Fishing? FISHING?!

That’s what Baltimore prosecutor Marilyn Mosby called motions by the lawyers defending the six BPD officers charged in the death of Freddie Gray: a “fishing expedition.” The Baltimore Sun explains: 

Baltimore prosecutors say a request for police training manuals by defense attorneys in the Freddie Gray case is a ‘fishing expedition’ that would be ‘oppressive’ to meet.

The office of State’s Attorney Marilyn J. Mosby also called a separate defense subpoena request for the ‘complete file’ on the investigation into Gray’s death — including his autopsy — an ‘end run’ around court rules governing ‘the scope and timing of permissible discovery.’ [skip]

Discovery in the case is due June 26, and Mosby’s office said it would provide all documents governed under discovery rules, including the autopsy, by then. But her office said it should not have to provide the documents sooner, as the defense is requesting.



It is difficult for some to understand how utterly bizarre and outrageous Mosby’s conduct is here. In America, we have the presumption of innocence until the state proves a defendant guilty. In order for our system to work, there can be no surprises at trial. The state must not only specifically outline the basis for each and every charge–probable cause–it must give the defense–with few exceptions–all of the evidence it plans to use against a defendant. This is known as discovery. The prosecution may not call a witness unknown to the defense in the middle of a trial. The prosecution may not introduce evidence of which the defense is unaware. This is America. People are not convicted in secret proceedings using secret evidence.

As I’ve noted many times in this case, ethical prosecutors have only one standard in making charging decisions: can I prove each an every charge beyond a reasonable doubt? Sometimes, it’s a judgment call, but because of the seriousness of the crime, they’ll go ahead anyway. However, most prosecutors will not file charges unless they believe they can obtain a conviction.

This being the case, ethical prosecutors are more than glad to provide the defense with each and every piece of evidence they have, because that evidence will convince the defense they have no chance. It will often cause the defense to beg a plea bargain, saving the state the time and expense of a trial. Ethical prosecutors do not force the defense to make motions, they don’t force judges to order them to provide discovery, they willingly provide it, not only because it is to their benefit to do it, but because it is the law, because it’s the right thing to do.

It has been my experience that when a prosecutor stonewalls discovery, the primary reason is they do not have sufficient evidence–sometimes any evidence–necessary for a conviction. Secondarily, such lack of evidence will reflect very poorly on them, potentially causing serious lack of political capital, perhaps the loss of their position, even disbarment and prison, as in the case of Mike Nifong of Duke Lacrosse infamy.

In the subpoena requests, Miller’s attorneys say materials used by the state’s attorney’s office and the Police Department to train young officers at the city’s police academy will be ‘relevant and necessary to the defense in this case.’

But prosecutors said the requests for police training materials, as written, would force the state to produce ‘all training, on any conceivable subject (including wiretaps, ballistics, preparing search and seizure warrants, to name a few).

As in the George Zimmerman case, we are seeing another backward case, where the defense is arguing the evidence and the law, and the prosecution is obfuscating, stonewalling, and attacking the police. In any case of this type, training, and policy and procedure, manuals are an essential part of the defense. This is not at all unusual. Mosby’s claim that the defense is demanding every bit of training information, such as that relating to wiretaps, search warrants, etc., is nonsense and direct evidence of the worst kind of bad will. The defense would have no interest whatever in training or policy that does not have a direct bearing on the issues at hand.

What’s fascinating and richly ironic is that Mosby sees the police as enemies, yet she must rely upon them to make her case. Again, as in the Zimmerman case, Mosby will be essentially treating the police as hostile witnesses, a bizarre state of affairs. On the other hand, the defense will benefit greatly from police testimony.

As I wrote in Update 5: Probable Causeless the initial probable case statements, written by a high-ranking member of the local Sheriff’s Department, were, with the exception of the names of each of the officers, identical and relied almost entirely on the alleged failure of the officers to use a seatbelt on Gray. The mere fact that an administrator of an agency that had nothing to do with the investigation filed all PC statements is troubling. Administrators normally have nothing to do with investigations, therefore, they lack the direct knowledge necessary to affirm, under oath, that what they are saying is true and accurate. Such statements are normally done by the investigating officers/detectives, people with direct knowledge of the case, people who can honestly swear they are telling the truth, the whole truth, and nothing but the truth.

Also enormously troubling about those statements is that they are identical. Despite the variety of charges against the officers, the single statement does not provide actual assertions of proof of the elements of the crimes, no evidence to suggest that the defendants did affirmative acts that fulfill the elements of the crimes. During my police days, if I turned in six identical PC statements to a prosecutor–actually, they would never have gotten that far. My immediate supervisor would have torn enormous chunks out of my rear end, and would have seriously considering sending me back to patrol. But if, somehow, such statements made it to a prosecutor, they would have absolutely declined to file charges and told me that absent competent and complete PC statements, there would be no charges, and my credibility would have been shot.

Now, after dumping and changing the original charges by means of grand jury indictments, the prosecution has filed a bill of particulars–essentially a PC statement– regarding the new charges. Again, the Baltimore Sun has the story: 

Notice Gray's apparently uninjured neck

Notice Gray’s apparently uninjured neck

In the most detailed explanation of the charges against six police officers in the arrest and death of Freddie Gray yet filed in court, prosecutors say the officers failed to belt the 25-year-old Baltimore man into the back of a police van, and lacked probable cause to arrest him in the first place.

But they provide no new information on the most serious charges against the officers — including second-degree depraved-heart murder and manslaughter — in the bills of particulars filed this week in Circuit Court.

The office of State’s Attorney Marilyn J. Mosby filed the documents in response to motions by the officers’ defense attorneys requesting more information on her reasons for filing the charges.

As I’ve noted in previous updates, the officers had more than sufficient reasonable suspicion to stop Gray, and finding a knife that was apparently illegal under Baltimore city ordinance, more than sufficient probable cause to arrest him. Mosby continues to proceed as though Terry v. Ohio–the case governing stop and frisk–never existed, which indicates a complete lack of understanding of the basics of criminal law, or absolute disrespect for the rule of law. Her refusal to allow the defense to examine the knife does not suggest confidence in her repeated argument that the knife was entirely legal.

Some observers expected more information in the bills of particulars.

Kurt Nachtman, a defense attorney and former prosecutor in the Baltimore State’s Attorney’s office, said he found it surprising the state didn’t lay out more clearly what it believes each officer did.

‘I don’t think for a case as serious as this that you should bring actual allegations that are so tenuous,’ he said. ‘That’s a huge stretch of the law.’

But David Jaros, a University of Baltimore School of Law professor and former defense attorney, said the filing was not unusual.

Early in a case, he said, ‘the defense tries to learn as much as possible about the state’s case, and the state does it’s best to tell them as little as possible.’

‘This is the beginning of legal wrangling,’ he said. ‘The defense attorneys are going to go in and say, ‘They haven’t given us enough.’ The state will say, ‘We’ve given them enough.’ And maybe the judge will say, ‘Give them more,’ but it’s part of a process.

Nachtman is correct; Jaros is not. To whatever degree “legal wrangling” takes place, it occurs primarily because prosecutors are behaving unethically. If the defense must file motions to get a judge to order a prosecutor to obey the law, that may, by some, be defined as “legal wrangling,” but it is, in fact, an attempt by the prosecution to deny a defendant his rights, either due to simply animosity, or for political purposes.  Indeed, defense attorneys sometimes file ridiculous motions, but that has not, to date, been the case here.

Jaros said the state might not reveal its arguments until the trial.

In explaining second-degree assault, reckless endangerment and misconduct charges against Goodson, White, Rice and Porter, prosecutors cited the seatbelt.

They said each officer ‘caused physical harm’ to Gray by failing to secure him in the back of the van, and that the van then acted as an ‘instrumentality’ of each of them and ‘made harmful contact’ with Gray.

Prosecutors also referred to the seatbelt in explaining charges of misconduct in office and reckless endangerment against Nero and Miller. In explaining second-degree assault and misconduct charges against Nero and Miller, they said the officers lacked probable cause to arrest Gray.

Jaros is again engaging in what legal laymen might consider “lying.” It is true that the prosecution does not have to reveal their specific rhetorical strategy until the trial. Prosecutors may continue to refine their legal strategy even as a trial is underway, but they may not conceal evidence, which includes the evidence they will use to prove each element of each charge, from the defense.

Again, it’s clear that the prosecution’s entire case hangs on the seatbelt issue. As I also outlined in previous updates, that’s a very slim thread. Even though a policy change put into effect only nine days prior to Gray’s death required seatbelts, such policies do not have the force of law, and are matters of guidance and intent. Any rational administrator or supervisor understands that it is not possible, nor wise, to use seatbelts with arrestees all the time.

For example, in my last patrol assignment, there was a rule requiring the wearing of hats. This was a difficult rule for me to follow, in large part because I have a very large head–the largest on the entire force–and my hat was therefore huge, and in effect, an airfoil. The slightest breeze lofted the damned thing from my head into the nearest mud puddle. The city where I worked virtually always had wind, so it was very hard for me to wear the hat. Particularly when I was sneaking up on bad guys in the dark, wearing the hat was a very bad idea.  Generally, supervisors and administrators–to lesser degree–understood reality and didn’t bother me about it, even though there was a rule on the books.

It is not enough that the officers chose not to seatbelt Gray. That is not an affirmative act, particularly for those officers who had no direct role in Gray’s arrest. The prosecution is going to have to be able to prove a direct link between what the officers actually did and specific harm to Gray. There is, thus far, no such link, nor is it likely any such link can be proved. Consider again what the prosecution is alleging:

In explaining second-degree assault, reckless endangerment and misconduct charges against Goodson, White, Rice and Porter, prosecutors cited the seatbelt.

They said each officer ‘caused physical harm’ to Gray by failing to secure him in the back of the van, and that the van then acted as an ‘instrumentality’ of each of them and ‘made harmful contact’ with Gray.

The non-specificity and vagueness of these assertions, actually written in a legal document, is stunning. Set aside the fact that White wasn’t actually present when Gray was secured in the vehicle, this statement does not, in any way, explain how each officer harmed Gray. Not using a seatbelt is a judgment call, not grounds for felonies. It is an entirely reasonable decision. Millions of people have been transported in police vehicles without seatbelts without sustaining the slightest injury. How then can the decision not to use a seatbelt be evidence of malicious intent? How can it be an affirmative act that causes physical harm, particularly when at least one other prisoner was traveling in the same vehicle with Gray for at least some of the time, and suffered no injuries? Did the vehicle somehow choose to harm Gray and not the other prisoner?

Failing to use a seatbelt transforms the police vehicle into an “instrumentality” of each of the officers, that somehow “made harmful contact” with Gray? How, exactly, was that harm done? What injuries resulted? When exactly? Which injury was directly attributable to each officer? This is not proof; it’s desperation on the part of Mosby.



Final Thoughts:

The current deadline for full discovery is the 26th of the month. What reason is there, apart from matters of copying, or something similar–which is not what Mosby is arguing–to keep discovery from the defense? How does that serve justice? Will Mosby gladly turn it all over at 0800 on the 26th? That’s highly unlikely.

It must be remembered that under the rules of social justice, the process is the punishment.  The six officers are being brutalized, financially, personally, professionally, and in every other way imaginable.  Credible death threats have, by now, become routine for them.  Even if found not guilty, their careers as Baltimore officers are over.  Their families will be harmed, their destinies changed, for the rest of their lives.  Like George Zimmerman, they will spend the rest of their lives looking over their shoulders.  If convicted, regardless of their sentences, they’ll receive a death sentence, for nothing raises a convict’s credibility more than killing a cop.  That’s what Mosby means by justice for Freddie Gray, though she’s probably not bright enough to realize it.

Expect, on the 26th or before, Mosby to refuse to turn over part, or even all, of the discovery. Expect her to stonewall and withhold evidence throughout the entire process. Expect that whatever discovery the defense is able to get will reveal only that Mosby has no case.  Expect that the defense will have more than sufficient grounds for dismissal of most, if not all, of the charges long before the cases are scheduled for trial. Expect local judges to deny any change of venue request, and expect them to force the case to trial for entirely political reasons.

Expect Mosby and her underlings to lie, repeatedly, to the public, the defense, and even to the courts.  This will be made necessary by any attempt to maintain the social justice narrative in the face of a complete lack of evidence necessary to prevail under the rule of law.  So it was in the George Zimmerman case, the Michael Brown case, and so it will be here.

Expect every future revelation to make Mosby and her sycophants look worse and worse.

The SMM Freddie Gray case archive is available here.