THE BLOG
07/31/2015 04:26 pm ET Updated Jul 31, 2016

Freddie Gray's Former Lawyer Shouldn't Prosecute the Officers in His Case

Earlier today, it was reported that Jan Bledsoe, one of the deputy state's attorneys prosecuting the officers in the Freddie Gray case, represented Gray in a 2012 drug case. This fact has apparently led the officers' attorneys to argue not only that Bledsoe should recuse herself from the case, but that the entire office should do likewise. Is there any merit to this argument?

In my opinion: as to Bledsoe, yes; as to the office as a whole, no.

To be clear, none of the information released so far appears to rise to the level that would actually require recusal under the criminal procedure laws or the rules of ethics. But in any situation in which a government official's prior relationship with someone could potentially create a conflict of interest, the perception of a conflict can be just as important as an actual conflict. This is especially true in a high-profile case, with observers on both sides having strong feelings and a heightened sensitivity to any potential flaws in the process. And based on preliminary information, this appears to be the rare case in which both sides could plausibly argue that Bledsoe's experience with Gray makes her a bad fit for this case.

The officers will argue that Bledsoe's prior relationship with Gray will impair her ability to maintain the objectivity and impartiality required of a prosecutor. Unlike defense attorneys and other private lawyers, whose roles are almost entirely limited to representing their own clients zealously, a prosecutor plays a dual role. She has to advance the interests of her "client" (the state), while at the same time treating the defendant fairly and seeking a just outcome. The officers could legitimately argue that if Bledsoe and Gray had the type of personal bond that often forms between lawyer and client, she'll find it difficult to perform that second part of her task.

On the other hand, there are indications that, far from forming a meaningful bond, Bledsoe and Gray publicly and visibly clashed while she represented him. Reportedly, Bledsoe strongly encouraged Gray to accept a plea bargain to save himself from a possible decades-long sentence, but Gray wanted to go to trial and may have had a viable defense. Gray ultimately accepted the deal, but only after a videotaped in-court proceeding in which he specifically expressed his frustration with Bledsoe. Those pushing for a vigorous prosecution might suspect that, if Gray was a "problem client" for Bledsoe, she may be less enthusiastic than others in prosecuting those allegedly responsible for his death.

(I should note that I strongly disagree with those who, based on the information available so far, are critical of Bledsoe for encouraging Gray to take the deal. One of a defense attorney's most critical responsibilities is to advise a client regarding the sentence he might face after a trial, and to give dispassionate recommendations regarding any resolution offered by the prosecutor. It's a controversial part of our system, particularly when clients who claim to be innocent have to consider taking a plea to avoid potentially devastating consequences. Defense lawyers have to work within a system that creates huge incentives for plea deals, and it's malpractice not to advise a client regarding his options--as long as the lawyer makes it clear that the client will get a zealous defense if he rejects the offer and goes to trial.)

With both sides potentially being in position to make an issue out of the prior representation, the logical solution is for Bledsoe to recuse herself. It's just not worth it for her to stay on, and it's not necessary. In some small towns and rural communities, the legal revolving door is a fact of life; the same lawyer might prosecute a defendant in one case, defend him in the next one, and preside over his case as a judge in a third, and we have to rely on the lawyer's ethics and professionalism to ensure that each task is performed optimally.

In a city like Baltimore, however, it's not necessary to keep Bledsoe on the team. She should recuse herself and let someone else take her place--not because there's any reason to believe she can't perform her job properly, but because it's pointless to plant the seeds of future complaints and conspiracy theories when there are plenty of other lawyers available to step in.

That said, there doesn't appear to be any merit whatsoever to the suggestion that the office as a whole should recuse itself. Even where genuine conflicts exist, if they're "personal" conflicts the law generally doesn't extend them to a lawyer's colleagues; it's generally sufficient for the conflicted lawyer to screen herself off from the case. And the public perception concerns that counsel Bledsoe's personal recusal don't apply to the office as a whole. Even those who suspect Bledsoe herself might lean one way or the other based on her prior relationship with Gray would be hard pressed to argue that other prosecutors in the office would be similarly affected. Taking Bledsoe off the case but leaving her colleagues on it would seem to be the right move.