As trials for the officers will almost certainly take place in Baltimore, and as those dates come ever closer, I thought it useful to review what will likely be the prosecution, and to a lesser degree, defense, strategies in prosecuting the six officers. This article enters more into the realm of prediction than I usually prefer to tread, but because of the unusual, backward nature of this case, it may prove illuminating.
Keep in mind that we still lack concrete details of the investigation. Unlike the Trayvon Martin case, the charges were filed long before a competent investigation was ever completed. I suspect that a competent investigation has yet to be completed. Also unlike the Martin case, a complete and competent investigation was not presented to an unbiased prosecutor not under overwhelming social and political pressure. That prosecutor was able to objectively weigh all the evidence and declined to file charges. It was then that the social/political factors became involved and the governor and state attorney general appointed a corrupt prosecutor whose mandate was to produce a conviction regardless of the evidence. As in the Baltimore case, announcement of the charges against George Zimmerman was made at a press conference that amounted to a social justice pep rally.
In the Gray case, a hasty investigation, under the incompetent supervision of Marilyn Mosby, an entirely inexperienced politician who was a social justice activist long before ever hearing the name “Freddie Gray,” was begun. A disgraced ex-cop, various elements of the local sheriff’s office, and presumably, various employees of the prosecutor’s office, were the investigators. The agency primarily responsible for the investigation, the Baltimore Police Department, was frozen out.
The charging decisions were so hasty, arrest warrants were issued for two uninvolved, innocent citizens. The initial charges had to be quickly changed, and the Baltimore police were shocked that any charging decisions would be made based on an incomplete, unprofessional investigation of only about two weeks duration. However, since social justice outcomes were the goal from the moment the haphazard investigation began, that officers would be charged was never in question.
It is possible, but unlikely, that the prosecution has significant evidence not in the public realm, evidence that positively links one or more officers to criminal acts, real, personal actions that fulfill elements of the crimes charged. If so, that information would have been discovered sometime after the charging documents were filed.
As I noted in Update 5: Probable Causeless, the PC statements are identical, essentially copied, and entirely non-specific. They amount to little more than a very rough and non-precise plot summary of the social justice narrative of the incident. They do not present any evidence that fulfills the elements of any of the offenses. In short, there is no probable cause to arrest any of the officers. These pathetic, incompetent documents also speak most loudly because of what is not there: evidence linking individual officers to any direct harm to Gray, to say nothing of harm that caused, or that can be actually linked to, his death.
The very nature of Mosby’s “investigation” will pit the Sheriff’s Office personnel that were involved in the case against the Baltimore Police Department and the charged officers. Both agencies will be pitted against the prosecutors, some of which–including Mosby–are actually material witnesses because of their direct involvement in the investigation. Also damaging to the prosecution is the fact that they tried to keep officers from investigating Gray’s past attempts at “crash for cash” scams. If prosecutors have evidence that will be introduced in the trials, they will have to testify to their role in discovering, handling, and analyzing that evidence. A complete chain of custody must be established. Evidence can’t just appear out of thin air, even in a courtroom influenced by social justice rather than the rule of law.
THE PROSECUTION THEORY:
At the moment, the prosecution has far more deeply dug and shoddily concealed holes than evidence. Mosby will be relying on the local medical examiner’s report, which is more Sherlock Holmesian deduction than medical science, as I explained in Update 10: The Medical Examiner Plays Sherlock Holmes. Rather than sticking to medical findings, Assistant Examiner Carol H. Allen engaged in unrestrained speculation about what might have happened. Considering everyone involved in investigating the case was treading unfamiliar ground, this is hardly surprising. It appears that Allen and her staff actually tried to construct a time frame of events, which is the job of the police investigators involved in the case.
Allen engaged in reckless and unsupportable supposition far beyond the normal limits of the expertise of a medical examiner:
The medical examiner concluded that Gray’s most significant injury was to the lower left part of his head. Given the descriptions of his demeanor and positioning in the van, it most likely occurred between the second and fourth stops made by the van driver, and possibly before the third stop, according to the autopsy.
Notice the language: “Most likely.” “Possibly.” Translation: I don’t have a clue. A competent, honest ME would normally describe injuries, and say no more than that those injuries could have been caused by unspecified blunt trauma or another general cause, or if they recovered a weapon used to strike a victim, could say that the wounds found were or were not consistent with strikes by that weapon. They do not speculate on matters outside their field of expertise. What Allen does not say indicates clearly that she–and therefore, Mosby–has no idea how Gray was injured.
At best, Mosby will be able to establish that Gray’s injuries possibly occurred between “time A” and “time B,” but that’s about it. The ME, and perhaps a hired, expert witness, will speculate about how the injury or injuries might have occurred, but they’ll be forced to admit they really don’t know.
I fully expect the defense, perhaps in each of the six cases, to hire Dr. Vincent DiMaio, the pathologist that actually wrote the book on forensic pathology, in fact, he wrote many of them, as I noted in Update 33 of the Martin Case. A scientist and witness of his caliber would absolutely obliterate the ME’s report and unbridled, unprofessional speculation. Update 10 of the Gray case actually contains his initial take on the Gray case. His testimony would be an absolute disaster for the prosecution.
Mosby will also have to explain away or try to ignore the opiates and THC in Gray’s blood. We don’t know precisely the levels, but the higher, the harder dealing with it will be for Mosby. This factor alone will be sufficient to introduce deadly reasonable doubt.
Ultimately, Freddie Gray was alone, restrained and locked in a police transport van. None of the officers laid a hand on him during that transport other than to reposition him in response to their observations of his condition. There is certainly no known evidence that any of them struck or purposefully injured him, and Sgt. White apparently never so much as touched him for any reason. His injuries and how they occurred were unseen, and unheard, though the clownish criminal Donta Allen, who rode in another section of the van for a time, did hear Gray trying to injure himself, probably trying to set up a scam for fake injuries. This too will introduce reasonable doubt.
This is why the PC statements did not–could not–actually link any of the officers with direct injury to Gray. None of them were in a position to cause it.
THE TERRY STOP:
The officers were present in the neighborhood where they first saw and briefly pursued Freddie Gray because Marilyn Mosby told the BPD to put them there to look for drug dealers and drug transactions. Gray was, in fact, a drug dealer, a drug dealer with some level of his products in his bloodstream. Gray was in an area and on a corner known for its drug dealing activity. When he recognized the officers, they have every lawful reason under Terry v. Ohio to chase, briefly detain him–which includes handcuffing if necessary to keep him from escaping and to secure their safety–to determine if he was involved in criminal activity. When they found a knife they reasonably believed to be in violation of Baltimore ordinance, they had more than sufficient probable cause to arrest him. Even if that knife were later judged, for whatever reason, to have been legal, that would not remove their probable cause for arrest at the time.
Mosby has telegraphed her case by continuing to harp on the stop, going so far as to suggest that because the officers handcuffed Gray and moved him a few feet from the place where they captured him–Mosby claims Gray “surrendered,” which is false and nonsense–Terry doesn’t apply and the officers therefore falsely arrested Gray. Officers operating under Terry may move people any reasonable distance necessary for safety reasons, and are allowed to search them–within reasonable limits (no strip searches, etc.) for weapons.
Mosby initially tried to claim that the knife Gray was carrying was legal under Maryland law, but has never addressed its legality under Baltimore ordinance, and has, months ago, stopped speaking of the knife, which suggests someone has finally educated her about Terry, and Baltimore versus Maryland law regarding the knife. This does not mean Mosby and her deputies will not try to mislead juries about Terry and the knife, but it is suggestive even she knows she’s wrong. More reasonable doubt.
There continues to be every indication that this is the heart of Mosby’s case, the single hook upon which she hopes to hang convictions. Mention of the seatbelt appeared in nearly every paragraph of the probable cause statements, and continues to be a major element of the social justice narrative. It’s a red herring.
I addressed this issue in detail in Update 4: Belt Me. Briefly, some police agencies have seatbelt policies for prisoners, others do not. Even those that do understand such policies to be statements of intent: general guidelines. They cannot be hard and fast rules that must be applied in every case regardless of reality.
Apparently the BPD enacted such a rule only nine days prior to Gray’s arrest. There is no evidence that any of the officers were aware of it, and even if they were, they retained the discretion to use, or not use, seatbelts with Gray and any other prisoner based on the conditions of each arrest and transport. It can easily be more dangerous for a prisoner, and/or an officer, to be belted. Trying to belt an aggressive and violent prisoner gives them the opportunity to seriously injure an officer. Even if an officer carefully belts a prisoner, it is the rare and very non-limber person who cannot open a seat belt even while handcuffed.
Even if Mosby can find a BPD administrator politically correct and stupid enough to testify that the officers had to belt Gray regardless of the circumstances, it will take little effort to obliterate their credibility. Hundreds of thousands of people were transported by BPD officers for decades without the slightest injury. How then can Mosby make a case that because Gray was not belted, the officers are directly responsible for his death? This is particularly true of Sgt. White, who apparently never so much as touched him, and even Officer Porter, whose only action was to help Gray from the floor to a bench.
Failing to belt a given prisoner, particularly when there are good reasons to omit it, is not only not illegal, it’s proper police procedure. Mosby’s obvious reliance on this issue is a direct indicator of her lack of experience and her desperation.
Mosby will also claim that Gray asked for an inhaler, that he claimed he couldn’t breathe, and the officers denied him. She will also claim that Gray repeatedly asked for other medical help, but again, the officers ignored him, which caused his death.
The inhaler issue is a non-starter. Trying to use an inhaler when arrested is an ancient criminal trick to try to confuse drug analysis results. Gray knew he had been using drugs. Even if he had a prescription for an inhaler, if he did not have it with him, no officer could possibly produce a generic inhaler, and every agency has rules against giving prisoners any drug that is not clearly prescribed for them.
If Gray actually could not breath, he would not be able to speak. Obviously, there was no one present–other than the officers–that can testify to anything Gray did or didn’t say. Equally obviously, the officers did not believe Gray was actually in medical distress. Police officers call ambulances for prisoners every day. There is no reason to believe, nor will Mosby be able to prove, that six separate officers conspired to kill Gray by denying him medical care.
From what we currently know, the prosecution’s case will look something like this:
Three officers, for no reason at all, ran at Freddie Gray, who meekly surrendered to them. They handcuffed him, moved him several feet, put him on the ground, falsely arrested him for a legal knife, and put him in a police van, but did not immediately take him to jail.
Poor Freddie Gray repeatedly asked for an inhaler, told the evil officers he couldn’t breath, and they did nothing to help him. They will represent the officers several stops and assessments of Gray as somehow negligent and evil rather than officers trying to be certain that Gray was faking as they suspected. They will also claim that poor Gray was begging for highly specific medical treatment, but was ignored.
Because the officers did not belt Gray, in violation of a BPD policy, Gray somehow received a neck injury at some point during his time in the van and subsequently died, therefore, all the officers are guilty of everything the prosecution could think to throw at them up to and including murder.
There appears to be nothing else. No direct evidence, just supposition.
For competent prosecutors, there would have been no charges, because as the probable cause statements reveal, the prosecution cannot prove beyond a reasonable doubt–any doubt, actually–that Gray’s death wasn’t an accident or self-caused. Mosby has no direct evidence, nothing to link any of the officers to specific actions, which at a specific time and place and in a specific manner fulfilled the elements of specific crimes, constituting violations of those laws.
Unless Mosby has been concealing substantial direct evidence of guilt, it’s likely that even in courts heavily influenced by social justice, where judges are on the side of the prosecution as was the case in the George Zimmerman trial, the officers will be acquitted. The first trial will set the atmosphere for the rest.
Even for Officer Goodson, the van driver, there is apparently no evidence of bad or even negligent driving calculated to cause injury to Gray. If there was video of such bad driving, Mosby is not the sort of personality that could resist disseminating it.
Regardless of the outcomes, Baltimore is in real trouble, and so are the officers. They will spend the rest of their lives paying their legal bills, but police salaries will not provide the funds. Their careers in the BPD are over, as are their lives in Baltimore. They will have to leave, hide, try to start over. It’s unlikely any law enforcement agency will hire them, rightly understanding that they’ll ever after be the targets of racist murderers hoping to earn street cred. I don’t like to think about the effects on their families.
And should any of them be unlucky enough to be convicted, that will amount to a death sentence, which is what any time in prison would mean. But hey, that’s social justice.
Oh yes, and then there is the Obama Department of Justice, which, in its final months in office, would be highly likely to pursue the officers even without a shred of evidence.
There is no way that this debacle has a happy ending for anyone. That’s social justice too.