Hon. Michel Pierson
Chief Administrative Judge
Circuit Court for Baltimore City
100 N. Calvert Street
Baltimore, Maryland 21202

Judge Pierson:

The complaint related to this correspondence is focused on a particular “species of fraud” perpetrated upon the court, in an effort by the State’s Attorney for Baltimore City, Marilyn Mosby, to prevent the judicial process from functioning “in its usual manner” and that involved perjury or a nondisclosure so fundamental that it undermined the workings of the adversary process itself. Importantly, this complaint is about far more than an injury to a single defendant. It is about a wrong against the institutions set up to protect and safeguard the public, institutions in which fraud cannot complacently be tolerated consistently with the good order of society.

The grand jury has the power to conduct an independent investigation in order to determine whether it has been the victim of fraud and that is the relief that is sought in this complaint. As the Supreme Court commanded in Hazel v. Atlas, “the public welfare demands that the agencies of public justice be not so impotent that they must always be mute and helpless victims of deception and fraud.” The assessment of this complaint should include the conduct addressed in this motion that is focused on governmental actors, who are required to operate under a higher standard of care in light of the power they hold in our society. When they fail to do so, it puts everyone at risk. Here, the Baltimore City State’s Attorney abandoned this fundamental objective, and any legitimate effort to seek fair justice. Instead, they went “all in” to win at any cost. The fraud upon the Court therefore threatens not only the judicial process but also all citizens who are exposed to being charged criminally by the Baltimore City State’s Attorney.

Additionally, the Court is perceived to be a victim of the conduct detailed herein, as it has neither had the chance to fully assess the trust it naturally placed in the State’s Attorney, as an officer of the court nor the ability to do so in the context of that which has been discovered about her actions. The circumstances presented herein alleges fraud upon the court, in the pervasive and egregious corruption at the core of the underlying claim, the repeated suppression of key facts by those officers of the court, which also cannot be tolerated. Each of these examples has been laminated into an egregious fraud that goes well beyond what is required for this Court to exercise its inherent powers, so as to effectuate justice and preserve the public’s confidence in our judicial system. The conduct of the State’s Attorney for Baltimore City constitutes a fraud which defiles the court and was perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication.

The fraud worked upon this Court in this matter was comprised of numerous acts of misconduct. Although recklessness is all that need be shown to establish a fraud on the Court under the controlling authorities, the vast majority of the conduct here was clear, intentional, and willful. Together, the acts amounted to a pervasive fraud driven by the goal of prevailing at whatever the cost. The following selected examples discuss only some of the more egregious acts of fraud.

On May 1, 2015, the Baltimore City State's Attorney announced that her office had filed charges against six police officers after the medical examiner’s report ruled an arrestee in the custody of those police officers was the victim of a homicide. These charges included second-degree depraved heart murder, manslaughter, second-degree assault, vehicular manslaughter, and misconduct in office. This announcement and related statements from the steps of Baltimore’s War Memorial Building were unethical, and indeed, constituted a professional ethics breach. The State’s Attorney said she told Freddie Gray’s family that “no one is above the law and I would pursue justice upon their behalf.” This is willfully and wantonly unethical because the State’s Attorney knows her client isn’t the family. Her client is the state. If the evidence appears too weak to get a conviction based on any new revelations, her duty to her client, which only requires justice, not justice for any party, would be to seek justice on behalf of the State of Maryland. Telling the family that she is working “on their behalf” is either a lie, or, if true, unethical. The State’s Attorney is not their lawyer or the victim’s lawyer. She continued that, “I heard your call for ‘no justice, no peace. Your peace is sincerely needed as I work to deliver justice on behalf of this young man.” Again she asserted that she would seek justice “on behalf of” Freddie Gray’s family. Moreover, she stated, “I heard your call for ‘no justice, no peace.” This disgraceful admission demonstrates that the indictment is in response to mob violence and threats of continued civil disobedience. In doing so, she has undermined the rule of law. Prosecutors must not “hear” demands that a citizen be prosecuted, or not prosecuted. They are ethically obligated to do what the evidence dictates. The tone of her statement violates Maryland Rule of Professional Conduct Rule 3.8, Special Responsibilities of a Prosecutor, as follows:

(e) except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent an employee or other person under the control of the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.

Though the Maryland penal code section on second degree murder doesn’t use the poetic-sounding term depraved heart murder, it nevertheless has a long history. In a 1981 case in the Court of Special Appeals, DeBettencourt v. State, Judge J. Moylan wrote, “In homicide law, this classic form of malice is referred to as express malice. In its vaster experience with infinite nuances, however, the law of homicide has recognized variant forms of malice. It refers to these as the various types of “implied malice” (more sophisticated modern analysis recognizes them as forms of “equivalent malice”). One of these variant forms of malice, the analogue of the hour, is that of “the depraved heart.” It is the form that establishes that the willful doing of a dangerous and reckless act with wanton indifference to the consequences and perils involved, is just as blameworthy, and just as worthy of punishment, when the harmful result ensues, as is the express intent to kill itself. This highly blameworthy state of mind is not one of mere negligence (even enough to serve as the predicate for civil tort liability). It is not merely one even of gross criminal negligence (even enough to serve as the predicate for guilt of manslaughter). It involves rather the deliberate perpetration of a knowingly dangerous act with reckless and wanton unconcern and indifference as to whether anyone is harmed or not. The common law treats such a state of mind as just as blameworthy, just as anti-social and, therefore, just as truly murderous as the specific intents to kill and to harm.”

The charge of second degree depraved heart murder means that the prosecution thought that Officer Cesar Goodson displayed “wanton indifference” to Freddie Gray’s life, and did not care whether or not the way he was being treated would result in his death. It is a heavier charge than negligent or involuntary manslaughter, as depraved heart murder suggests that the perpetrator knew the act in question was dangerous and didn’t care.

As the Maryland Court of Special Appeals noted in 1991, the malice involved in that charge can be either an act of malice, using the example of driving a car into a crowd, not specifically intending to kill a particular person but with complete disregard for the fact that it was likely a death would result or of omission, not doing something, such that you knew that failure to do so would likely kill someone. The Court noted that those cases are often traced back to a British prosecution in 1857, in which Lord Campbell stated that “it has never been doubted that if death is the directed consequence of the malicious omission of the performance of a duty, as of a mother to nourish her infant child, this is a case of murder. If the omission was not malicious and arose from negligence only, it is a case of manslaughter.” British case law is the source of much of America’s common law. With the acquittal of officer Goodson, the State’s Attorney’s overreaching charge proved fatal to her case, as Judge Barry Williams ruled that the State failed to prove it. This complaint alleges that the prosecution of this charge was motivated by the State’s Attorney’s desire to seek justice on behalf of the family of Freddie Gray, a complete failure to observe ethics requirements and to stop the civil disobedience that was being demonstrated that was characterized by rioting, just to sensationalize the event. As this serves no purpose in the pursuit for justice consistent with the duties of her office, this charge has to be viewed as malicious prosecution of Officer Cesar Goodson. The statements about representing the family and about nobody being above the law suggested that the officers were in fact guilty of the crimes they were charged with and most certainly caused the public condemnation of the accused.

The lead Baltimore police detective in the investigation said she reluctantly read to grand jurors a summary of evidence provided by prosecutors that she believed was misleading. This is a clear demonstration of witness tampering and is perjury also. By her own admission the testimony was not that of Detective Dawnyell Taylor but of the State’s Attorney. Hours later, the grand jurors issued criminal indictments against six police officers in the arrest and death of Gray. Detective Taylor said in a daily log of case notes on the investigation that a prosecutor handed her a four-page, typed narrative at the courthouse just before she appeared before the grand jury. "As I read over the narrative it had several things that I found to be inconsistent with our investigation," Detective Taylor wrote, adding: "I thought the statements in the narrative were misquoted." But, she wrote, she was "conflicted" about challenging the state's attorney on the narrative in the courtroom. "With great conflict I was sworn in and read the narrative provided," she said in her notes. Detective Taylor testified in the Goodson trial that she turned her notes over to defense lawyers, who objected that prosecutors didn't provide them first. Prosecutors said in court that they didn't have the notes. Taylor later testified that she offered to provide her notes but that prosecutors didn't want them. Judge Barry Williams faulted prosecutors for not obtaining the notes and turning them over, as required under discovery. This is yet another violation of not only ethics rules but also rules governing professional conduct and the Rules of Procedures for the Courts.

So far, Officer Goodson and Officer Edward Nero have been acquitted after bench trials, while jurors deadlocked on charges against Officer William Porter. In a rebuke of the state's case, Judge Williams said that prosecutors were asking him to make assumptions and lacked evidence for their conclusions. For the reasons contained in this complaint, and due in no small part to the public’s need to ensure that they can trust their representative form of government, a grand jury investigation should be commenced to assess the actions of the State’s Attorney’s Office and ascertain the manner in which the case should move forward if the allegations are found to have merit. The people have no confidence that the State’s Attorney will have herself investigated, as her office has the discretion over what cases are to be presented.

Thank you,
Brian Vaeth