Baltimore State's Attorney Marilyn Mosby.

Photographer: BRENDAN SMIALOWSKI/AFP/Getty Images

Freddie Gray, John Hinckley and the Law

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Two prominent legal decisions accidentally converged Wednesday, each likely to be deplored by a different political constituency. Baltimore prosecutors dropped all charges against three police officers who had been accused in the death of Freddie Gray, which will frustrate supporters of the Black Lives Matter movement. And a federal judge is allowing John Hinckley Jr., who tried to kill President Ronald Reagan, to move into his mother’s house in a “convalescent release” -- a decision already criticized by Donald Trump, among others.

The two decisions have something important in common: They both came from conscientious public officials who were following the laws that govern their jobs. You may not like one or both of them. But if you value the ideal of a government of laws, not men, you should accept the decisions as understandable consequences of the law.

Start with the police officers who were charged in the Freddie Gray case. The Baltimore state’s attorney’s office had previously tried to prosecute four officers; one of those prosecutions ended in a hung jury, and the three others led to acquittals by a state trial judge.

Given those outcomes, the prosecutor decided to drop the parallel charges against the three remaining officers.

It’s not that the prosecutor thought the officers weren’t guilty. The principle at play here is that confidence in a defendant’s guilt isn’t enough for prosecutors to bring charges. The prosecutor must also have reasonable confidence that a conviction is possible, according to the American Bar Association’s ethical standards.

After failure to convict the first three cops, there’s no way the Baltimore prosecutor could say credibly that there was sufficient admissible evidence against the next three to support a conviction.

The ethics here make a lot of sense. Bringing a prosecution is one of the most powerful exercises of state authority in the American system. Simply being charged and having to defend against that charge imposes enormous personal and financial costs on defendants. We don’t want prosecutors to be able to bring charges that they know won’t succeed just to send a message to the public or punish defendants whom the prosecutors believe to be guilty.

It follows that you could believe the Baltimore police officers are guilty and still believe that the state’s attorney had an ethical obligation to drop the charges. To accept that view, you have to be able to separate the specifics of the case -- the humans involved -- from the broader legal and ethical principles. That’s what the law is all about.

The Hinckley case is oddly similar. Remember that a federal jury found Hinckley not guilty by reason of insanity after his attempted assassination of Reagan in 1981. That was probably the correct result under federal law as it then existed. The jurors were told that essentially Hinckley should be found not guilty by reason of insanity if he was unable to appreciate the criminality of his conduct or conform his conduct to the requirements of the law.

In the aftermath of public outrage, the federal government and many states changed their insanity tests, reverting to an older standard that asked whether the defendant knew the difference between right and wrong. By that test, Hinckley would probably have been found guilty. But that test didn’t apply to his trial.

Having been found not guilty, Hinckley was nevertheless put in a federal mental institution. U.S. District Judge Paul Friedman had to consider his request for convalescent leave against the backdrop of expert testimony and legal rules that govern the issue. The experts testified unanimously that Hinckley’s depression and psychosis are in remission and have been for some time.

Given this evidence, and the fact that Hinckley was never convicted of a crime, Friedman had little choice but to grant the convalescent release.

The judge barred Hinckley from knowingly traveling to areas where the president or members of Congress live. And it barred him from any contact with the actress Jodie Foster, with whom Hinckley was obsessed at the time of his crime.

Outrage about the decision has more to do with outrage about Hinckley’s initial acquittal than anything else. In that sense, it may be justified. But the judge’s job is to follow the legal rules, regardless of how unpopular the result will be. Hinckley was acquitted by reason of insanity and no longer poses a threat on that basis, so the law says he must be released.

The law isn’t perfect. For human judges and prosecutors to abstract from particular circumstances is an aspiration, not a scientific certainty. But if we believe in the law as a system, we should be prepared to accept its consequences, even when we don’t like them.

  1. A prosecutor “should not institute … criminal charges in the absence of sufficient admissible evidence to support a conviction.”

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Brooke Sample at bsample1@bloomberg.net