The Freddie Gray Case, Update 5: Probable Causeless

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Freddie Carlos Gray, Freddie Gray, Jr., Major Sam Cogen, Marilyn Mosby

credit: libertynews.com

OH COME ON; YOU’RE MAKING THAT UP; NO RATIONAL, ETHICAL PROSECUTOR WOULD DO THAT:

That’s right; no rational, ethical prosecutor would.  Then there is Marilyn Mosby. Baltimore City Prosecutor Marilyn Mosby has caught well-deserved criticism for publically mouthing off about hearing protestors across America and “getting justice for Freddie Gray.” At a recent appearance of Prince–the artist formerly known as some bizarre cross between a radiation danger symbol and a biohazard symbol–in Baltimore, he played his song “Baltimore,” which features the line. “If there aren’t no justice then there ain’t no peace.” This would have been fine, if silly (and ungrammatical), but he invited Mosby onstage, and she apparently, with her husband, sat for a time and waved at the crowd. Hey, why shouldn’t prosecutors in highly racially charged cases that haven’t even gone to preliminary hearing yet be denied the right—I think it’s the 89^th Amendment or something—to get onstage with rockers, shill for social justice principles and boost their own political fortunes? You a racist or something?

credit: msbnc.com

NO SHERLOCK HOLMES:

Marilyn Mosby ran a parallel investigation with the Baltimore Police, which has not, thus far, worked out well for her. Perhaps some insight into why can be gained by understanding whom she chose to lead that investigation. 

Mr. [Avon] Mackel used to be a high-ranking Baltimore police officer, according to CNN. Well, until things went horribly wrong. In 2009 Mackel was stripped of his command position because of a grievous failure to follow through on allegations of a mishandled robbery investigation by two of his officers. In addition, according to that same CNN report the Baltimore Sun newspaper reported that police in Mackel’s district were falsely ‘down-classifying’ crimes in order to suggest crime rates were lower than was actually the case–and to make Mackel look more effective as a crime-fighter than he was. But it gets even more interesting. Four months after his demotion, Mackel engaged in a drunken gun-wielding incident at his home of sufficient severity that the Baltimore County police department sent in their SWAT team. Mackel was non-compliant with officers and obviously (the responding officers reported) intoxicated. Despite being tasered by the SWAT team, the armed and intoxicated Mackel managed to barricade himself in his bedroom. After that, the police record apparently gets vague, without any clear explanation for how the incident ended.

It will not be surprising, I suspect, to learn that Mackel was not arrested, and there is no record of the disposition of that case. It will take no imagination at all to understand what would have happened to an average citizen receiving such police attentions. And this is Marilyn Mosby’s chief investigator.

Notice Gray’s apparently uninjured neck

LIES, DAMNED LIES AND STATISTICS, OR A TREND?

Fox News reports on something that may or may not be relevant to the Freddie Gray case: 

Thousands of people arrested by Baltimore police over the past three years have been turned away from the city’s jail because their injuries are too severe, according to a new report. The Baltimore Sun, citing records dating back to June 2012, reported Sunday that corrections officers refused to admit over 2,600 detainees to the state-run Baltimore City Detention Center. The records showed that 123 of the detainees who weren’t admitted to jail had visible head injuries, the third-most common ailment cited by jail officials. Others had broken bones, facial trauma and high blood pressure. The records do not indicate how the people were injured or whether they suffered their injuries while in custody. However, they do suggest that police officers either ignored or did not notice the injuries. [skip] The Sun has previously reported that dozens of Baltimore residents have accused the city’s police of inflicting injuries on them and disregarding their requests for medical help. The paper reported in September 2014 that the city has paid out almost $6 million in court judgments and settlements in response to over 100 lawsuits filed since 2011.

It is impossible to know if this is indicative of gross, even institutional negligence on the part of the Baltimore PD, or merely what one might expect in a large, metropolitan area with a very high crime rate, including a preponderance of violent crimes. While such a report might initially seem damning, officers are not always able to notice injuries or their severity until they have people in a clean, dry, well-lit facility–like a jail intake facility–where they can get a good look at them, and suggesting that high blood pressure would be a reason for refusing entrance to jail places an impossible burden on officers. Must they now do a BP check on everyone they arrest before taking them to jail? And “thousands”?  Not 2,123?  Not 3,012? Absent a very great deal more investigation, including looking into each individual case, it’s impossible to draw any conclusions about this issue.

credit: nydailynews

PROBABLE CAUSELESS:

It’s now apparent that the Baltimore Police were shocked when Mosby filed charges based only on their preliminary report. Not only did she choose a primary investigator of dubious credibility, she also used the local Sheriff’s Department to produce probable cause statements on the actual charging documents, like that for Officer Caesar Goodson.  All PC statements were produced, and signed, by Major Sam Cogen. The PC statement for Officer Goodson reads:

On April 12, 2015, between 8:45 and 9:15 a.m., near the corner of North Avenue and Mount Street, Lieutenant Brian Rice of the Baltimore Police Department (BPD), while on bike patrol with Officers Garrett Miller and Edward Nero, made eye contact with Mr. Freddie Carlos Gray, Jr. (DOB 8-16-1989). Having made eye contact, Mr. Gray subsequently ran from Lt. Rice. Lt. Rice then dispatched over a departmental radio that he was involved in a foot pursuit, at which time bike patrol officers Miller and Nero also began to pursue Mr. Gray. (continued)

There is evidence that Gray may have been involved in a drug transaction when he made eye contact with Rice, which would go a long way toward explaining his sudden flight. Cogen surely omits this because it would provide more than sufficient reasonable suspicion for a Terry stop. Gray does have a substantial record of drug offenses. Officers making PC statements are required to tell the whole truth, and may not be selective. Because the Sheriff’s Office didn’t actually do the official police investigation, it’s possible Cogen didn’t know this, however, it’s also possible he left this essential bit of information out to make it appear the officers had no reasonable suspicion to stop Gray in the first place, which is precisely what Mosby is alleging.

Having come in contact with the pursuing officer, Mr. Gray surrendered to Officers Miller and Nero in the vicinity of the 1700 block of Presbury Street.

“Mr. Gray surrendered to…” This is an odd formulation for a police officer, unless he was directed to write it. Gray didn’t surrender; he was chased down and captured.

Officers Miller and Nero then handcuffed Mr. Gray and moved him to a location a few feet away from his surrendered location.

And the significance of moving Gray a few feet is? Moving someone arrested and cuffed a few feet this way or that way is so common and unremarkable it would be akin to an officer writing “after being handcuffed, the suspect continued to exist.” It has nothing whatever to do with–anything.

Mr. Gray was then placed in a prone position with his arms handcuffed behind his back. It was at this time that Mr. Gray indicated that he could not breathe and requested an inhaler to no avail.

Cogen is obviously trying to suggest that officers, in positioning him prone and handcuffing Gray’s arms behind him, were somehow being abusive, which is absolute nonsense. Absent some medical condition, everyone is handcuffed that way, and while waiting for transport of a prisoner who was a runner, any rational officer would prone them or otherwise make it difficult for them to run again. If Gray was actually able to speak, he could breathe, and notice that Cogen does not explain whether Gray was carrying an inhaler. If he were not, no police officer would have been able to respond to that request. They’d have no way to know what kind of medication Gray needed, nor would they have access to it. If Gray were carrying an inhaler, that would indicate a chronic condition, which could have a significant bearing on this case. Is so, what became of it?

Officers Miller and Nero then placed Mr. Gray in a seated position and subsequently found a knife clipped to the inside of his pants pocket. The blade of the knife was folded into the handle. The knife was not a switchblade knife and is lawful under Maryland law. These officers subsequently removed the knife and place it on the sidewalk. Mr. Gray was then placed back down on his stomach, at which time Mr. Gray began to flail his legs and scream as Officer Miller placed Mr. Gray in a restraining technique known as a “leg lace” while Officer Nero physically held him down against his will until a BPD wagon arrived to transport Mr. Gray.

The best current information indicates that the knife was indeed illegal, but Cogen is doing his best to make it look like the officers were maliciously determined to make a false arrest. What is more likely, that the officers restrained Gray before his legs began to flail, or thereafter? And very few people are willingly arrested. Cogen, however, is not satisfied with mere implication:

Lt. Rice, Officer Miller and Officer Nero failed to establish probable cause for Mr. Gray’s arrest as no crime had been committed by Mr. Gray. Accordingly, Lt. Rice, Officer Miller, and Officer Nero illegally arrested Mr. Gray. Upon arrival of the transport wagon, driven by Officer Caesar Goodson, Lt. Rice, Officer Nero and Officer Miller loaded Mr. Gray into the wagon and at no point was he secured by a seat belt while in the wagon, contrary to a BPD General Order.

As I noted in Update 4, there is nothing whatever unusual, and certainly nothing criminal, about officers choosing not to use a seatbelt, particularly for a prisoner who is not being entirely cooperative.

Lt. Rice then directed the BPD wagon to stop at Baker Street. At Baker Street, Lt. Rice, Officer Nero and Officer Miller removed Mr. Gray from the wagon, placed flex cuffs on his wrists, placed leg shackles on his ankles, and completed required paperwork. Officer Miller, Officer Nero and Lt. Rice then loaded Mr. Gray back into the wagon, placing him on his stomach, head first onto the floor of the wagon. Once again, Mr. Gray was not secured by a seatbelt in the wagon, contrary to a BPD General Order. Lt. Rice then directed Officer Goodson to transport Mr. Gray to the Central Booking and Intake Facility.

Again, Cogen is trying to make the officers look like criminals. Assuming that Cogen’s commentary is accurate and complete, this sounds like unremarkable, everyday procedure for handling a prisoner that is being uncooperative and banging around the vehicle, trying to make noise, damage the vehicle, or damage himself, which is a very common occurrence. There is evidence in this case that Gray, for whatever reason, was doing just that.

Following transport from Baker Street, Mr. Gray suffered a severe and critical neck injury as a result of being handcuffed, shackled by his feet and unrestrained inside of the BPD wagon. From Baker Street, Officer Goodson proceeded to the vicinity of Mosher Street and Fremont Avenue, where his subsequently parked the wagon and proceeded to the back of the wagon in order to observe Mr. Gray. Despite stopping for the purpose of checking on Mr. Gray’s condition, at no point did he seek, nor did he render, any medical assistance for Mr. Gray. Officer Goodson returned to his driver’s seat and proceeded toward the Central Booking and Intake Facility, with Mr. Gray still unsecured by a seat belt, contrary to a BPD General Order.

Cogen tries to make Goodson seem maliciously negligent, when it is equally, probably more, likely that he was merely doing due diligence in checking on Gray to make sure he was faking. If Goodson reasonably concluded that Gray wasn’t in medical distress, there is certainly nothing unusual or criminal about his doing nothing to render medical assistance, as Cogen put it. I think Cogen has made his point about the seatbelt, but he does nothing to explain why the officers did not use it, though his narrative is suggestive. If a prisoner needs to be restrained on the floor of a van, there is no possible way to use a seatbelt. Notice too that Cogen has asserted that Gray suffered a severe neck injury by being handcuffed and ankle cuffed and placed on the floor of the van. How does that cause a severe spinal cord injury? Where is the direct evidence of actions by Officer Goodson—or any other officer—that caused that injury? Also important is the fact that Cogen has essentially locked the prosecution into the theory that the initial arrest and restraint were not the cause of Gray’s injuries. They occurred only after he was transported at least some distance in the van, however, Cogen has no idea precisely when or where it occurred, or how. Absent that knowledge, how can anyone be accused of Gray’s death?

Several blocks later, Officer Goodson called into dispatch that he needed to check on the status of his prisoner and requested additional units at Dolphin Street and Druid Hill Avenue. Officer William Porter arrived on the scene near Dolphin Street and Druid Hill Avenue. Both Officer Goodson and Officer Porter proceeded to the back of the wagon to check on the status of Mr. Gray’s condition. Mr. Gray requested ‘help’ and indicated that he could not breathe. Officer Porter asked Mr. Gray if he needed a medic, at which time, Mr. Gray indicated at least twice that he was in need of a medic. Officer Porter than physically assisted Mr. Gray from the floor of the van to the bench. However, despite Mr. Gray’s appeal for a medic, both officers assessed Mr. Gray’s condition and at no point did either of them restrain Mr. Gray, per BPD General Order, nor did they render or request medical assistance.

This section is bizarre. By now, Major Cogen could reasonably begin every sentence by saying that the officers didn’t use a seat belt “per BPD General order.” And “despite Mr. Gray’s appeal for a medic, both officers assessed Mr. Gray’s condition,” and didn’t seatbelt him or call for medical assistance. That’s a very odd way to put things. If they assessed Gray, as they obviously did—even Cogen admits Goodson stopped and called for help for that purpose—what was the result of their assessment? Obviously, they didn’t think Gray in need of immediate medical assistance, and Cogen’s own words suggest that assessment was correct. If Gray’s spinal cord was severely damaged, he surely wouldn’t be talking, repeatedly requesting medical help, nor would Porter have been able to place him in a seated position without that kind of damage becoming immediately apparent, likely by Gray’s immediate death.

While discussing the transportation of Mr. Gray for medical attention, a request for additional units was made for an arrest at 1600 W. North Avenue. Officer Porter left the vicinity of Dolphin Street and Druid Hill Avenue to assist in the arrest of another prisoner at North Avenue. Despite Mr. Gray’s obvious and recognized need for medical assistance, Officer Goodson, in a grossly negligent manner chose to respond to the 1600 block of W North Avenue, with Mr. Gray still unsecured by a seat belt in the wagon, without rendering to or summonsing medical assistance for Mr. Gray.

Again, if the officers reasonably believed that Gray did not need immediate medical assistance, there is no negligence, gross or otherwise. Yet, Cogen is sort of implying that they decided he needed medical attention, but decided to do nothing about it, however, he presents no evidence of this. And no seatbelt; got it. If we assume Gray had already suffered his spinal injury—and Cogen is implying this–what possible aid could the officers have rendered? To add to the confusion, Cogen’s own narrative also strongly suggests Gray has not yet suffered that injury.

Officer Goodson arrived at North Avenue to Transport the individual arrested at the location of North and Pennsylvania Avenues, at which time he was again met by Officers Nero, Miller, Porter, and Lt. Rice. Once the wagon arrived, Officer Goodson walked to the back of the wagon and again opened the doors to the wagon to make observations of Mr. Gray. Sgt. Alicia White, Officer Porter, and Officer Goodson observed Mr. Gray unresponsive on the floor of the wagon. Sgt. White, who was responsible for investigating two citizen complaints pertaining to Mr. Gray’s illegal arrest, spoke to the back of Mr. Gray’s head. when he did not respond, she did nothing further despite the fact that she was advised he needed a medic. She made no effort to look, assess or determine his condition. Despite Mr. Gray’s seriously deteriorating medical condition, no medical assistance was rendered to or summonsed for Mr. Gray at that time by any officer.

This section too is odd. At this stop, Gray is on the floor again, with no explanation about how he got there. White was supposedly told by persons unknown that Gray “needed a medic,” not that he somehow requested one, yet somehow no one called a medic. This is nonsense. Every officer present had a portable radio. If any of them actually believed Gray needed medical help, they would surely have called for it. To believe otherwise requires all of these officers to engage in a willing conspiracy to kill Gray by denying him obvious and necessary medical attention. There is also evidence that an ambulance was called at some point, but was delaying in arriving. Cogen also claims that Gray’s medical condition was “rapidly deteriorating,” but there is no evidence of exactly what that condition was, how its deterioration can be identified, or its cause. Despite speaking “to the back of Mr. Gray’s head,” it appears Sgt. White was convinced that Gray was not in danger, and this too would not be at all unusual.

After completing the North Avenue arrest and loading the additional prisoner into the opposite side of the wagon containing Mr. Gray, Officer Goodson then proceeded to the Western District Police Station, where contrary to the BPD General Order, he again failed to restrain Mr. Gray in the wagon for at least the fifth time.

If Gray was, as the previous section indicates, on the floor, there would be no possible way to use a seatbelt.

At the Western District Police Station, the defendant arrested at North Avenue was unloaded, escorted and secured inside of the police station prior to attending to Mr. Gray. By the time Officer Zachary Novak, Sgt. White, and an unknown officer attempted to remove Mr. Gray from the wagon, Mr. Gray was no longer breathing at all. A medic was finally called to the scene, where upon arrival, the medic determined that Mr. Gray was now in cardiac arrest and was critically and severally injured. Mr. Gray was rushed to the University of Maryland Shock Trauma Unit, where he underwent surgery. On April 19, 2015, Mr. Gray succumbed to his injuries and was pronounced dead. The manner of death, deemed a homicide by the Maryland State Medical Examiner, is believed to be the result of a fatal injury that occurred while Mr. Gray was unrestrained by a seat belt in the custody of the BPD wagon. All events occurred in Baltimore City, Maryland.

Seatbelt; check. What, then, is the probable cause for the charges against Officer Goodson? According to this probable cause statement, Goodson didn’t call a medic, and didn’t use a seatbelt. There seems no question that Gray suffered an injury that can normally be caused only by significant trauma applied directly to the neck, such as a severe whiplash injury, but there is no suggestion of how he sustained his injury in this statement. There seems no doubt that his injuries happened some time after he was arrested and detained. However, there is in this statement no suggestion how or when that injury occurred or who caused it. What’s conspicuously missing is even the suggestion of any direct action taken by Officer Goodson to violate the very specific elements of any of the charges lodged against him. That’s what a probable cause statement is supposed to do: provide probable cause that indicates a specific law has been violated and that a specific person, in very specific ways, did it. Officer Goodson is being essentially accused—over and over–of driving Gray without a seatbelt and thinking he was faking his medical complaints, things reasonable police officers do every day of the week. An example of a common and competent PC statement might be:

On May 25, 2015 at 11:16 PM, at the Corner Bar, John Smith engaged in a verbal altercation with Bob Jones. As the shouting became more angry, Smith threatened to ‘kick Jones’ ass’ and swung his right fist and struck Jones on the nose, breaking it. Jones did not attempt to strike or strike Smith.

With such a statement, a charge of assault against Smith is obviously valid. The statement makes clear the affirmative acts Smith made to violate specific elements of the statute. If, however, the PC statement said nothing about Smith swinging his fist, hitting Jones on the nose or breaking it, if it only mentioned they were both at the same place at the same time and there was an argument or altercation, there are no grounds for an assault charge. The seatbelt issue is ludicrous in that every rational police officer of every rank knows that not every rule can be followed to the letter in every situation. The defense will dispose of this issue like this:

Defense: Deputy Chief Jones, is the seatbelt rule meant to be applied in every case regardless of the circumstances?

DCJ: It is a general guideline; it can’t be applied in every case.

Defense: So if an officer had a good reason not to use a seatbelt on a prisoner, you would automatically discipline them?

DCJ: No.

Defense: Would choosing not to use a seatbelt in such a case indicate criminal intent or gross negligence on an officer’s part?

DCJ: No.

Even if DC Jones tried to weasel around reality, any good defense attorney could pull the truth out of him. Normally, enforcing such a rule requires evidence of purposeful violation for no good reason. There is no such showing here, yet Mosby seems to hang her entire case on the seatbelt issue. By pushing this issue, Mosby may establish a precedent that forces officers to seatbelt everyone, even if it would be detrimental to the health and safety of the prisoner and officer.

Most importantly, there are no statements demonstrating affirmative acts on Goodson’s part that led to Gray’s death. Was he driving wildly in an attempt to injure Gray? Obviously not. Mosby would have been certain to make that public were it true. Did he strike Gray? Put him in a chokehold? Slam his neck in a door? Again, were any of this true, Mosby would surely be shouting it from the rooftops. Also conspicuously absent is any mention of the statement of the other prisoner that Gray was banging against the interior of the vehicle and making a great deal of noise. We don’t know if this was an attempt by Gray to set up a lawsuit, if he was just frustrated, or if, due to his injury, he was seizing, but this is certainly a significant factor that Maj. Cogen omits. Part of the serious problem here is that the rush to make arrests has made it impossible for the prosecution to rule out a wide variety of medical issues that could have contributed to or caused Gray’s death. That’s not a mistake the defense will make.

The charges are ridiculous. Goodson is charged not only with Second Degree Murder, but with Manslaughter, and Assault in the Second Degree, the first requiring malice aforethought, the second great negligence, and all requiring specific, affirmative acts directly linked to the injuries suffered by Gray. There is no such evidence in this PC statement. Goodson is also charged with negligent manslaughter with an auto or boat, and negligent manslaughter with vehicle, and finally, misconduct in office, which charge seems to be completely dependent upon Goodson being first convicted of at least one other charge. Again, there are no facts alleged that would support a violation of any element of any of these charges. Goodson was driving, Gray wasn’t seatbelted, Goodson didn’t call a medic, so he must, somehow, be guilty of all these offenses. If the preliminary hearing is conducted in accordance with the rule of law, and there is no evidence produced beyond what is present in this document, every charge must be dismissed.

But what of Sgt. White and the other officers involved? Surely there must be more specific probable cause listed on their charging documents?

Amazingly, the PC statements for everyone involved, regardless of their charges are, word for word, identical. There are no differences, no specific statements of specific and distinguishable acts the individual officers did to violate specific statutes. They may, at least partially, be copies. According to the universal PC statement, Sgt. White is guilty of manslaughter, second degree assault and misconduct in office because she looked at Gray, spoke to the back of his head, and didn’t call a medic. There is nothing else, no evidence of anything she actually did to cause or contribute to Gray’s injuries, though Cogen insinuates that she too was somehow involved in not using a seatbelt.

If you’ve read the PC statement on Goodson’s paperwork, you’ve read them all, and there is no probable cause there. Because Mosby acted with such haste, the PC statement cannot provide even a hint of how Gray’s injuries might have occurred. There is no theory of any specific crime, and no way to prove one if a theory did exist. For all of the officers, the misconduct in office charge is completely dependent on their being first convicted of one of the other charges because the sole evidence of misconduct is their alleged commission of the listed crimes. How, pray tell, do the phantom actions of the black officers involved, particularly Officer Goodson and Sgt. White, contribute to the social justice narrative of evil white cops ruthlessly murdering young black men? Perhaps their black lives, and the lives of their presumably black families, don’t matter?

GRAND JURY TO THE RESCUE?  

As I and others have suspected, Mosby may take the case to a grand jury before the May 27 preliminary hearing, primarily to bypass that hearing in the hope of avoiding the loss of every charge. If the state has a solid case, preliminary hearings are often waived by the defense as the parties plea bargain. The Baltimore Sun reports: 

Defense attorneys for the officers charged in the Freddie Gray case anticipate their clients will be indicted by a grand jury in the next two weeks. The attorneys have asked that a stenographer be appointed to transcribe the grand-jury proceedings or that an audiotape recording be made. They claim misinformation was included in the original charging documents, underscoring the need to know what prosecutors tell grand jurors. ‘It is imperative to have access to the comments of the presenting prosecutor and the instructions pertaining to the applicable law made by the prosecutor to the grand jurors,’ states the motion, which was filed Monday.

As you’ve seen in this article: no kidding. Mosby would want to go this route because a grand jury hears only what the prosecution wants it to hear. Prosecutors can withhold evidence, mischaracterize it, even lie outright if they wish, thus the venerable aphorism that a prosecutor can get a grand jury to indict a ham sandwich. Also, grand jury proceedings are secret, so Mosby can avoid public scrutiny of her actions and can keep the racial pot boiling. If Mosby does take this approach, expect to see some charges dropped entirely, and perhaps even new, previously unmentioned charges added. This case continues to become stranger and stranger. If the prosecution had a solid case, we would be seeing none of this.

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 

The Freddie Gray Case, Update 4, Belt Me