction, and to refrain from using improper methods to produce a wrongful one.
A prosecutor should always adhere to professional standards, and never give the appearance of doing the bidding of a mob as opposed to seeking justice. The outrageous conduct of District Attorney Michael Nifong in the notorious Duke University lacrosse case is a stark example of the tragedy which can be wrought by a prosecutor's violation of that rule.
When Baltimore State's Attorney Marilyn Mosby announced charges against police officers in the death of Freddie Gray, she was impressive and her 22-minute speech well crafted. Unfortunately, she harmed the credibility of the arrests when she chose to say to "the people of Baltimore and demonstrators across the country" that "I heard your calls of, 'No justice, no peace.' "
Her words, echoing the mantra of the Rev. Al Sharpton, served to support those who claim that the demonstrations and looting fueled the arrests of police. That is a very dangerous lesson learned.
The words also give ammunition to those like David Clarke, the black sheriff of Milwaukee County, who claimed that the officers were sacrificial lambs victimized to prevent further riots and looting. In other words, Mosby charged them to calm angry citizens, not to do justice.
Many of us are familiar with the so-called Boston Massacre of March 5, 1770. In many ways, the case has similarities to what happened in Ferguson, Missouri, where a police officer shot and killed a man who had tried to grab his gun. The Justice Department found no evidence to disprove Officer Darren Wilson's contention that he shot Michael Brown because he feared for his safety. Yet activists managed to suffocate the truth under the motto of "Hands up. Don't shoot."
The activists in Boston in 1770 also managed to strangle the truth by embracing the word "massacre," which, like "Hands up. Don't shoot," had no relation to what happened.
The Boston activists were so successful in selling the public their phony wares that no one would defend the British soldiers who were charged in the deaths of several colonists in a colony that was alien to them.
A 34-year-old lawyer named John Adams agreed to represent the mostly young men, saying he felt prosecutions should not be a response to public demonstrations. In his successful defense of those whom the mob had called "murderers," Adams noted in his summation to the jury that the law "is deaf, deaf as an adder to the clamours of the populace."
Mosby and other prosecutors should heed those words. She has gravely wounded the perception of justice by the use of her words. We are left to wonder: If she had found that the evidence did not support charging the officers, how would she have responded to the "call" from the populace?
I'd like to believe that she would have said she heard the voice of the people, but that there was no basis for a charge of murder. We would also like to believe that Mosby would have gone where the evidence took her, without responding to the mob . . . but who will believe that now? The matter now rests with the courts, which we must believe will do justice, free from the passions of the moment and free from the passions of the crowd.
Sol Wachtler is a distinguished professor of Constitutional Law at Touro Law School and former chief judge of New York State.