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credit: the hoopla.com.au

credit: the hoopla.com.au

Previous articles in this series are:

The Freddie Gray Case: Initial Impressions 

The Freddie Gray Case, Update 2 

The Freddie Gray Case, Update 3: Ludicrous Speed 

Did you know that Prosecutor Marilyn Mosby, in her berserk, inexperienced haste, actually issued mistaken arrest warrants for two innocent Baltimore citizens? Read on.

BUCKLE UP:

Let’s address an issue much mentioned by Prosecutor Marilyn Mosby, who apparently believes this to be an issue revealing of malice on the part of the officers, or she at least believes she can convince the public of this: seatbelts. Depending on the community, arresting officers transport people they arrest in their assigned patrol vehicles. In bigger cities, prisoners are transported by designated, van-driving officers; officers don’t normally transport the people they arrest. This maximizes manpower usage as officers can remain on the street rather than taking the time to transport and book prisoners. Driving a transport van is usually considered an annoying and potentially dangerous assignment, and is usually rotated among the members of a shift to spread out the love. Some vans, as in the case of Baltimore, are designed to separate and more effectively confine prisoners, which makes it more difficult for them to hurt each other, themselves, or officers, even though that may make it more difficult for the driver to keep an eye on them all the time.

In smaller law enforcement agencies, officers usually call out beginning and ending mileage numbers, and those transmissions are time encoded on the record. Officers do this, particularly when transporting prisoners of the opposite sex, to avoid claims of sexual abuse, assault, or similar issues. Accordingly, when an officer is transporting a prisoner, they commonly drive immediately to and from the jail by the shortest route.

When transport vans are involved, such procedures aren’t normally followed, and the vans don’t head for the jail until they are full of prisoners unless there is a compelling reason to do otherwise. This is done to keep patrol officers on the streets rather than wasting hours transporting and booking prisoners. As a result, a van-driving officer could easily take quite awhile to get a load of prisoners to jail. Depending on the usual procedures of an agency, that officer may or may not call dispatch with every stop they make. However, when they stop to pick up a prisoner, and when they’re back in service after a stop, those are commonly matters transmitted to dispatch.

Seatbelts may or may not be used on prisoners. Many agencies have policies that require them, but every officer and administrator knows it may not be possible to use them in every case. They’re generally a good idea, but they can be dangerous. In this, as virtually every other facet of police work, it is necessary for officers to have substantial discretion.

No officer wants to lean into the tight confines of the backseat of a contemporary police car, putting his face and ears in biting or kicking distance of a prisoner. The same applies to many transport vans. In addition, seatbelts force a prisoner to lean back against the seat, putting pressure on the handcuffs, which can cause great pain, and force officers to make stops to adjust the seatbelt, handcuffs, etc., all of which increases the potential danger to officers. People on their way to jail often do very stupid and dangerous things and smart officers have contact with them as little as possible and only on their terms.

When a prisoner is angry or even passively resisting, using a seatbelt may easily become impossible. Obviously, when a prisoner is actively resisting, it may be far too dangerous to even attempt. In some cases, an officer may more than reasonably judge it’s safer to simply lay someone on the seat or floor of a patrol car or van. Giving Ms. Mosby the benefit of the doubt–she is very new to the job–most people don’t understand these dynamics. Why should they and how could they? It’s very much outside the experience and imagination of most Americans. Failing to use a seatbelt on a prisoner is not, by any stretch of the imagination, necessarily negligence or a sign of malign intent, even if there is a regulation regarding it. Most people would be amazed at the profusion of police regulations and how often officers must ignore them merely to do their jobs properly.

Regardless of whether it is possible to use a seatbelt, any officer transporting a prisoner is responsible for their safety and must drive in such a way as to reasonably protect it. Of course, just as with regulations demanding seat belt use, rational officers and administrators know that such regulations cannot always be followed. An inattentive driver may run a red light and t-bone a police car. An officer may have to swerve to avoid a child that suddenly runs into their path, and so on.

A related issue in this case is the fact that the officer driving the van stopped from 3-4 times, apparently to check on Freddie Gray. Some have even suggested that this fact alone is proof of evil intent, even torture, on the part of the officers. Highly unlikely. Officers driving a transport van in particular have a variety of legitimate reasons for stopping along their way, which reasons include stopping to pick up additional prisoners, stopping to check on prisoners to ensure they are still secured and not in distress, stopping to further restrain them to prevent them from hurting themselves if they’re making noise–which may have been the case with Gray–damaging the vehicle–which also may have been the case with Gray–or escaping, and a variety of other reasons.

What seems clear at the moment–I am very much aware that I am operating on only partial information, much of which is media accounts, and is therefore best taken with substantial skepticism–is that the officers were aware that Gray was claiming medical issues. It also seems obvious they didn’t give them much credence. Is this unusual? Evidence of evil intent? Aren’t those stops evidence they were using that opportunity to do something bad to Freddie Gray?

Prisoners often claim false medical problems. Particularly for officers driving transport vans, it’s a daily affair. People do it to try to get out of handcuffs in the hope of attacking officers or escaping. They do it because they’re angry with the police, with themselves, or just because they’re emotional and out of control. They do it to try to set up a lawsuit. I’m often seen prisoners beat themselves bloody against the interior of a police vehicle and claim they were beaten by officers. Even so, officers are forced to use their best judgment, and if in doubt, normally call for emergency medical assistance, or divert to a medical facility, which may, in some circumstances, be faster. Many officers will do what probably happened in this case: they don’t call for medical help—paramedics really dislike false alarms–but occasionally stop to check out the prisoner, just to make sure they really are faking.

It should be kept in mind that very few officers are certified emergency medical technicians. They’re just not qualified to diagnose medical conditions that may or may not go bad in seconds. That said, many–not all–officers have more opportunities to see and recognize potentially dangerous medical situations than most people, but this still doesn’t qualify them as medical professionals. Any officer trying to assume that role is in hot water.

In this case, at least one of those stops is attributable to Sgt. White, who in following up citizen complaints, met with the van at some point to look into Gray’s condition. Unless one is willing to believe that a supervisor who had nothing whatever to do with the arrest of Gray would, seeing him in mortal medical distress, simply ignore his condition and let him die, it must be assumed that White did observe Gray, listened to the officers, and concluded he had not been brutalized, and was in no immediate danger. It is possible that White believed Gray to be faking and was mistaken—she’s almost certainly not an EMT–but the alternative is unlikely.

In short, considering what is currently known, I see nothing whatever unusual or potentially incriminating about the handling and transport of Gray. As I’ve explained, the facts as we know them appear to indicate officers taking reasonable care for Gray’s welfare and using reasonable discretion in their handling of him.

Baltimore Prosecutor Marilyn Mosby credit: businessinsider.com

Baltimore Prosecutor Marilyn Mosby
credit: businessinsider.com

PROSECUTION TROUBLE?

Andrew Branca at Legal Insurrection is also following this case and observes that the prosecution already appears to be in trouble: 

It is perhaps worth stepping through the timeline of Officer Nero’s participation in the arrest and transport of Freddie Gray, and juxtapose that against the five criminal charges brought against him. (Note: we’re recounting the timeline “facts” as reported by the New York Times.)  All events occur on April 12, 2015.

8:39:12 AM

Officer Nero, Lieutenant Brian Rice, and Officer Miller are on bike patrol in a high-crime/drug area of Baltimore, and spot Freddie Gray–a known convict and career street-level drug dealer–acting suspiciously.

This raises the reasonable suspicion needed to justify a “Terry stop,” (commonly known as stop-and-frisk), and the officers seek to do so with Freddie Gray.

(For more details on a “Terry stop,” see Was Freddie Gray’s Arrest Lawful? Almost Certainly.)

Gray observes the officers approaching and flees their lawful stop, further establishing reasonable suspicion. The officers pursue.

8:39:52 AM

Freddie’s flight from the lawful Terry stop lasts only 40 seconds before the officers bring him to a halt.

(Humorously, the New York Times describes the end of this flight and pursuit as Gray ‘surrendering to’ the pursuing officers.  I guess the NYT forgot how to spell ‘captured by.’)

8:40 AM

The officers prone out Gray and handcuff him, all perfectly lawful and consistent with securing the safety of a Terry stop.

Photos of this point in the contact show Gray, handcuffed, face down on the pavement with one officer kneeling to his left side, and the other, kneeling over and straddling, without applying any pressure to, his ankles. These photos show no evidence of abuse or even active restraint.

Prosecutor Mosby claims that at this point Gray requested an inhaler, and was not provided one.  She does not indicate her evidence for this claim, nor whether the officers or Gray even had an inhaler in their possession that they could have offered Gray, nor whether the officers have a legal duty–or are even medically qualified–to provide medical assistance to a suspect.

Raising Gray to a seated position, Officer Nero (along with Miller) observes a pocket knife clipped to Gray’s right pocket.  The knife is secured and examined, again entirely consistent with securing a safe Terry stop.

NOTE: Nero’s attorney has filed a motion to examine the knife to confirm what Baltimore Police have claimed: the knife was indeed illegal under Baltimore City law, making Gray’s arrest entirely legal. The complaint regarding Gray, written by Officer G. Miller, gives this probable cause for arrest:

[Gray] fled unprovoked upon Gray noticing police presence. The defendant was apprehended in the 1700 block of Presbury St. after a brief foot chase. This officer noticed a knife clipped to the inside of his right front pants pocket. The defendant was arrested without force or incident. The knife was recovered.

The official charging document lists the Baltimore city charge regarding the knife. The timeline continues:

After the van travels one block Officer Goodson stops the van, purportedly at the direction of police Lieutenant Brian Rice. Along with Officers Miller and Nero, Rice removes Gray from the van, place him in leg restraints, and return Gray to the van, placing him on the floor.

There are many lawful reasons why this conduct may have occurred.  Leg restraints are commonly used only when a suspect remains tumultuous even when handcuffed, and may present a risk of physical injury to himself or others if he is not further restrained in this manner.  Reports that there was another passenger in the van who reported loud noises from Gray’s compartment consistent with a tumultuous suspect would support such a scenario.

Another possibility, mentioned in the first article of this series, is that Gray had an underlying, serious medical condition of which even he might not have been fully aware. The thrashing about and noises noticed by another prisoner may have been spasms or seizures.

In any case, Mosby makes no claim that the use of the leg restraints was unlawful.

Branca concludes, based on this information, that none of Mosby’s charges, even the minor ones, will be likely to survive. Again, we’re not absolutely certain it’s completely accurate, and it’s possible—but unlikely—that Mosby has additional, unknown evidence that will actually support at least some of the charges. If so she is refusing—comically and unethically—to make the evidence known. More about that shortly.

There never seemed to be much of an evidentiary basis for the more serious criminal charges brought by Mosby against the officers–the second degree depraved heart murder and the multiple counts of manslaughter, in particular.  Thus Mosby’s charges were always exceedingly vulnerable from ‘the top.’

Now it seems that even the lesser charges may lack even the minimal evidentiary basis to survive a probable cause hearing that due process demands the officers be entitled to, making Mosby’s charges vulnerable from ‘the bottom.’

I suppose only time will tell whether any of the charges whatever will remain of those Mosby brought against these six officers once due process has had its day.  Personally, I’ll not be placing my bets on Mosby.

DOUBLE SECRET EVIDENCE:

At his Law Of Self Defense blog, Branca disembowels Mosby’s laughable claim of the moral high ground:

While the evidence we have obtained through our independent investigation does substantiate the elements of the charges filed, I refuse to litigate this case through the media.

The evidence we have collected cannot ethically be disclosed, relayed or released to the public before trial. As I’ve previously indicated, I strongly condemn anyone in law enforcement with access to trial evidence, who has or continues to leak information prior to the resolution of this case. These unethical disclosures are only damaging our ability to conduct a fair and impartial process for all parties involved. (emphasis added)

Branca replies to Mosby’s farcical statement:

Really, Prosecutor Mosby? The evidence we have collected cannot ethically be disclosed, relayed or released to the public before trial? Really?

This is laughable on so many levels I’m sure I’ll miss a few. (Fellow counsel, feel free to chime in in the comments, as always.)

First, anecdotally, I would share with the reader than in the case of the George Zimmerman trial the entire discovery file, literally thousands of pieces of evidence, was made available to the public throughout the many months preceding the trial proper.  I know, because I accessed that evidence pre-trial, and frequently.

While full disclosure of a discovery file is not, in my experience, the norm, the notion that it is forbidden or unethical to disclose any and all evidence prior to trail is utterly ridiculous.

Second, does Mosby propose to deny these officers probable cause hearings on the charges against them, at which she will be compelled to disclose the evidence supporting the charges?

Alternatively, does Mosby propose to conduct these probable cause hearings in secret, closing them to the public?

Third, does Mosby intend to deny discovery to the defendant’s legal counsel?

Alternatively, does Mosby propose to meet her discovery obligations, but require that the defense counsel keep the shared evidence secret from the public?  How is the defense to conduct it’s own investigations of the evidence if it cannot public disclose even that the evidence exists?

What about Mosby’s press conference last Friday, when she recounted the events surrounding Freddie Gray’s death, all of which is evidence?  Under the ‘Mosby Doctrine of Evidence’ she herself acted unethically because she ‘disclosed, relayed or released [evidence] to the public before trial.

It’s true that evidence is not normally released until a criminal investigation is concluded, but in this case, Mosby jumped the gun—and the shark—and filed charges long before the investigation was concluded. Even so, she has an obligation to release, not only to the defense but the public (all government records are public property), all evidence used to support the charges lodged to date. The defense has a general right to discovery of all exculpatory evidence and absent a specific court order, may release it as they please. If, at the preliminary hearing, the state can’t produce probable cause, the court may dismiss all charges with prejudice—they may never be filed again—preventing the prosecutor from taking multiple runs at the defendants. This is why no rational prosecutor files any charge they’re not certain will survive a preliminary hearing, and usually, that can’t be proved beyond a reasonable doubt at trial.

What’s happening is surely that Mosby knows by now that all of the evidence is not in. It’s also surely obvious, even to her, that she has jumped the gun and probably won’t be able to find any actual evidence, so she wants to keep everything secret, not for the integrity of the criminal justice process, but to protect herself and her political cronies, and secondarily, to appease the ravening mob. 

FORMER PROSECUTOR: WHAT THE…!?

Page Croyder

Page Croyder

Page Croyder was a prosecutor in Baltimore for more than 20 years. She retired in 2008. Her take on Mosby and this case is not encouraging. 

Baltimore State’s Attorney Marilyn Mosby’s  “quick” and “decisive” action in charging six Baltimore police officers a mere two weeks after the death of Freddie Gray reflects inexperience, recklessness, political ambition, or all of the above.

Alan Dershowicz, the noted defense attorney, sharply criticized her for using her charging power as ‘crowd control.’   John Banzahf, a George Washington University law professor, predicted the eventual dismissal of most if not all the charges.  The breadth of the charges, Mosby’s overreaching, is all-too-obvious.

Such criticism among prosecutors is relatively rare. Most often, they allow each other substantial discretion.

Any prosecutor interested in the truth and in justice would have used all the tools at her disposal to find them.  She has perhaps the most experienced homicide prosecutor in the state of Maryland as chief of her homicide unit, but did not ask him to investigate.  She had access to the completed police report only one day before filing charges. And she failed to make use of the Grand Jury to gather, probe and test the evidence before a group of average citizens.

The Fraternal Office of Police called Mosby’s charges an ‘egregious rush to judgment.’  It smacks more of a calculated push to the spotlight, filing charges after a mere two weeks.  She conducted her own ‘parallel’ investigation using her police integrity unit (the only unit for which she fails to list a supervisor on her website.)  She received the autopsy report the same day as her press conference announcing the charges.  In her haste to step into the national limelight, she circumvented normal charging procedures by grabbing a member of the sheriff’s office to file them for her.  Her actions appeared calculated for maximum surprise and effect, and she got it.

I’ll be exploring these issues—including the dubious character of Mosby’s chief investigator–in more detail in the next article in this series.

But she was so hasty she drew up warrants for the wrong people.  And her arrest of two of the officers for making an illegal arrest was itself ‘illegal.’  Had she taken the time to discuss it with the police department, she’d have avoided an embarrassing and unjust result.

By all means, take the link. Mosby issued arrest warrants for local people of the same name as several of the officers: an elementary school cafeteria manager and a plumber. Oops!

Mosby has undermined the cause of justice rather than promoted it with her haste.  She has created an expectation of guilt and conviction.  But her own charging documents do not even support the most sensational charge of second degree murder, and they raise multiple points of doubt about other charges.  If no convictions occur, many will blame the system as unfair or unjust, when it may have been Mosby’s own lack of competence and/or ambition in bringing charges so quickly. However much her performance raises her to star status, she will have dealt a blow to the justice system.

If I were a Baltimore police officer, I’d be looking for another job immediately.  And as a Baltimore citizen, I may start looking for someplace else to live.   When the police cannot depend upon the state’s attorney to be as thorough, competent, non-political, and fair with them as she is supposed to be with all citizens, none of us will be safe.

Quite.

OBAMA DEPARTMENT OF JUSTICE TO THE RESCUE!

I’m sure it’s no surprise that the DOJ has announced its own investigation into the Baltimore Police Department. 

New AG Loretta Lynch has already been there. There can be no question that regardless of the evidence, of the lack thereof, the DOJ will, as it has done with many cities, end up in charge of the Baltimore PD, and essentially, Baltimore. The result will be policing by statistics, and black criminals will become essentially immune from arrest. Ms. Croyder is correct: now would be an excellent time for Baltimore police officers to seek other employment, and for every honest citizen of Baltimore to find someplace else to live before the federal government turns Baltimore into even more of a Mad Max-like post-apocalyptic dead zone.

More to come.

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