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credit: npr.org

credit: npr.org

Being a social justice warrior, particularly one that has plans to climb over the bodies of anyone necessary to attain higher office isn’t easy. Not only does one have to make deals with the Devil, it’s impossible to erase all evidence of one’s true nature. And so it seems to be the case with Baltimore prosecutor Marilyn Mosby. The Blaze has the story: 

Earlier this month, two controversial tweets were ‘favorited’ by a personal Twitter account belonging to Baltimore City State’s Attorney Marilyn Mosby. The first tweet referred to the officers charged in the death of Freddie Gray as ‘those 6 THUG cops’ and the other praised Mosby and claimed she ‘INFURIATES a certain kind of white person.

Yes. This particular white person writing this scruffy little blog tends to be a bit miffed by anyone that betrays their oath of office to defend and uphold the Constitution and the rule of law in favor of social justice, partisan advantage and personal aggrandizement.

I’m sure it will surprise no one to learn that poor Ms. Mosby’s twitter accounts were hacked. Who coulda thunk it?

mosbyfave2

Both Mosby’s official Twitter account and her personal account were hacked,’ the Baltimore City State’s Attorney’s Office reportedly told ‘The Kelly File’ on Wednesday. ‘We do not know how long it’s been going on, we are working with Twitter.

mosbyfave1

Imagine that: unknown hackers alter Ms. Mosby’s account to make her appear what she appears to be. What are the odds? What are the odds Twitter will ever report that her accounts actually were hacked, I mean.

A VISIT TO THE GRAND JURY:

As forecast in earlier articles in this series, Marilyn Mosby was able to get six ham sandwich indictments.  Local WFSB.com has the story: 

Maryland State Attorney Marilyn Mosby announced upgraded charges for the six people indicted in relation to the death of Freddie Gray.

‘As our investigation has continued, additional info has been discovered, and, as is often the case, additional charges can be added,’ Baltimore State Attorney Marilyn Mosby said during a press conference.

Mosby did not take questions after the announcement. The officers will be arraigned on July 2.

Notice Mosby is admitting that she has taken the case to a grand jury before the investigation is completed. Competent professionals do not lodge charges until they are certain they can prove each and every charge. This is normally not possible until the investigation is complete. In this case, it is highly unlikely that is possible in such a short time frame.

Baltimore-Officers

Caesar Goodson Jr., William Porter, Brian Rice, Edward Nero, Garret Miller and Alicia White have all been indicted. Their charges include:

  • Officer Caesar Goodson Jr.: second degree depraved heart murder, involuntary manslaughter, second degree negligent assault, manslaughter by vehicle and gross negligence, manslaughter by vehicle criminal negligence, misconduct in office for failure to perform a duty regarding safety of a prisoner, reckless endangerment

  • Officer William Porter: Involuntary manslaughter, second degree negligent assault, misconduct in office for failure to perform a duty regarding safety of a prisoner, reckless endangerment

  • Brian Rice: Involuntary manslaughter, second degree negligent assault, misconduct in office for failure to perform a duty regarding safety of a prisoner and an illegal arrest, reckless endangerment

  • Officer Edward Nero: Second degree intentional assault, misconduct in office for an illegal arrest, misconduct in office for failure to perform a duty regarding safety of a prisoner, reckless endangerment

  • Officer Garret Miller: Second degree intentional assault, misconduct in office for an illegal arrest, misconduct in office for failure to perform a duty regarding safety of a prisoner, reckless endangerment

  • Alicia White: Involuntary manslaughter, second degree negligent assault, misconduct in office for failure to perform a duty regarding safety of a prisoner, reckless endangerment

The primary differences between these new charges and the original charges is that Officer Miller and Lt. Rice are now charged with misconduct in office for making an illegal arrest. Mosby has apparently not given up on the idea that Gray’s knife was legal. From what is currently known, that charge is likely to blow up in her face in spectacular fashion.

In fact, this new list of charges looks very much like a civil attorney’s wish list of charges that would allow a juicy civil suit against the city and officers involved. Of course, police officers tend to live paycheck to paycheck, but the city’s insurance carrier–or even the city if it is self-insured–has deep pockets indeed. It would be interesting to know if Mosby or her deputies are coordinating with civil attorneys. It would surely be the social justice thing to do, but if it is actually happening, would be the kind of thing for which prosecutors are reasonably disbarred.

Another significant difference is the previous false imprisonment charges have been dropped, which likely indicates, as many legal observers suggested, that there were no grounds whatever to sustain them. The final difference is the charging of every officer, including Sgt. White who apparently never so much as touched Gray with a fingertip, with reckless endangerment. Charges of second degree assault against Officers Porter, Miller, Nero and Lt. Rice have also been dropped. Here is the applicable statute:

(a)  Prohibited.- A person may not recklessly:

(1) engage in conduct that creates a substantial risk of death or serious physical injury to another; or

(2) discharge a firearm from a motor vehicle in a manner that creates a substantial risk of death or serious physical injury to another.

(b)  Penalty.- A person who violates this section is guilty of the misdemeanor of reckless endangerment and on conviction is subject to imprisonment not exceeding 5 years or a fine not exceeding $5,000 or both.

There are several exceptions in the law, but none, considering what is currently known, appear to apply to this case. Obviously, only (1) applies to this case. Why this particular law?

It’s a catch-all. Mosby hopes to have this to fall back on if everything else fails. The problem is there is not the slightest evidence in the public domain that would fulfill the elements of this statute, or any of the others.

THE NON-EXISTANT(?) THEORY:

At some point, Mosby will have to reveal her theory of the case. She will have to be able to explain, and back up that explanation with convincing physical, medical and testimonial evidence, exactly how, when and where Freddie Gray sustained mortal injuries. Moreover, she will have to be able to prove that each of the officers engaged in specific conduct that created a substantial risk of death or serious physical injury to Freddie Gray. There must be direct linkage, not just possibilities. “What if,” and “maybe,” don’t cut it.

Normally, such conduct must consist of affirmative acts, specific things the officers–each of them–did that can be proved to have caused harm to Gray. In this case, Mosby will likely be reduced to arguing that things the officers didn’t do were the cause of harm. She’ll apparently have to go so far as to argue that because Sgt. White didn’t call for medical assistance at some specific point, or because she didn’t actually touch or do anything to Gray, she somehow caused harm.

In the real world, one must not be convicted of crimes simply because they did not act perfectly at any given moment. That someone failed to do the best and most perfect thing possible is evidence only that we are human beings, not that we are criminals. If the allegation is that Gray should have been given immediate emergency medical care the moment he so much as suggested he was having any distress, that’s a desperation move. Criminals, particularly experienced criminals like Gray, feign injury every day, and those officers surely would have seen just that kind of behavior on many occasions. In short, they will argue, and plausibly, that they had good reasons to believe Gray was faking. For example, one don’t complain they can’t breathe if they really can’t breathe. One doesn’t speak and ask for medical care if their spinal cord is severed. Arguing that the cause of harm was not seat belting Gray is likewise a troubled and likely ineffective ploy, as I’ve explained in previous articles (The SMM Freddie Gray archive is available here). 

What’s missing at the moment is who, what, where, when, why and how for each of the six officers for any and all of the charges. That was true as I laid it out in Update 5, and it is no less true for the new charges lodged against the officers. By this legal maneuver, Mosby avoided having some or all of the charges thrown out before the beginning of June. She will now have until the beginning of July to scramble to put together sufficient evidence to sustain any of the charges.

WHO OR WHAT IS MARILYN MOSBY?

credit: legalinsurrection

credit: legalinsurrection

David Zurawik of the Baltimore Sun sees Ms. Mosby as a towering figure. Some excerpts from his article: 

Baltimore City State’s Attorney Marilyn Mosby is either a ‘national black hero’ with a passion for justice or a self-aggrandizing opportunist shamefully playing politics in her handling of the Freddie Gray case. [skip]

And it has intensified to the point where media pundits are now watching and critiquing her every public move, whether standing onstage with Prince at a Baltimore concert or sitting down for an interview with the fashion and celebrity magazine Vogue.

The instant and polarizing nature of her celebrity on TV, in online news outlets and on social media is in part a product of her being at the center of a sensational case with national reverberations. But there’s more to it than that, analysts say: Her status also speaks to what she has come to represent symbolically to some and the deeper currents of race, gender and power driving the conversations about her.

‘Mosby entered the public conversation as a news figure very quickly, sort of coming out of nowhere,’ said Marc Lamont Hill, a CNN commentator and professor of African-American studies at Morehouse College. ‘But she immediately became a centerpiece of the conversation, not necessarily because of her actions, but what she represents to a broad range of people.’ [skip]

But she is also coming under intense fire from such media and legal heavyweights as Megyn Kelly, an attorney who now hosts one of TV’s most popular shows on Fox News, and former Harvard University professor Alan Dershowitz for seeking a gag order on the case and for the severity of the charges, respectively.

Following Kelly’s attack on Mosby this week, Andrew Napolitano, a former judge and now senior judicial analyst at Fox News, said, ‘I am now beginning to think that she may be just a two-bit political hack who happens to have gotten elected as a prosecutor.’

And it’s not just Fox News. She was criticized on the editorial page of The Sun for the appearance with Prince and the interview with Vogue.

As for me, I expect prosecutors to behave professionally, which means no Vogue interviews, no playing rock star on stage with Prince, no racially inflammatory comments and pandering to mobs, and no hastily lodged charges one cannot back up. The central problem here is that Mosby appears to be behaving as a black prosecutor rather than a prosecutor who happens to be black. The same concerns would apply to anyone whose was functioning as a social justice activist rather than an officer of the court sworn to uphold the rule of law.

By all means, read the entire article. It will provide a sense of what passes for balanced journalism at The Baltimore Sun.

ANOTHER VIEW:

To be fair to The Sun, consider this op-ed piece by former U.S. DOJ spokesman and current law professor at Ohio State, Mark R. Weaver:

The fact that State’s Attorney Mosby is now asking a judge to issue a gag order against defense lawyers in the Freddie Gray case is more than just troubling; it shows a misunderstanding of ethics rules on pre-trial publicity. These rules provide that when one side in a case (typically a prosecutor) has so completely exploited the charges in the press that the other side’s attorneys (here, those representing the officers) must be allowed to be even more aggressive with public statements than pre-trial publicity limitations would typically permit.

Weaver begins with the tale of a prosecutor who, behaving almost exactly like Mosby, was disciplined by the Maryland Court of Appeals. Weaver continues:

Ms. Mosby’s first misstep was to showboat, using rhetoric more suitable for a candidate seeking votes than an officer of the court seeking justice. From her over-caffeinated statements at her initial news conference to the other national news interviews she leapt into, her tone was remarkably strident. But her second, and more serious, misstep was to seek to silence defense attorneys who are still trying to unwind their clients’ prospects for a fair trial from the numerous prejudicial statements the prosecutor already made.

Had Ms. Mosby taken the time to read and reflect upon the opinion in the Gansler matter, it’s likely she would have taken a more thoughtful, even responsible, approach. After all, no attorney wants to face disciplinary charges that could lead to disbarment. It appears that the legacy of the Gansler ethics case went unheard in what someday may be called the Mosby ethics case.

Whether or not Marilyn Mosby will be disciplined along the lines of Mr. Gansler remains to be seen. But she already shares the most troubling common denominator of certified-unethical attorneys: the willingness to abuse media relations and the prosecutor’s authority just to brighten her political horizons.

By all means, read the entire piece.

FINAL THOUGHTS:

Barring some stunning revelations, the long process of pre-trial legal maneuvering is under way, which means I will add articles only as developments warrant. In the meantime, motions for a change of venue, the recusal of Mosby, and dismissal of charges, among others, will be argued.

For those readers leaning toward charging me with blind support of the police in this case, consider that I am working only with the information currently in the public domain. To date, that information suggests that Ms. Mosby is in over her head, has acted foolishly and hastily, requiring a rushed visit to a grand jury to alter charges that might have a better chance of sticking to at least some of the officers if only she can find some evidence that might support them. That this appears to be the case says all that really need be said about the status of the case at this point.

As the case progresses, we will see people like Mosby and other social justice cracktivists demand that the case be put before a jury so the people can know the truth. They will not care about the truth even as the words cross their lips. We do not charge people innocent of crimes in a sort of “charge ‘em all and let the courts sort ‘em out” rush to social justice. It’s wrong for police officers to make arrests based on that incompetent and abusive philosophy and no less wrong for prosecutors to file charges for the same reasons. Being charged with a felony is ruinous; the process is the punishment.

Are these officers innocent? I haven’t a clue. I don’t know them, nor do I know the reputation of the Baltimore PD well enough to make any judgments. Gray’s death is certainly unusual and suspicious, but that is not probable cause for any charge, let alone the ridiculously excessive charges lodged against these officers. Saying (in essence): “Freddie Gray died on a ride in a police vehicle, and these officers were somehow involved,” does not constitute evidence of any crime.

Knowing what I know at this point I am certain of this: I would never have referred the case for charges of any kind, and if a prosecutor were foolish enough to file charges, I would be asking them where they came up with the evidence I could not find.

I am particularly interested to know all of the medical ramifications of this situation. Did Gray, for example, have any congenital conditions that would make such an injury a foregone conclusion where normal people would sustain only bruises? Remember that some accounts claim Gray asked for an inhaler, which would indicate a chronic condition. Did he, in fact, have an inhaler and a chronic condition?   Was Gray drugged? What are the conclusions of the autopsy, and not only the official autopsy, but the autopsies that the defense will commission? That the state has released no medical information whatever does not bode well for their case.

Was Gray’s knife actually illegal–could the officers reasonably believe it illegal even if mistaken–under Baltimore city law, and has the defense had the opportunity to examine it?

Freddie Gray credit: abcnews

Freddie Gray
credit: abcnews

One final thought: thus far, most of the public has seen only a single, somewhat blurry photo of Freddie Gray. Is this because there are no sympathetic photos of Gray available? Is there no way to make him appear, Trayvon Martin-like, an attractive young man with a bright future? Surely the media would make that case if it could. That there have been no known attempts to do that would seem to suggest there is no possible way to spin whatever photos are available–if any at all–to make that case.

As is normal at this stage in criminal cases, we know far less than we will months hence, so I’ll continue to report on the facts as we know them, the law, and to analyze what should be happening in a professional investigation and prosecution. Thus far, there has been virtually no professionalism evident.

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