Baltimore-OfficersOn November 1, jury selection began in the trial of the first officer to be tried in the Freddie Gray case, William Porter. Porter, who is black, knew Gray from previous contacts, and was present at several of the stops of the transport van the day of Gray’s arrest. Porter is charged with manslaughter, second-degree assault, misconduct in office and reckless endangerment, a “throw everything we can think of in the hope some of it will stick” prosecution strategy. His trial was originally scheduled to begin Oct. 13, but had to be postponed as the prosecution notified the court, that among other things, it planned to introduce DNA evidence.   

For example, attorneys for Porter filed a motion Sept. 16 asking for Mosby’s office to produce evidence from its own investigation into Gray’s death. The motion, per Williams’ instructions, took a more narrow approach than a previous request for information from Mosby’s office. On the same day, the state provided notice that it intended to introduce DNA evidence in the case.

Porter’s attorneys then filed a motion on Sept. 18 requesting more information about the DNA evidence the state intends to use.

The state has raised the issue of DNA evidence in the five other officers’ cases as well. State law says notice of DNA evidence being admitted into a case should be provided to opposing parties 45 days before any criminal proceedings. If it is not provided at least 30 days before those proceedings, according to the law, ‘the court may grant a continuance to permit such timely disclosures.

At issue as the trial opened is the continuing concern over a change of venue. Consider this from the same Baltimore Sun article:

Postponements in the cases also could affect city preparations. Interim Police Commissioner Kevin Davis has said he would like as much notice as possible as to when the trials will be held, so that his department can prepare. Two hearings in the case this month drew a few dozen protesters, and the Police Department canceled officer leave to have as many resources on hand as possible. The city spent $450,000 on police coverage for the two days of hearings.

Consider this from another Baltimore Sun article on the first day of jury selection: 

Defense attorneys have repeatedly asked Williams to move the trial out of the city, arguing that publicity surrounding the case and the prospect of additional city unrest could influence the jurors’ decision. Williams rejected those requests, saying the trial should be heard by Baltimore jurors, though he also left open the possibility that the case could be moved if an impartial jury couldn’t be found.

Protesters’ chants from the street could be heard inside the courtroom of the Clarence M. Mitchell Jr. Courthouse, along with the sound of a helicopter. Williams emphasized the importance of civic duty, calling jury duty ‘an honor’ critical for ‘our society to flourish.

And this:

The Baltimore Sun has previously reported that, according to a police review of Porter’s statement to detectives, Porter mentioned not being sure whether Gray was faking his injury. His attorneys have cited another portion of Porter’s statement, in which he said he recognized Gray ‘from the neighborhood,’ and that it was ‘always a big scene whenever you attempted to arrest Freddie Gray.

The Baltimore Sun has also recently published a story that has certainly given the defense additional reason to be concerned, if they weren’t previously aware of the information contained therein:

Judge Williams

Judge Barry G. Williams

Before he was the judge overseeing the Freddie Gray trials, Barry G. Williams investigated and prosecuted police misconduct cases across the country for the federal government. [skip]

Douglas Molloy, a former federal prosecutor in Florida…said Williams at that time was ‘basically on a tour of the eastern United States” assisting with police misconduct cases. [skip]

Williams declined to comment for this article. Administrative Judge W. Michel Pierson did not respond to questions about how he selected Williams to oversee the Gray case.

The article–by all means take the link and read it if you choose–presents a number of comments very favorable toward Williams, and then there is this:

Williams at the last minute joined a 2002 trial in the St. Louis area in which three Florissant police officers were charged with civil rights violations for allegedly beating a high school student. All were acquitted by a jury.

One of the defense attorneys in the case, C. John Pleban, said the case should never have been tried.

‘During the 41 years that I have practiced and the countless times that I have been involved with the Civil Rights Division, my experiences have not been pleasant,’ Pleban said. ‘I must also say that if I were representing the defendants in the Gray case, I would have some concerns about a judge who prosecuted alleged civil rights violations.

More on Judge Williams shortly.

One of the most disturbing aspects of this case is what appears to be the complete abandonment of the six charged officers by Baltimore Police Department brass. An October 17, 2015 Baltimore Sun story focused exclusively on BPD brass efforts to force seat belt use on officers regardless of circumstances. An excerpt: 

In the days immediately after his [Freddie Gray’s] death, the Police Department conducted another audit and found eight of nine detainees wearing seat belts. The officer who was driving the van with an unbuckled detainee was written up, documents show. The officer’s name was redacted by the Police Department.

‘These audits show improvements over the years with compliance to seat belt policies,’ Baltimore police spokesman T.J. Smith said Saturday. ‘It also shows the importance of these policies. While we strive for perfection, we recognize the need to continue with audits like these. Our goal is 100 percent all the time for prisoners and officers alike.

“Audit” means “mindless harassment of hard working police officers.”  As one might imagine, crime in Baltimore, particularly serious crime, continues to run riot. From Fox news: 

credit: foxnews.com

credit: foxnews.com

Baltimore has recorded its 300th homicide of the year.

Police Commissioner Kevin Davis said in a statement Saturday evening that it was a ‘sad homicide milestone.’ He said that ‘it’s important to pause and vow to continue our collective fight to find a better path forward.’

The 300th victim was a 27-year-old man who was stabbed multiple times Saturday and later died. It’s the first time since 1999 that the city has recorded 300 homicides. In 2014, the city saw 211 killings for the year. Baltimore crossed the 200 death mark in August.

Note this high-sounding rhetoric that utterly ignores the reality of the renewed violence in Baltimore:

This challenging moment shall pass if we reject blame and embrace the hope, dreams, and promise of a great American city. Baltimore will win again, 2015 will not define us, and the nation will once again see our City for the determination that has long defined us,’ Davis said.

The homicide rate in Baltimore began to skyrocket in May following a period of civil unrest after the death of Freddie Gray, a black man who died from injuries suffered in police custody. The city saw 42 homicides in that month. There was a brief dip in June, with 29 killings, however the number shot up again in July, when the city recorded 45 homicides. It was the single bloodiest month since 1972.

For related information on the Ferguson (Baltimore?) Effect, see this article. 

ANALYSIS:

The trial, which is expected to begin Wednesday, promises to be yet another bizarro trial with the prosecution relying on emotion, heated rhetoric and social justice narratives. The defense will argue reasonable doubt, the evidence–actually, the lack of evidence–and the law. In addition, police brass, and officers hoping to find favor with them, will zealously testify against the six charged officers, while the rank and file will wait nervously for a verdict.

Keep in mind that Porter’s role in this case was minimal. Only Lt. Rice, and Officer’s Nero and Miller were actually involved with Gray’s arrest. Porter’s involvement, according to the prosecution’s own probable cause statement–which was bizarrely copied virtually verbatim for each of the officers  (see Update 5, Probable Causeless)–consisted of his briefly speaking with Gray at one stop of the van, and assisting Gray to a seated position. He also saw Gray a short time later at another stop of the van, along with Sgt. White and Officer Goodson, but apparently did not touch Gray, or speak with him at that stop. When Porter saw Gray, even the prosecution’s PC statement does not suggest that Gray had suffered any significant injury. Porter had no reason to believe Gray was in imminent medical distress and significant reason to think him faking. Yet to the prosecution, Porter’s entirely benign conduct amounts to multiple felonies. There is no currently known additional evidence against Porter.

credit: baltimoresun.com

credit: baltimoresun.com

As I noted in Update 5, Prosecutor Marilyn Mosby’s entire case seems to hang on the idea that because Gray was not seatbelted in the transport van, each and every officer that so much as looked at Gray is thereby guilty of multiple felonies. There is no probable cause in the probable cause statements.

It’s hard to imagine why Judge Williams did not grant a change of venue in these cases, unless of course, he has an agenda and high hopes for predetermined verdicts. It is, as I’ve often argued in this case, difficult to imagine a more obvious, utterly lawful, argument for a change of venue. We have riots that cost billions, the very real threat–a virtual certainty–of additional riots, a city whose crime rate, as a direct result of the Gray case and resultant riots, has dramatically increased, absolutely unprecedented media saturation, locally and nationally, and the constant drumbeat in the media and elsewhere of the anti-police, social justice narrative, a narrative inherently hostile toward due process, equal justice for all, and a fair trial for the officers, who have already been convicted in the court of “the narrative.”

Consider this from The Washington Post: 

Shortly after the first trial in the death of Freddie Gray got underway Monday, a judge asked more than 70 potential jurors several questions: How many had not heard of the case? About the curfew that followed? The city’s settlement with Gray’s family?

As the judge scanned the room, not a single person spoke up. Few in Baltimore have been left untouched by the events that left the city ablaze after Gray’s arrest and death in April. Seven months later, the impact of the 25-year-old’s death was clear as jury selection began in the trial of William G. Porter, one of the six officers charged in the Gray case.

Chants from demonstrators — standing outside in the cold, light rain — filtered into the marbled courtroom: ‘We won’t stop until killer cops are in cellblocks.

Consider: the chants of protestors could be heard inside the courtroom as jury selection was underway! It sounds like a parody of a kangaroo court. It also sounds like a sure reversal of conviction upon appeal. What appeals court, hearing this alone, would not be disposed to reversal?

What juror in Baltimore, particularly any that did not live far from the inner city in gated, high security communities, would not be intimidated by the sure knowledge that an innocent verdict would put them and their families in the target zone of brutal harassment, and in danger of serious injury or death? Imagine a black juror, particularly any that lived in the neighborhoods seriously damaged by criminals and roiled by “Black Lives Matter”/social justice activists, during deliberations. They would know, even without any direct threats, that anything less than guilty verdicts on every count would make their lives a living hell, and plausibly end them.

Perhaps Judge Williams is a truly upright, righteous man. Perhaps he believes in his ability to, by force of personality and rigorous application of the law, ensure a fair trial, but any righteous man should understand that in this case, such a process, in Baltimore, is out of his hands. The benefit of the doubt must be given the defendant, not the prosecution. Even though Judge Williams has suggested he could authorize a change of venue at any time, it’s nearly impossible to imagine that he would reverse himself, particularly after several days of voir dire, even if the case for change of venue were even more obvious than it already is, which again, is hard indeed to imagine.

Consider this from the blog of former Baltimore Prosecutor Page Croyder (who I mentioned in Update 4):

Legally speaking, Judge Williams should have moved the trials out of Baltimore.  If ever there was a set of circumstances for changing venue, this was it.  Not because of the publicity but because of the riots that followed in the wake of Gray’s funeral, riots that specifically affected Baltimore city only.  Those riots were credited by many with the decision of Baltimore prosecutor Marilyn Mosby to hastily charge six police officers with criminal charges, including murder, despite the fact that nothing in her probable cause statement or the autopsy report supported murder.  If the top prosecutor, whose sole job it is to follow the facts and the evidence, was influenced by the unrest, wouldn’t the citizens of Baltimore be similarly influenced?

Had Judge Williams moved the case out of Baltimore, no appeals court would have reversed him.  If ever a case called for removal to another county, this was it.  The Maryland Rule for change of venue states that a case should be moved if there is ‘reasonable ground’ to believe that a defendant cannot receive a fair and impartial trial.  Of course there is reasonable ground to believe this considering the rioting, destruction and continuing protests. If this case does not qualify, then the rule has no meaning.  In a case in which riots erupted after police shot a fleeing suspect, a Florida appeals court had no hesitation in reversing a trial judge who, like Judge Williams, failed to move the case.  The court was seriously concerned about the jury’s ability to disregard the consequences of their verdict.

By deciding to keep the case in Baltimore, Judge Williams has created a substantial argument for reversal, something that trial judges try – or should try – to avoid for the sake of all parties.  He would have faced zero chance of reversal had he changed the trial location.

FINAL THOUGHTS:

Maryland law does not allow for cameras in courtrooms, so there will be no video or audio of the trial as there was in the George Zimmerman case. I’ll be able only to comment on local media reports, of which the Baltimore Sun’s have proved to be the most complete.

There remains no publically released evidence to prove a case against any of the officers. It is possible the prosecution has somehow found additional, significant evidence, but I suspect their case will consist primarily of obfuscation, misstatements of fact, character assassination, and three primary arguments: (1) the initial stop and arrest of Gray were somehow illegal, therefore everything that followed was illegal and maliciously criminal. And, (2) failing to seat belt Gray amounts to felonious criminal negligence, and (3) failing to call for medical help the instant Gray requested it is also evidence of criminal intent.

As I’ve previously written, considering what we know of the case, the stop and arrest were entirely reasonable and lawful, and the case law clearly indicates this. Even though the BPD instituted a seat belt police some 9 days before Gray’s arrest, no such policy can be used in every case, and no rational supervisor would ever think to apply it so inflexibly. It will be hard to argue that the mere failure to buckle a seatbelt is felonious when tens, perhaps hundreds of thousands of arrestees in Baltimore, and millions elsewhere in America have been transported without a seatbelt and suffered not so much as a scratch. Finally, Gray was a known “crash for cash” faker–something the prosecution sought to hide–and even if he were not, so many people fake injuries when arrested, any officer would have had reasonable cause to suspect Gray was faking.

Of course, this, and much more, may mean nothing in the courtrooms of Baltimore these days. The only way to know if the officers can get a fair trial is to acquit them. Of course, if that happens, Baltimore–and other cities–will erupt in flames, but that has no bearing on this case, does it?

Perhaps we should ask Judge Williams.

The SMM Freddie Gray Archive Is Here. 

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