Marilyn Mosby no longer quite so certain about getting "justice for Freddie Gray."

Marilyn Mosby no longer quite so certain about getting “justice for Freddie Gray.”

Since Judge Barry Williams declared a mistrial due to a hung jury in the case of Baltimore PD Officer William Porter, media sources have been scrambling to put as much makeup on this particular pig as possible. I’ll be writing more about that later this coming week, but for now, the decision was such an unmitigated disaster for the Prosecution, even The Baltimore Sun has been forced to report the whole truth:

Prosecutors might have created a problem for themselves this week when they said Officer William G. Porter had lied on the witness stand.

Porter, whose trial ended Wednesday in a mistrial, is one of six police officers charged in the death of Freddie Gray. Prosecutors chose to try him first because they want to call him to testify in the subsequent trials of two of his fellow officers.

But during closing statements this week in Porter’s trial, they asked jurors to ask themselves whether he could be trusted on the witness stand.

He has lied to you,’ said Chief Deputy State’s Attorney Michael Schatzow.

It must have been very painful for The Sun to print this:

Steven H. Levin, a former federal prosecutor, says that’s a problem.

‘For a prosecutor to call a witness who the prosecutor has publicly identified as a liar undermines the integrity of the criminal justice system,’ said Levin, now a defense attorney in Baltimore who has represented police officers in high-profile cases. ‘The optics are terrible, to say they want to use somebody that they’ve branded a liar in later trials to convict others.

Note, please, that at least according to media reports the closing arguments, including those of The Sun, Schatzow did not provide specific evidence to support the contention that Porter was lying. If he had, one may be reasonably certain The Sun and other media outlets would have been sure to faithfully print it.

Consider this from the invaluable Andrew Branca at Legal Insurrection:

Bottom line, however, even Solomon-Simmons has to acknowledge the catastrophe that this trial outcome is for Mosby. With three possible outcomes, Mosby managed to achieve the one that was by far the worst for her aspirations.

Best for her, of course, would have been a guilty verdict. In that event she would have claimed a clear win for “justice.”  As important for her next trials, she could have compelled Porter to testify in the trials of the other five officers, as he would no longer be under legal jeopardy and thus no longer could avail himself of his 5th Amendment right to not incriminate himself.

Even better with a guilty verdict, because Mosby would have influence over Porter’s prison sentence she would have an enormous stick with which to guide his testimony. Porter would understand implicitly that testimony facilitating Mosby’s later prosecutions would tend towards a lighter sentence and testimony frustrating those efforts would tend towards a heavier sentence.

Alas, a guilty verdict was not to be.

Significant too are the posts of former Baltimore prosecutor Page Croyder: 

Well, there’s incompetence now.  Homicides are through the roof and crime is rising, but instead of police and prosecutor response we citizens have to endure six additional trials – more if there are further mistrials – none of which belong in criminal court.  Why?  Because of a freak accident and the fact that police practice on the street does not blindly adhere to official policy.  What unbelievable folly from our prosecutor and newspaper.

A courageous prosecutor would have called it like it was from the beginning: a tragic accident, but no criminal conduct.  Newspaper editors doing their job would have called her to account for her haste in charging and the unfolding reality that she blew it.  Instead, in the very worst of prosecutorial and journalistic behavior, Marylyn Mosby and the editors of The Sun traded their objectivity and their duty to the public for political and/or ideological purposes.

Never have I felt more profoundly disgusted by my former profession, or by the once-great Sun, as I have these past seven months.

By all means, take the links are read Branca and Croyder’s articles in their entirety. Branca is always worth your time, and Croyder knows where many of the bodies are buried.

credit: hellobeautiful.com

credit: hellobeautiful.com

Marilyn Mosby now finds herself in a very bad position of her own making. Her deputies have crowed that they plan to use Porter as a material witness against his fellow officers, and encouraged talk of Porter rolling over on his fellows in return for immunity or leniency. Considering what I knew about the cases from the probable cause statements alone, and what I now know about the prosecution’s evidence, that’s not only laughable, it’s simply bizarre.

Bizarre?  Am I engaging in hyperbole?  Consider, first and foremost, the spectacle of putting on the witness stand a star witness the Prosecution has branded a liar.  Yeah.  That’ll work.

What possible vital evidence can Porter provide, even if he were available to do it? Absent some super, double-secret evidence not used in Porter’s trial, we know all Porter knows. Let’s review what the prosecution has (remember that its PC statements were identical; only the officer’s names were changed):

Seat Belts: That’s (belting prisoners) an internal BPD policy, not a law. While Maryland, and virtually very other state, does have a seatbelt law, that’s a misdemeanor at best, and certainly not the argument in this case.  Notice that neither Porter or any of the other officers were charged with a misdemeanor seatbelt violation.  The argument was that by not using a seatbelt, Porter was inevitably and foreseeably condemning Gray to serious injury or death, despite the fact that seat belts are very seldom used by BPD officers, and resultant injuries are equally rare. Deciding not to use seat belts is certainly not evidence of a felony, and the argument didn’t work so well in Porter’s case, the case the prosecution must have thought its best chance to convict any of the officers.

Police officers routinely violate the law as necessary to do their duties.  For example, during my police days, state law required head and taillights during dark hours.  However, I often turned them off, and we even had switches that allowed us to deactivate our brake lights.  We understood that if we got into an accident with our lights off, we might get a ticket or worse, but if you want to catch sneaky people who lurk by night, you have to be at least as sneaky.  I never hit anything, nor did any other officer I can recall.

Injury: The prosecution is stuck arguing that Gray was injured sometime between the 2nd and 4th stops. The real medical experts established that it must have happened between the 5th and 6th, therefore no one, not Porter, not Goodson, not White, no one, could have understood the seriousness of Gray’s condition until the 6th stop, because he did not have that condition until then.

The prosecution would surely want Porter to testify that he told Goodson that Gray would have to go to the hospital. Porter testified that he did just that, but not because he believed Gray needed immediate medical attention, merely because procedure would prevent Central Booking from taking him as long as he was faking injury without being certified a faker by medical professionals.

This is evidence of a crime?

Due Dilligence: The prosecution will argue that because Goodson didn’t take Gray to the hospital the minute Porter talked to him, he, with a depraved heart, killed Freddie Gray. Porter testified, and all the other evidence will show, that Goodson was doing more than due diligence, frequently stopping to check on Gray, not only because he was violently rocking the van, but because he wanted to be sure that Gray was faking. Why? Because if he wasn’t, Goodson would need to immediately take him to the hospital. Buying the Prosecution’s argument means jurors have to believe that making multiple stops on his own discretion means that Goodson was somehow trying to kill Gray.

But what about Sgt. White? Doesn’t the fact that she also checked on Gray in response to a citizen complaint also incriminate Goodson? Hardly. People often complain about how the police treat people they’re arresting, but in this case, even the Prosecution’s medical witnesses cemented the reality that Gray was not so much as bruised by the arresting officers. White’s stop accomplished nothing more than allowing her to check the box that she looked into the citizen complaint and, at the time, it was unfounded.

Even though Gray didn’t directly respond to her, she, and everyone else, could see he was breathing–remember: he didn’t sustain his neck injury until later–and had every reason to believe he was faking. Officers see it all the time. And Porter testified that he, Goodson and White agreed that Goodson would take Gray to the hospital to be checked out. Apparently did not order Goodson to take Gray immediately to the hospital.

Seconds after the officers realized Gray was in genuine medical distress, they immediately called for medical help and did their best to provide aide until it arrived.

This is a willful criminal conspiracy between at least three police officers to commit murder?

More Procedure: The prosecution will argue that they didn’t take Gray to the hospital right away, and they should have known that failing that would surely result in his death via spinal cord injury. Even Porter would testify that transport vans do not immediately take prisoners anywhere, unless there is a compelling reason to do it, and there are no more prisoners that need to be immediately picked up. There is nothing illegal, in direct violation of policy, or even unusual about not immediately racing to the hospital with an arrestee the officers reasonably believed was faking injury. It happens every day, all the time, and virtually no one is injured as a result.

This argument didn’t work with Porter, and there is no reason to imagine it would work any better with anyone else.

Final Thoughts:

What’s left? Seatbelts and not taking Gray to the hospital long before anyone could have known he sustained a serious injury is the sum of the prosecution’s case against every one of the officers.

While it’s possible I don’t know some tidbit the media failed to report, one can be reasonably certain they reported on anything that would be harmful to Porter and helpful to the Prosecution. There is nothing–nothing–to which Porter can testify that will provide a Perry Mason “aha!” moment in court. There is nothing currently known or reasonably imaginable he can say that will provide the last piece of an unquestionable puzzle that will convict Goodson or anyone else.

Why the prosecution ever believed that, and why they apparently continue to believe it, and why they think any of the officers might be willing to testify in exchange for immunity is utterly bizarre. Or it may simply be that belief in social justice is more quickly deadly than Mad Cow Disease, particularly to susceptible brains like those of the Baltimore Prosecutor’s Office.

More on Tuesday. I hope to see you here.

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