In the Freddie Gray case, little of import will likely be known for some time. As I noted in past articles, Prosecutor Marilyn Mosby would be likely to bunker up, desperately trying to find evidence that could possibly support her hastily concocted and preposterous charges. Previous articles in this series are:
And so she has. Mosby has, hilariously and pathetically, issued a press release claiming the moral high ground by refusing to discuss anything about the case, this after her previous media strategy of recklessly discussing any and everything about the case while sucking up to the social justice crowd of which she is obviously an enthusiastic member. Mosby has taken the case to a grand jury, proving the aphorism that a prosecutor can get a grand jury to indict a ham sandwich. Unlike prosecutor Robert McCollough in the Michael Brown case—he presented the grand jury with all the evidence, even that which did not argue for indictment—Mosby surely presented only the innuendo and outright falsehoods that were the single, general probable cause statement justifying the original charge. Mosby’s likely selective presentation of evidence, and the political climate of Baltimore obviously encouraged jurors to deliver the appropriate, social justice indictments which are somewhat different from Mosby’s original charges.
Mosby has not relinquished her hold on any of the six officers, and has shifted charges, obviously in the hope of being able to get an easier conviction. Explaining the changes in charges, Mosby noted that prosecutors should alter charges as the investigation progresses.
No. They should lodge charges only after the investigation is done. There should be no need to alter charges at all.
I’ll be analyzing these new charges in the next update. In the meantime, there are several other predictable developments to report:
MOTIONS: The New York Times, as one might expect, does its best to uphold the narrative:
Less than two weeks after six police officers were charged in the arrest and death of Freddie Gray, the officers’ lawyers and supporters have sketched the outline of a defense, taking aim at the substance of some of the most serious accusations, as well as at procedural issues. Last Friday, lawyers for the six officers filed motions to dismiss all charges and asserted that Marilyn J. Mosby, the state’s attorney for Baltimore City, was so tainted by conflicts of interest that she could not have fairly judged the merits of the case. They also argued that she misread the law in charging that Mr. Gray’s arrest for carrying an illegal knife — the reason for detaining him in a police van where he suffered a fatal spinal cord injury — was without foundation.
The best currently known information suggests that these defense assertions are accurate.
In interviews, lawyers for some officers and others familiar with the defense strategy paint a vastly different picture of what happened to Mr. Gray, who was 25 when he died. The officers, they say, were acting by the book, and they had no cause to believe the arrest would cost Mr. Gray his life. Under that explanation, Mr. Gray was treated no differently from thousands of other people who have been arrested or detained. His death, the lawyers argue, was not the result of police brutality or even indifference to his safety — even though they did not buckle him into a seatbelt — but of a tragic accident. Although an autopsy found bruises and other marks consistent with a fall that could have caused Mr. Gray’s spinal cord injury, according to one person with knowledge of the investigation, there was no indication that he had been beaten or otherwise mistreated. That person said that without a cellphone video of Mr. Gray’s arrest, which shows him turning his neck and apparently supporting his weight while standing outside the back of the van, it would have been virtually impossible to determine that his fatal neck injury occurred in the van.
As I’ve pointed out in previous articles, the officers did appear to follow proper police procedure in their handling of Gray. I’d be interested in the NYT’s information regarding the autopsy since some reports indicate that not even the Baltimore Police have a copy of that document, nor, probably, do defense lawyers. We may be reasonably sure that the autopsy contains no smoking gun, no indication that Gray was beaten or anything else that would link his injuries or demise directly to any actions by the officers. If such information existed, Mosby would surely be leaking it to friendly media outlets like the NYT. Interestingly, the NYT actually shows a bit of even-handedness:
But at trial, prosecutors will need to show beyond a reasonable doubt that the officers were responsible for Mr. Gray’s death. That may not be easy, given the uncertainty surrounding how and when Mr. Gray was fatally injured, and that most officers were present only sporadically during his time in custody. Two defense lawyers said Ms. Mosby might be seeking to build her case around unreleased statements that five of the six officers voluntarily gave investigators. But legal considerations, including the Fifth Amendment protection against self-incrimination, could make the statements inadmissible in court.
It’s highly unlikely anything the officers said would be helpful to the prosecution unless multiple statements were significantly different in significant ways. But the NYT hits on the primary issue that could, if the courts actually work on the rule of law, end the case early: “most officers” were indeed involved only sporadically and likely had no direct role, yet all have been slapped with severe felonies. There has been, thus far, no information available to the public that constitutes probable cause to believe the officers committed any crime.
Still, some criminal defense lawyers say Ms. Mosby’s case may be too hastily prepared, and her charges too ambitious, to weather a trial. [skip] Taken together, experts say, the murder and vehicular manslaughter charges suggest that Ms. Mosby believes Mr. Gray’s fatal injury was caused by a ‘rough ride’ — a deliberately turbulent trip in the police van, perhaps as punishment. The second-degree murder charge effectively accuses Officer Goodson of being wantonly reckless in his treatment of Mr. Gray, knowing that he could die, but proceeding anyway. In charging three other officers with manslaughter, Ms. Mosby appears to have concluded that they knew Mr. Gray was at risk of dying, yet they failed to properly secure him inside the van and later failed to seek medical aid.” Yet the probable cause statements—word for word the same for every officer—contained no evidence whatever to support these charges.
Regular readers will find this from the NYT to be very familiar; these are the same points I’ve raised. I’m not sure whether to be pleased or worried that the NYT recognized the same issues.
Whether the officers had read or been briefed by superiors on the changes is unknown. In the past, officers sometimes skipped putting a seatbelt on detainees in the vans out of fear for their own safety. ‘In the vans we have been provided with, it is difficult to seatbelt a prisoner without the officer being at risk of getting assaulted, spit on, bitten or kicked,’ Sergeant Cherry said.
Regarding the knife charge, this is also an interesting observation:
The confusion itself could be the charge’s undoing. Last year, the Supreme Court ruled that a police search could be legal, even if it was premised on a mistake. What counted, the court said, was whether the officer’s mistake was reasonable. ‘Maybe as an objective interpretation of Maryland and Baltimore law, the knife was perfectly legal,’ Professor Gray said. ‘But it may well have been reasonable to believe that possession of that knife was not legal.’ The charges of false imprisonment are especially surprising to some experts because they suggest that ordinary police officers can be charged with a crime merely for making a mistake during an arrest. ‘Their job is, if they have reasonable suspicion that someone is doing something wrong, then they can stop them,’ said John Francomano, a criminal defense lawyer who previously served in the Baltimore County state attorney’s office.
Francomano is right and is referring to the Supreme Court’s Terry decision, which made clear that officers, who must be judged by the standard of a reasonable police officer, not a reasonable citizen, may, with reasonable suspicion, briefly stop, detain and search people to determine if criminal activity is taking place. As I’ve also noted, police officers must not be held criminally liable for honest mistake any reasonable officer could make. The consequences of such precedent would be catastrophic for public safety.
Yet powerful evidence exists that many wrongful arrests in poor Baltimore neighborhoods are deliberate, not honest mistakes. In 2005, according to a class-action lawsuit against the department, police officers arrested 76,497 citizens without warrants — mostly for crimes like loitering, disorderly conduct or disturbing the peace. Prosecutors threw out more than 25,000 of those charges as legally unjustified.
This is misleading. Officers do not need warrants to make arrests for crimes committed in their presence, which would include the kinds of crimes the NYT mentions. “Legally unjustified” is clearly a social justice inspired opinion, not a fact of law. Prosecutors don’t prosecute such charges for a very wide variety of reasons having nothing to do with whether the arrest was legitimate. Most commonly, less serious charges are dropped as a part of a plea bargain gaining a guilty plea to a single felony. Absent specific information on each of these cases, we can’t know what happened or why. This gets even more convoluted with Baltimore Deputy DA Michael Schatzow’s response to the defense attorney’s motion to dismiss. It’s now Mosby’s position–as stated by Schatzow–that the knife isn’t important to the case. Via the Daily Caller:
But in a May 8 motion for dismissal and recusal, attorneys for the officers disputed Mosby’s knife claim. They argued that while Gray’s ‘spring-action’ knife was legal in Maryland, it was illegal in Baltimore. In his response, Schatzow disputed the notion that Mosby argued that the legality of Gray’s arrest hinges on the knife. Instead, he asserted that the statement of probable cause against the officers ‘makes clear that Mr. Gray was arrested well before the arresting officers knew he possessed a knife. ‘Mr. Gray was handcuffed at his surrendering location, moved a few feet away, and placed in a prone position with his arms handcuffed behind his back, all before the arresting officers found the knife,’ Schatzow stated.
Notice what has happened here. While not explicitly admitting that the knife was illegal under Baltimore city ordinance, Schatzow is implying that even if it was illegal, the officers still made a false arrest because they handcuffed and moved Gray a few feet before finding the knife. This makes the otherwise inexplicable language of the original PC statement about moving Gray a few feet more understandable. Bizarre, but understandable. The prosecution is apparently trying to build a case for false arrest, and using moving Gray a few feet as additional evidence of a physical arrest of Gray beyond being made to lie prone and being handcuffed.
Perhaps the prosecutors actually believe this, or perhaps they are cynically lying and misrepresenting the law in the hope they’ll find a judge sufficiently socially justice inclined or just plain stupid to buy it. In either case, I wouldn’t want to be a police officer in Baltimore from this day forward.
The Prosecutors have demonstrated they don’t understand the most basic issues of criminal law and procedure, or are willing to pretend they don’t to obtain political points at the expense of the police and the citizens of Baltimore. Under any rational examination of this case, at least given what is now known, the officers clearly had reasonable suspicion under the law to make a Terry stop. Given that, they had the authority to chase and capture Gray–he did not surrender; the prosecution keeps saying that to try to make it appear the officers unlawfully arrested a citizen that was cooperating with them–and to move him a few feet or fifty feet if convenience and safety demanded it, place him prone, handcuff him, and keep him there for a reasonable period of time.
What’s reasonable? The courts have ruled that something on the order of 10-15 minutes is permissible; long enough to do records/warrant checks and to determine if someone is up to criminal mischief. What Terry also allows is a search of Gray’s exterior clothing for weapons or other evidence of a crime. Obviously, a knife would be immediately recognizable as a knife even by feel, and the officers had the authority to remove and hold it for their own safety, even if Gray were handcuffed. Because of Baltimore and Maryland law making some kinds of knives illegal, they also had the authority to examine the knife to determine its legality. If they did not reasonably believe the knife to be illegal, and if there were no outstanding warrants, it is equally reasonable to believe the officers would have briefly questioned Gray and sent him on his way. In a city the size of Baltimore, this happens scores of times each day.
Schatzow is apparently trying to make believe Terry doesn’t exist. This is yet another bizarre bit of legal theater in this case. Expect more.
Baltimore prosecutors are seeking a gag order to prevent defense lawyers from speaking to the media about the Freddie Gray case. Rochelle Ritchie, a spokeswoman for State’s Attorney Marilyn J. Mosby, said on Friday the office was seeking such an order, but declined to provide details.
Now why would any ethical prosecutor seek to prevent defense lawyers from speaking about the case? Police files, after all, are public property.
On Friday, White’s attorney, Ivan Bates, released a joint statement from lawyers for the six officers urging Mosby to release evidence in the case before seeking a gag order. ‘Relative to any potential request for a gag order, if the State truly wants transparency and accountability, as they have claimed, then it is imperative that the public understand the facts and the law beyond the bald allegations publicized by Mrs. Mosby,’ they wrote. ‘These allegations have yet to be supported by a single piece of evidence, despite repeated requests. We have made one simple repeated request: show us the evidence.
This, gentle readers, is why Mosby, and surely her political masters, are desperate to muzzle the defense. If Mosby had any evidence, she would surely be trumpeting it. Since she obviously does not, she is desperate to keep the defense from informing the public not only of the evidence they discover, but most of all, from exposing Mosby’s lack of evidence.
PROSECUTORS EXPOSE MOSBY:
This is a particularly damning indictment of Mosby by former federal prosecutors Steven Levin and Jason Weinstein:
On March 14, 2006, a young woman who worked as a stripper in Durham, N.C., falsely claimed that three Duke lacrosse players had raped her at an off-campus party. Following a brief investigation, the district attorney, Michael Nifong, announced that the grand jury had indicted three players. After the public disclosure of evidence inconsistent with the district attorney’s narrative, the case fell apart and the players were vindicated. Mr. Nifong was later disbarred for unethical conduct, which the chairman of a lawyers disciplinary committee blamed on ‘political ambition,’ according to CNN. While it’s fortunate that costly trials and wrongful convictions were averted in that case, wouldn’t it have been better to have stopped the injustice before a grand jury had returned indictments not supported by the evidence? Baltimore State’s Attorney Marilyn Mosby has that opportunity in the case of the ‘Baltimore Six.
So she has, but is unlikely to take advantage of any opportunity to uphold the rule of law.
Announcing the charges against six police officers after a week of protests, Ms. Mosby appears to have been driven by the politics of the moment rather than the strength of the evidence, oddly proclaiming to the youth of the city that ‘our time is now.’ Ms. Mosby’s decision to subordinate her duty to do justice as a prosecutor to her role as a politician had two disastrous consequences.
“Our time is now?” Who is “our?” Our time to do what? Get Whitey? Get the Police regardless of color? Make an excuse for the federal government to take over Baltimore? Levin and Weinstein point out some of the consequences of Mosby’s haste: destroying the reputations of good police officers, and destroying public faith in the criminal justice system. They expose the knowledge and responsibility Mosby lacks:
Still, it is not too late to stop an injustice. The next step in this case is the grand jury investigation. Ms. Mosby has characterized early defense motions as ‘desperate efforts to hijack the grand jury process.’ Such rhetoric is disconcerting; challenging the evidentiary basis for charges is not ‘hijacking’ the process — it is part of the process. And the grand jury should be far more deliberate and measured than Ms. Mosby’s original decision to announce sweeping charges based on faulty evidence. The tragic irony of those early charges is that they reveal how little is known about what actually caused Mr. Gray’s fatal injuries. For instance, the charges of murder and manslaughter require the officers to have created a grave risk to Mr. Gray’s life through their conduct, and then consciously disregarded that risk. Yet, the statement of probable cause lacks facts to support such charges.
Anyone even remotely aware of the law, reading that PC statement, would understand there is no probable cause to support Mosby’s hasty charges. Levin and Weinstein continue:
While every death is a tragedy, not every death is a crime. Ms. Mosby’s decision not to seek an indictment for some or all of the officers — based solely on the evidence — would help repair the damage from her rush to charge everyone with something. First, the officers, at least two of whom appear to have made a lawful arrest of a man with an illegal knife, can start to rebuild their reputations and careers. Second, police officers can get back to investigating crime without fear of incarceration if they make an arrest based on good faith with which a prosecutor later disagrees. Third, Ms. Mosby can take a step toward restoring integrity to the criminal justice system that was lost when she charged a case without first confirming that the evidence was consistent with her narrative. After all, no one deserves to be ‘Nifonged.
For a prosecutor to be compared to disgraced Durham prosecutor Mike Nifong by eminent attorneys is a very serious matter indeed.
Remember above all that this case is in the early stages of pre-trial maneuvering. While it is possible that a responsible judge might dismiss at least some of the charges, considering the political climate of Baltimore, that is unlikely.
We can expect this case to go to trial. Whether those trials will be in Baltimore is also an open question. There is an excellent case to be made that the officers cannot possibly get a fair trial in Baltimore, but again, politics may keep responsible rulings from being made.
The next article will, among other issues, address the new charges in more detail. Stay tuned.