UPDATED: SEE BELOW
A lawyer for a city police officer who was charged with animal cruelty last summer has filed a motion in court asking a judge to disqualify State's Attorney Marilyn Mosby's office from prosecuting the case, citing her close ties to Attorney Billy Murphy, who is representing another officer in the case and also represents the family of Freddie Gray.
"The newly selected State's Attorney appears to have engaged in a troubling pattern of favoritism and politically-motivated charging decisions," the motion, from attorneys representing retired Baltimore police agent Jeffrey Bolger, reads. "As a result, to avoid the continuing appearance of impropriety in the prosecution of this case, which severely and improperly undermines the public's faith in the criminal justice system and works an injustice upon this defendant, this Court should hold an evidentiary hearing to determine whether the Baltimore City State's Attorney should be disqualified and a new independent prosecutor assigned."
Bolger made headlines last June 14 when he cut the neck of a Shar Pei that had bitten a pregnant woman. The dog, named Nala, had gotten loose in Canton and two officers responded to the call for a dog bite. One officer, Thomas Schmidt, captured the dog with a "dog pole" and a lasso, which kept the dog away from him. The officers called for Animal Control officers to handle the matter, but, according to Bolger's version of events, the police were told that no backup would be forthcoming. The dog struggled in the pole for more than an hour and eventually "appeared lifeless on the ground," according to the court motion. Wanting to make sure it was dead, Bolger then cut the dog's neck. Newspaper reports quoted a witness who said they heard Bolger say "I'm gonna gut that thing." Bolger's lawyers, from Levin and Curlett, deny he said that.
The case became a sensation, the officers' alleged cruelty making news across the country. Both were suspended without pay and both retired shortly thereafter. Bolger had 22 years with the department.
Then-State's Attorney Gregg Bernstein charged both officers with animal cruelty and misconduct in office. Schmidt chose the firm of William "Billy" Murphy to represent him in the criminal case.
That was a prescient choice, according to the court motion.
Both officers moved that their criminal cases be dropped, or at least put before a grand jury. Bolger's lawyers cited a section of the city health code that allows police to kill animals that they believe pose a danger to the public. Bolger also found two expert witnesses, including Dr. David Fowler, the Maryland State Medical Examiner, who pledged to testify that the dog had died before Bolger cut its carotid artery, the court filing says.
Efforts to get the cases dropped were "public, ongoing and, ultimately, for Agent Bolger, unsuccessful throughout the second half of 2014," the new motion says.
But in November, Mosby won the election to succeed Bernstein as State's Attorney. Murphy was a well-known Mosby supporter. Levin and Curlett had thrown in for Bernstein.
"Ms. Mosby was publicly sworn in on January 8, 2015," the motion to disqualify says. "On her first official day as State's Attorney, she dropped the charges against Officer Schmidt."
Bolger's lawyers again asked for supervisory review of their client's case, hoping for the same treatment. They did not get it.
The rest of the motion recounts events surrounding the Freddie Gray case, focusing on Mosby’s decision to quickly charge criminally all six officers involved in Gray's arrest. After the surprise announcement on May 1, the motion says, "speculation began to mount that Ms. Mosby was improperly influenced by at least three things: her relationship with Billy Murphy, the Gray’s family attorney; the public outcry calling for the prosecution of these officers, which included rioting and violent protests; and her husband's political stake in the case."
Calls to Mosby's office and a message left with the prosecutor were not immediately returned. A call to Schmidt's lawyer, Mary Koch of Murphy, Falcone and Murphy, was also not immediately returned. Steven Levin, one of Bolger's lawyers, said he has no comment beyond the motion.
"Other questions still persist," the motion says. "Did Mosby have such a keen interest in the death of a stray and vicious dog that she unilaterally made it a priority to evaluate the comparative merits of the case against the two charged police officers and decide to dismiss just one of them on her very first day in office?"
Given that the lawyers assigned to the cases had not previously lobbied for their cases' dismissal, the motion asks, when "Mosby was elected, did those assigned attorneys have a change of heart and make it their priority to lobby the newly elected State's Attorney on her first day in office so Officer Schmidt's case could be immediately terminated? Neither of these questions is likely to be answered in the affirmative. The public could easily conclude that the dismissal of the case against Officer Schmidt, and whose hands two experts will testify the dog likely died while being strangulated on the dog pole, was a small favor for a political mentor."
UPDATE May 12:
Koch called back today to say that she was on vacation last week and only got our message today. She says Levin should know better than to claim her client’s case was dismissed as a favor to Billy Murphy.
“Schmidt’s case was reviewed under Bernstein,” she says. “We heard it was going to be dismissed weeks before.” The event happened to fall on the day Mosby took office because of a quirk of court scheduling, she says—before Mosby even had the legal authority to do anything. And Levin “should have known. I’m pretty sure he would have gotten the info from the prosecutor.”
The allegation that Murphy’s support of Mosby influenced this decision “is not fair to us,” Koch says. “It maligns our firm.”