credit: nypost.com

credit: nypost.com

The first two articles in this series are:

The Freddie Gray Case: Initial Impressions 

The Freddie Gray Case, Update 2 

A question of some significance: If Freddie Gray were white, would any of this be happening? I’d like to think that in 2016, justice is truly blind and that the citizens of Baltimore—and the outside agitators drawn like vultures to roadkill—would be as determined to find social justice for a white man who died in police custody, but I can’t. And why not? Because social justice ”activists,” including the President of the United State and the federal Department of Justice, are concerned not with the rule of law and equal justice for all, but with social justice, which plays favorites and denies due process and the protections of the Bill of Rights to those not so favored, to appease the mob inflamed by the social justice rhetoric they so blithely and irresponsibly spread.

In this update, I intend to focus not specifically on the laws involved—that’s for later—but on informing you, gentle readers, of what we should be seeing if proper police and prosecutorial procedure were being followed. That, in much of this situation, such procedures are not being followed, is why my “cop sense” is tingling, just as it did in the Erik Scott, Jose Guerena and George Zimmerman cases. You’ll recall, I’m sure, that my cop sense was vindicated in those cases, and I suspect it will be here.

credit: thefabempire.com

credit: thefabempire.com

SPEEDING:

The first factor that alarmed me in this case was the extraordinary speed with which Ms. Mosby filed charges. In a complex case like this, it is simply impossible to complete a competent investigation in a week, and it now seems that the Baltimore PD was shocked that Mosby filed charges based only on their preliminary report. It would be impossible, in such a short span of time, to identify and interview every possible witness, and to conduct the re-interviews an initial round of interviews always requires, and this is only one facet of any competent investigation.

It is highly likely the officers lawyered up—under these circumstances, I surely would have—and a lack of officer statements—or very brief and carefully lawyered statements–would require even more time and care to build a case. There is no possible way to complete the science involved in that time, and as the prosecutor will learn to her woe, the science that will eventually be done will likely not support her charges. No rational prosecutor files charges until they are certain they can prove each and every charge beyond a reasonable doubt. Being unable to know exactly what the officers will have to say, and what evidence might exist to support their statements, should keep any sane prosecutor from hastily filing charges.

Former federal prosecutor Andy McCarthy notes: 

It appears that Ms. Mosby filed charges as soon as the medical examiner (ME) determined that Mr. Gray’s death was a homicide. But as I explained in connection with the death of Eric Garner after an altercation with police on Staten Island, an ME’s conclusion that homicide occurred is not a judgment that murder or even some lesser form of culpable killing occurred. It simply means death was caused by some course of conduct – conduct that could, in theory, be innocent. A competent prosecutor knows it is a long way from the ME’s pronouncement of homicide to a compelling case that murder has been committed.

Yet, Business Insider’s Peter Jacobs reports that the Baltimore Police Department was stunned by Ms. Mosby’s sudden announcement of charges on Friday. The BPD was still in what it considered the early stages of its investigation. Cops were working off a checklist of 145 investigative tasks to complete, and had plans to work through the weekend amassing additional reports for the prosecutor. Ms. Mosby forged ahead without any of this information.

A competent prosecutor does not charge first and investigate later. That inevitably leads to gaps in the proof. Worse, it leads to inconsistencies in the charges filed. Those are a defense lawyer’s dream.

That all of this was done so quickly is the clearest possible indicator that the charges are politically motivated and were filed with political goals, rather than the administration of justice, in mind.

REASON TO BELIEVE:

It’s entirely reasonable to believe, considering the nature of politics in Baltimore, the charges are political. Baltimore has been democrat-controlled for essentially a half century. Maryland does have a Republican Governor, but he’s been in office only about four months. The policies, culture and thinking of the political class are entirely progressive and focused on racial politics and social justice outcomes.

Considering the statements of prosecutor Marilyn Mosby in announcing charges, there is even more reason to believe her goal is social justice rather than actual justice. Considering the bizarre and faulty nature of the charges and the almost complete lack of support for them, there is much about which to be concerned. Andy McCarthy shares my concerns (I didn’t find his article until I’d finished this one):

Procedures vary from jurisdiction to jurisdiction, but ordinarily when a person is arrested on something other than a grand jury indictment, the charges are accompanied by a narrative statement from an investigating police officer, usually under oath, explaining the probable cause for the offenses alleged. In the case of the six officers charged in Mr. Gray’s death, however, there was no such document made publicly available.

There was no probable cause statement because the police were nowhere near having developed PC for any particular charge. None of them, under oath, could have done as Mosby would have demanded without committing perjury.

It must be understood that probable cause for arrest, and the ability to prove a charge in court beyond a reasonable doubt are two very different standards of proof, the latter being a much higher burden to overcome. For that reason, a great many appropriate and fully legal arrests are never prosecuted. This does not reflect poorly on the police, but is a reflection on the realities of the Constitution and the criminal justice system, where defendants are innocent until proved guilty, some laws are vague, some witnesses aren’t likeable or believable, and a variety of other factors make prosecutions difficult.

There are a number of obvious warning signs of a political prosecution, and virtually all are present in this case:

(1) A politically/racially charged political atmosphere. This is particularly obvious when the public officials responsible for the actual administration of justice are speaking the rhetoric of social justice.

 (A) Charges provide political cover for politicians, including prosecutors.

(2) A blurring of the line between the rule of law—actual justice—and social justice: politics, policy and the redistribution of wealth.

(3) Charge stacking: filing every charge in the book to give the appearance that the defendants are obvious criminals (politics), and to increase the possibility that at least one of the charges will stick (desperation).

(4) Vague or contradictory charges: this too is a common feature of charge stacking, and leads prosecutors to appear incoherent and confused in front of juries. It is also obvious when the prosecution does not file, under oath, a probable cause statement in support of the charges.

(5) Distraction: vilification of the police as a whole rather than focus on the specific, provable facts of the alleged crimes. In this case, distraction is also important because the prosecution apparently cannot point to specific, provable acts by the officers charged that fulfill the elements of the offenses.

(6) Charges filed for mere proximity or failure to act perfectly in every circumstance. Criminal charges require affirmative acts: the defendant must have actually done something that specifically violated the statutes charged. Merely being in some peripheral way involved with the case is not sufficient.

THE STOP, THE KNIFE AND THE ARREST:

Prosecutor Mosby dramatically announced that the charge on which Gray was arrested was faulty because the knife was not illegal under Maryland law, therefore, the arrest was false and everything the officers did thereafter was illegal. Mosby’s clear implication was that the officers acted maliciously, with foreknowledge, and committed murder. Any competent prosecutor should know better, but Mosby is young and inexperienced, and examining the situation through a racial lens.

freddie_gray_complaint-600

In order to make a valid arrest, a police officer must adhere to the standard of a “reasonable police officer.” Would a reasonable police officer, in similar circumstances, believe that a specific law had been broken and that a specific person broke it? If so, the arrest is lawful. As I’ve previously mentioned, there are many reasons thereafter that a prosecutor may choose not to pursue a prosecution, but that does not in any way invalidate the original arrest.

Even if an officer, acting in good faith, made a mistake about the law—which happens all the time–that does not make the arrest illegal, but would merely be cause for a prosecutor to drop the case. In addition, it does not automatically set up a civil suit and a multi-million dollar payout. If procedural errors made in good faith allowed that, no municipality could afford a police force. The same is true if there is evidence—and this is thankfully, rare—that an officer maliciously and knowingly made a false arrest to harass or punish someone. The case would simply not be prosecuted, and the defendant might have a stronger case for a civil complaint.

Claiming, as Mosby has, that the officers are somehow acting maliciously and therefore fulfilling the elements of the murder statutes is a gross misstatement of reality. Not only will it not hold up as a matter of law, it is fundamentally deceptive and raises false and unsustainable hopes in those demanding a specific social justice outcome. Imagine the riots when Mosby fails in large part or entirely. At worst, a competent prosecutor would simply dismiss the charge against the defendant–Gray–which is, of course, moot in this case.

What is most interesting is that Mosby’s assertion that the knife was not illegal is almost certainly false. Mosby’s assertion hangs on Maryland state law, but the arrest was based on a Baltimore ordinance—59-22—which states:

59-22. Switch-blade knives.

(a) Possession or sale, etc., prohibited. It shall be unlawful for any person to sell, carry, or possess any knife with an automatic spring or other device for opening and/or closing the blade, commonly known as a switch-blade knife.

(b) Penalties. Any person violating the provisions of this section, shall, upon conviction thereof, be fined not more than $500 or be imprisoned for not more than 1 year, or both, in the discretion of the court.

Notice the language of the ordinance. Not only is a commonly understood switchblade illegal, any knife with an “automatic spring or other device for opening and/or closing the blade” is also illegal. There is, to my knowledge, no state preemption law—if so, I’ve been unable to find it—that would override this local ordinance.

As this is published, the specific make and model of the knife is not public knowledge, but the original charge sheet for Gray (show above) states:

…did unlawfully carry, possess and sell a knife commonly known as a switch blade knife, with an automatic spring or other device for opening and/or closing the blade within the limits of Baltimore City.

Granted, we are relying on imperfect information, but is there any additional support? There is, as reported in The Baltimore Sun: 

Meanwhile, a police investigation continues as Baltimore State’s Attorney Marilyn J. Mosby builds her case. The separate investigations by police and prosecutors have some conflicting findings.

While Mosby said Friday that the officers had made an illegal arrest because a knife Gray was carrying was not a ‘switchblade,’ a violation of state law, the police task force studied the knife and determined it was ‘spring-assisted,’ which does violate a Baltimore code.

This strongly suggests that the police believe, and will testify, that the knife Gray was carrying did, in fact, violate the Baltimore ordinance, rendering the officer’s arrest of Gray entirely lawful. This is not surprising as this is precisely the kind of law with which street-level officers would be intimately familiar. They have reason to use it regularly.

How did Mosby make this kind of basic mistake? Was she unaware of Baltimore city ordinances? That would be an odd thing for the Baltimore City Prosecutor. Was the pressure to charge a large number of officers so great she couldn’t wait, and became careless? Or did she know she was lying, and went ahead anyway because attaining social justice goals is far more important than trifles like obeying the law and telling the truth?

This will be very harmful to Mosby and her case, not only at the preliminary hearing scheduled for May 27, but at trial, if any of the charges are sustained. Expect the preliminary to be hastily rescheduled as cooler heads inform Mosby she doesn’t have the probable cause to sustain most, perhaps all, of the charges. Expect too, a frantic scramble by Mosby to try to find such evidence, evidence that should have been in hand long before any charges were filed.

THE EIGHTH AMENDMENT:

Charges announced against the officers in this case include charges of “misconduct in office,” and in every case, list a violation of the Eighth Amendment to fulfill that “charge.” This is, to put it as kindly as possible, bizarre, and the kind of mistake a first year law student might make if that law student were particularly dense. The Eighth Amendment reads: 

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Who, then, is involved with the Eighth Amendment? Not the police. They do not set bail, nor do they impose fines, and they are not involved with incarceration, beyond occasionally placing someone in a temporary holding facility. Even then, any problem with that facility that might reasonably invoke the Eight Amendment does not apply to an officer that placed a defendant there, but to the government that maintains the facility, and the specific corrections employees working there. The Bill of Rights may be understood to be a list of the rights of individuals, but it is, in application, a list of restrictions on government. It is not a list of criminal statutes that may be applied against police officers.

credit: wbay.com

credit: nypost.com

There is, to date, no known evidence of excessive force used by the officers involved, no physical evidence of beatings, or related marks left on Gray.  Note the manner of the officers “restraining” Gray in the photo above.  If there were, that would amount to charges like assault, not a violation of the Eighth Amendment. Obviously, Mosby is going to argue some theory to the effect that restraining Gray and placing him in a police van for transport someone constituted cruel and unusual punishment and therefore, somehow constituted misconduct in office. As restraining people arrested and transporting them in police vehicles is not only required police procedure, but not at all legally controversial, it is highly unlikely Mosby will get anywhere with such a theory, and likely that she will look, instead, foolish.

ELEMENTS AND GUILT BY ASSOCIATION:

A listing of the charges issued by Mosby’s office: 

Officer Caesar R. Goodson, Jr. [He drove the van]

  • Second degree depraved heart murder (30 yrs.)
  • Manslaughter (involuntary) (10 yrs.)
  • Assault/second degree (10 yrs.)
  • Manslaughter by vehicle (gross negligence) (10 yrs.)
  • Manslaughter by vehicle (criminal negligence) (3 yrs.)
  • Misconduct in office (8th Amendment*)

Officer William G. Porter

  • Manslaughter (involuntary) (10 yrs.)
  • Assault/second degree (10 yrs.)
  • Misconduct in office (8th Amendment*)

Lt. Brian W. Rice

  • Manslaughter (involuntary) (10 yrs.)
  • Assault/second degree (10 yrs.)
  • Assault/second degree (10 yrs.)
  • Misconduct in office (8th Amendment*)
  • Misconduct in office (8th Amendment*)
  • False imprisonment (8th Amendment*)

Officer Edward M. Nero

  • Assault/second degree (10 yrs.)
  • Assault/second degree (10 yrs.)
  • Misconduct in office (8th Amendment*)
  • Misconduct in office (8th Amendment*)
  • False imprisonment (8th Amendment*)

Officer Garrett E. Miller

  • Assault/second degree (10 yrs.)
  • Assault/second degree (10 yrs.)
  • Misconduct in office (8th Amendment*)
  • Misconduct in office (8th Amendment*)
  • False imprisonment (8th Amendment*)

Sgt. Alicia D. White

  • Manslaughter (involuntary) (10 yrs.)
  • Assault/second degree (10 yrs.)
  • Misconduct in office (8th Amendment*)

*Any sentence that does not constitute cruel & unusual punishment.

Note that several of the officers have been charged, twice, with “misconduct in office,” the clarifying notation for which is “8th Amendment.” Three are charged with false imprisonment, a charge that would have to hang on the idea that Gray was falsely arrested, which would now seem solidly disproven. The asterisked portion of the charges referring to the 8th Amendment would seem to suggest that Mosby means the misconduct in office has to do with excessive bail or fines, which is simply incoherent. It is possible that this somehow refers to Maryland’s statutes regarding official misconduct, but if so, why not simply spell out each specific offense in a probable cause statement? I’ve never seen anything like this.

I’ll get into the specific elements of the offenses charged in future updates, but for now, let’s examine an account from Fox News: 

Mosby said her office’s police integrity unit began investigating the case the day after Gray’s arrest and interviewed dozens of witnesses, viewed video, including of police statements, reviewed medical records and canvassed “the community and the family of Mr. Gray.

She said her probe found that the police officers, part of a bike patrol led by Rice, made eye contact with Gray, who has a rap sheet that includes several drug arrests. Gray ran from police, prompting the officers to chase after him, Mosby said. Gray surrendered a short time later and was handcuffed with his arms behind his back, she said.

‘It was at this time that Mr. Gray indicated that he could not breathe and requested an inhaler, to no avail,’ said Mosby, who also said the knife Gray was carrying clipped to the inside of his pants was not a switchblade and was not illegal.

Police held Gray on the sidewalk until Goodson arrived driving the van, Mosby said. Goodson, Rice, Nero and Miller loaded him into the van, she said, but did not secure him with a seatbelt, a policy that had been put in place department wide nine days earlier.

Moments later, Rice ordered Goodson to pull over and the officers took Gray back out of the van. The shackled Gray’s legs, filled out paperwork and put him back in, placing him on his stomach on the floor of the vehicle, Mosby said. It was after that, she said, that Gray suffered his injuries. Mosby said Gray was injured ‘as a result of being handcuffed, shackled by his feet and unrestrained inside’ the wagon.

Mosby said the police stopped at least one more time to observe Gray, but did not immediately request medical assistance for him despite his pleas. She said Goodson drove the vehicle to pick up another arrested suspect blocks away, rather than taking Gray immediately for medical help.

White, who had been sent to investigate citizens’ complaints about Gray’s initial arrest, looked in on him as he lay face down in the back of the van, Mosby said, but did nothing to help him.

‘She made no effort to look or assess or determine his condition,’ Mosby charged.

By the time the van arrived at the police station, according to Mosby, Gray was not breathing and had gone into cardiac arrest. He was then rushed to a trauma center run by the University of Maryland where he underwent surgery and later died, she said.

Mosby’s assertion that Gray was injured “as a result of being handcuffed, shackled by his feet and unrestrained inside’ the wagon,” is at once overly broad and likely unsupportable. A great many people are similarly restrained and transported without suffering the slightest injury, even while not wearing a seatbelt. If Mosby has specific evidence that can prove this charge, it is not currently in the public realm.

We do know (as far as we know) that Gray suffered a broken neck and at least one injury to his skin that may have been made by a bolt in the police van, but there is no direct evidence that those injuries were caused by any individual police officer, or if so how, yet the officer whose involvement appears to be almost entirely, if not entirely, driving the van, has been charged with second degree murder. This, despite there being no information—as yet—that he did anything affirmative that could have caused Gray’s death.

This is a major problem for the prosecution. What did each officer do that actually caused Gray’s death? It is not enough that they didn’t act perfectly at precisely the perfect time. That is, at best, negligence, but not homicide. The case of Sgt. Alicia White may illustrate the issue best.

According to media accounts, White, a supervisor, had nothing at all to do with Gray’s arrest or with restraining him or placing him in the van. She became involved only later and her involvement apparently consisted of checking on Gray at some point and watching him for a short time as he remained in the van. Apparently satisfied that Gray was being appropriately treated and was not in obvious need of immediate emergency medical care, she did nothing else, or at least, nothing that is currently known. How is it then that White, who apparently did not so much as touch Gray with a fingertip, finds herself charged with involuntary manslaughter, second degree assault and misconduct in office? If these charges are to be sustained on the theory that a supervisor is directly, criminally, responsible for the conduct of subordinates, every supervisor in the chain of command above White, including the Chief of Police and the Mayor can and should be charged with manslaughter as well. This is, of course, ridiculous, and absent direct evidence of affirmative acts that violate the elements of the statutes involved, the charges will almost certainly be dropped at the preliminary hearing—if it is conducted under the rule of law and not as a means of mob and social justice appeasement.

Baltimore lawyers including one who served on Mosby’s transition team, are skeptical of the charges as well: 

Caesar Goodson, who drove the van that transported Gray, faces the most-serious charge — depraved-heart murder for contributing to Gray death via reckless acts, including failures to restrain him properly and to give him medical assistance. But the state will have a hard time backing up that accusation, said lawyer Byron Warnken, who served on the new state’s attorney’s transition team.

‘Depraved-heart murder is an unintended murder, so nobody is alleging in this indictment that Officer Goodson who is charged with that in the indictment, intended to kill Mr. Gray In other words, what the officer did was so reckless and so depraved of any feeling or heart that it rises to the level of criminality,’ Mr. Alperstein said.

There have been, as yet, no accusations that Goodson’s driving had anything to do with Gray’s death, and any suggestion that failing to provide immediate emergency medical assistance upon demand will never stand. Arrestees often feign medical problems to avoid going to jail or to seek other kinds of advantage. Some hold their breath, pretend to be unconscious, fake seizures, and enact all manner of other performances. In this case, the officers stopped a number of times to check on Gray, which would indicate that even though they believed he was faking, they were doing due diligence to make sure. Even in this case, while Mosby can claim that the officers were, in hindsight, wrong in not immediately providing medical care, connecting that to a level of negligence amounting to murder is another matter entirely.

It should also be understood that an arrestee can appear to be completely normal one second, and be at death’s door the next. I’ve seen just that on many occasions. In such circumstances, no officer can be blamed for not watching an arrestee every second, ready to provide emergency medical aid they are not qualified to give. In this case, far too little time was allowed to explore all potential medical issues and explanations for Gray’s injuries and death prior to filing charges.

APPEASEMENT:

It is entirely reasonable to believe that Marilyn Mosby’s charges are primarily for political and social justice purposes, among them, placating the black population of Baltimore, toning down the tendency to riot, and maintaining political viability and advantage for the Baltimore Democrat political machine. But in appeasing the barbarians, Mosby is destroying justice and making future violence much more likely. Obtaining justice in any given case and riot control can never be linked. Rioters and arsonists don’t care at all about Freddie Gray or anyone else.

credit wbay.com

credit wbay.com

Appearing on Meagan Kelly’s program on May 04, 2015, Harvard Professor Emeritus Alan Dershowitz said: 

If you’re the prosecutor, you have to be concerned about doing justice for everybody — not just for the victim, not just for the family of the victim, not just for the youth of Baltimore, but also for the accused, for the policemen who have been accused and may have been scapegoated.’

‘but you can’t sacrifice individual defendants to the need to stop riots. Imagine jurors who are going to sit now in Baltimore and say, if we acquit these defendants, our houses might get burned down, our stores will be attacked, our children won’t be safe.’

‘Who is there on behalf of the people charged with crime?’ Dershowitz asked. Indicating he’s seen no evidence of murder, Dershowitz suggests Mosby has overcharged and is now at risk of ‘losing everything.

FINAL THOUGHTS:

As I have been careful to do thus far, I must note again that I don’t have all the information I need to fully understand this case. That information will be a long time in coming, particularly as Ms. Mosby begins to understand that at some point, she will have to actually put on a case that proves the elements of specific criminal statutes. Expect, as was the case with George Zimmerman, the prosecution to distract, obfuscate, foot-drag, and pull every dirty trick in the book to deny the defense the discovery lawfully due them. Ms. Mosby will absolutely have to slow down the process in a likely vain attempt to find the evidence she should have been certain she had before filing charges.

Part of understanding that far too much remains unknown is that there is much to be discovered about precisely how and why Freddie Gray died. It is tempting, and may well be reasonable, to believe that several officers had a direct hand in his death, but to imagine that six separate officers are criminally culpable is probably nonsense. Things just don’t normally happen that way. One or two officers–that’s reasonable. More–unlikely indeed.

In trying to understand Gray’s demise, it is important to remember that he had an extensive criminal record. He knew the ins and outs of manipulating the police and the system. He was not just Joe Average out taking the air. As we work to understand the motivations of the officers, try to learn what they knew and how that caused them to act throughout this situation, we must also remember that Freddie Gray had a significant role in determining the outcome as well.

If and when the preliminary hearing is held, we may learn quite a bit more. Pity the judge hearing the case. The pressure on him–or her–to sustain the charges will be overwhelming, and they very well may uphold charges they might not otherwise uphold. It would take a brave and ethical jurist indeed to throw out charges in this case even if they are not supported by the law. If the judges involved behave as they did in the Zimmerman case, the officers had better hope they find attorneys as dedicated and skilled as Donald West and Mark O’Mara.

I’ll continue to report on the case as more information becomes available.

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