With a motions hearing scheduled for September 2, there has been considerable legal maneuvering. The Baltimore Sun reports:
Prosecutors in the case of the six police officers charged in the arrest and transport of Freddie Gray are asking a judge to quash subpoenas that compel State’s Attorney Marilyn J. Mosby and other prosecutors to appear as witnesses at the first court hearing in the case.
In a court filing, they call the subpoenas sought by defense attorney Catherine Flynn “improper” and say they are part of an ongoing attempt to ‘bury the prosecution in frivolous’ filings.
The subpoenas obtained by Flynn, who represents Officer Garrett E. Miller, require Mosby and other prosecutors and investigators to attend the Sept. 2 motions hearing as witnesses in the case.
That could cause key prosecutors to be sequestered from the proceedings. A subpoena was also sent to the state medical examiner who performed Gray’s autopsy.
This small number of subpoenas (eight) do not, obviously, threaten to bury anyone or anything, however, they represent serious tactical issues the prosecution very much wants to avoid. Among their current strategies is trying very hard to claim that any attempt by the defense to actually construct a defense is somehow a distraction.
In asking Circuit Court Judge Barry Williams to revoke the subpoenas, prosecutors expanded on their responses to past defense allegations, including a claim that prosecutors steered police away from looking into whether Gray had a history of ‘crash-for-cash’ schemes to injure himself in hope of collecting settlements.
Prosecutors said they ‘wanted to keep police focused on uncovering what happened to Mr. Gray inside the transportation van and not on what may have happened to Mr. Gray in some past incident,’ which they say requires no one to testify to explain.
‘One of the state’s legal obligations is to advocate for Mr. Gray as a victim and uncover how he was injured, not to stand blinded by the blue lights and conclude that he was to blame for his own fatal injuries because of some prior accusation of self-injury in police custody,’ prosecutors wrote.
This, in several paragraphs, is one of the main problems with this case. The primary obligation of the State is to ensure that justice is done, not to be Freddie Gray’s advocate. That’s for civil attorneys. The prosecution enforces the law for the benefit of all, not merely the victim of a given crime, and particularly not where that victim may not, in fact, be a victim. Doing justice requires not trying to obstruct the defense in preparing a competent case. That’s win-at-all-cost thinking and/or social justice thinking, which is why this remains very much a backward case.
It’s hard to imagine prior acts more relevant to a case–and more damaging to the prosecution–than Gray’s previous attempts to “crash-for-cash.” Remember that Janice Bledsoe, now an assistant prosecutor, actually represented Gray in the past, and was also the prosecutor that tried to throw investigators off the scent of those past scams. I suspect that there exist more than one. Low-rent criminals like Gray stick with what they know and what makes them money. Witnesses to and/or evidence of any such schemes would be more than enough to introduce reasonable doubt in the trials of any of the officers, which is obviously why the prosecution wants to avoid it at all costs.
This is, at this relatively late date, also very significant:
They also addressed the issue of the knife Gray was carrying when he was arrested. Police have said it was a switchblade, which is illegal under city law. Prosecutors said they inspected the knife and determined it was not a switchblade.
The sides have sparred over whether prosecutors wrongly looked to state law when determining if the knife was illegal.
Prosecutors said the “more relevant matters” were ‘Gray’s injuries and what the defendants did to prevent and care for those injuries.
The prosecution’s continual attempts to ignore or obfuscate this issue strongly suggests that they know they’re wrong. If the knife was, in fact, illegal in Baltimore, though not under state law, the officers were entirely justified in arresting Gray for possession of that knife. Regular readers will recall (the Freddie Gray case archive is available here) that the prosecution has, from the beginning, harped on the knife in an attempt to accuse the officers of making a false arrest.
They also addressed again a defense accusation that either prosecutors have failed to turn over evidence from their independent investigation, or that ‘there was no investigation.’
Prosecutors said the ‘mere fact that the State’s Attorney’s Office conducted an independent investigation of the events underlying these cases prior to charging them does not transform attorneys in that office into witnesses subject to being subpoenaed.’
They said such efforts are typical of every case and produce material that would unnecessarily overwhelm the discovery process of turning over evidence.
Prosecutors conducting investigations independent of the police, obviously run and actively investigated, at least in part, by prosecutors themselves is absolutely not “typical,” because ethical prosecutors know that such atypical actions turn them into witnesses rather than prosecutors. Notice that the prosecutors are claiming that their “typical” investigation has produced such a mountain of evidence that they are overwhelmed and can’t–or won’t–meet their burden of turning exculpatory evidence over to the defense. What a bizarre argument: prosecutors morphing into investigators is normal and common, but doing it makes it impossible for the prosecutor/investigators to do justice.
Circuit Court Judge Barry Williams did quash those subpoenas–eight of them–but explained essentially nothing. This is not, however, a real defeat for the Defense:
By quashing the subpoenas, Williams can consider the prosecutor-as-witness issue — and the best way to approach it — on his own, rather than allowing the question to land abruptly in his lap as the first subpoenaed prosecutor was called to the stand, said Amy Dillard, who teaches criminal law and criminal procedure at the University of Baltimore.
If the judge did not quash the subpoenas, then at the hearing, the conflict would be present,’ Dillard said. ‘If the defense attorneys are allowed to call those witnesses that they have subpoenaed, then at that very hearing the judge would have to decide whether there is a conflict or an appearance of conflict between the Baltimore State’s Attorney serving on a case in which she is also a witness.’
‘He would have been allowing the circumstances that could justify a recusal [of Prosecutor Marilyn Mosby] to actually happen in the hearing,’ she said.
Instead, Dillard said, Williams can ask the defense attorneys and prosecutors to lay out their arguments as to whether the prosecutors are witnesses during the hearing.
Dillard said she has seen judges come up with ‘work-arounds’ for prosecutors to disclose whatever information they may have as a witness to the defense while remaining on the case.
Such a “work-around” in this case seems unlikely. Despite the statements of the prosecution, their behavior is highly unusual, unethical, and indicative not of an attempt to do justice, but to do social justice instead. How a judge could allow that –if the rule of law holds–is hard to fathom.
David Jaros, another University of Baltimore law professor, said it is ‘not terribly surprising that the judge is resisting taking the state’s attorney on the stand,’ but that his rejection of the subpoenas does not prevent him from determining they are material witnesses at some later date, based on arguments made by the defense.
The defense will surely try to persuade the judge at the September 2 hearing. Based on information in the public domain, it seems likely they have sufficient evidence of prosecutorial misconduct and obfuscation to be persuasive.
There remain several other issues:
All of the officers except Goodson have requested that they be tried separately from the others. Mosby’s office is seeking to try the officers in two groups, with Goodson, White, Nero and Miller tried together in one group and Porter and Rice tried together in the other.
Why wouldn’t the officers want joint trials? Because it would be easy for a jury to become confused by all of the charges and evidence relating to multiple officers. It would also, on appeal, be difficult to separate evidence of irregularities or undue influence. In addition, it would be easy for a jury, finding at least one officer guilty on at least one count, to want to find the others guilty of something as well.
If the first officer to be separately tried was found not guilty, that might have an effect on every trial that followed, and would allow that officer, and every subsequently acquitted officer, to testify on behalf of the others not yet tried. Single trials would obviously offer the greatest chance for justice for all the defendants.
Politically speaking, without police scalps to hang in the public square, Mosby, Mayor Rawlings-Blake and other Baltimore politicians are in real trouble, as are the honest citizens of Baltimore when the inevitable riots come.
The prosecution wants joint trials for exactly the same reasons–and to save their political hides–with the exception of obtaining justice.
There is much speculation about whether the officers will appear at the motions hearing. The Baltimore Sun, sticking to its progressive leanings, is suggesting that they are more or less obligated to be present, but the fact is that defendants seldom, if ever, attend such hearings unless their testimony is absolutely necessary. In this case, it isn’t.
As the evil Emperor of Star Wars observed, all is proceeding as I have foreseen. This particular backwards case continues to rush headlong in reverse, probably to the same fate as the Emperor.