Before getting into the primary topic of this article, let’s take a moment to discuss a topic that has drawn considerable reader interest: the right to a speedy trial and what effect that might have on the officers involved in the Freddie Gray case, particularly officers William Porter and Caesar Goodson. The Sixth Amendment states:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense [emphasis mine].
As regular readers know, the retrial of Officer Porter has been put off until sometime in the summer of 2016, which the initial trial of Officer Goodson has now been postponed due to the Maryland Court of Special Appeal’s temporary stay of Judge Barry Williams’ order compelling Porter to testify in the trial of Goodson. The Prosecution has also said that Porter’s testimony is vital in the matter of Sgt. Alicia White and that without that testimony, they essentially have no case against Goodson or White. Regular readers know they have no legitimate case against any of the officers.
A number of readers have been concerned about the speedy trial provision. Keep in mind that the Constitution is silent on precisely what a “speedy” trial is. Normally, trials are held within a matter of months of arrest, often in a shorter time for unremarkable misdemeanor offenses. This provision also has a salutary effect on police and prosecutorial practices in that prosecutors generally do not file charges unless and until the police investigation is complete and everything is known about the case, allowing the prosecutors to make a completely informed decision. It’s always possible that new information might come up prior to a scheduled trial, or even during it, but normally, prosecutors won’t touch a case until the investigation is as complete as possible.
Do you see the problem in the Gray case? Prosecutor Marilyn Mosby, for political, social justice, reasons, rushed to file charges she could not possibly sustain in mere weeks, long before the investigation was complete. The foolishness of that decision was evident long before the Prosecution’s latest legal debacle, which has put them in the position of begging the appeals court to violate fundamental freedoms because without such violation, their cases will fall apart. This sort of bizarre spectacle is why competent prosecutors don’t file cases that hang on testimony compelled against the Constitution.
Continuances–delays in trial dates–are normally requested by the defense. Judges normally grant a first continuance as a matter of professional courtesy, and defense lawyers generally don’t push matters; they don’t ask for continuances unless they truly need them. However, repeated requests for continuances are generally frowned upon and certainly resisted by the prosecution, particularly if they think the defense is trying to string things out for no good reason.
Why would the defense want to do that? That’s usually to the advantage of the defense. Witnesses move away, forget important facts, even die. Public interest in a case tends to lessen with time.
With some exceptions, there tend to be no hard and fast rules/laws on what a speedy trial is, and even then, such rules/laws don’t absolutely prevent continuances. The speedy trial provision is virtually never a “get out to trial free” card. A judge generally will not dismiss charges for foot dragging unless it was the fault of the prosecution, and there is significant evidence of bad will and/or abuse of the system. After all, it will be the defense making the argument for a dismissal.
I suppose the primary thing to remember is that courts tend to be very flexible on this matter, and there is no absolute rule that if a specific number of days passes, all charges must be dismissed with prejudice (dismissed and ineligible to be re-filed in the future). This provision of the Sixth Amendment will be unlikely to be a factor in the Gray case.
The Baltimore Sun reports on the latest maneuverings:
Maryland’s second highest court has intervened and postponed the trial of Baltimore Police Officer Caesar R. Goodson Jr., just as the case was set to get underway Monday with jury selection.
The last minute order from the Court of Special Appeals followed a series of legal filings last week in which Officer William Porter sought to block a Circuit Court judge’s order forcing him to testify at Goodson’s trial in the death of Freddie Gray. Porter is also charged in Gray’s death, and his trial in December ended in a mistrial with jurors deadlocked. His next trial is not slated to begin until June.
Circuit Judge Barry G. Williams — who is presiding over the trials of all six officers charged in Gray’s arrest and death — briefly took the bench Monday morning to note the appeals court stay and place Goodson’s trial in recess.
Williams said the prosecution had also asked for a continuance, but that the request was ‘moot’ given the appeals court stay. He also said Goodson had objected to a continuance.
I suspect that if the Court of Appeals issues a permanent injunction enjoining Judge Williams from forcing Porter’s testimony, we’ll see every trial in this case postponed and rescheduled. We’ll also see much scrambling by the Prosecution to try to come up with some way to salvage their already sinking ship.
The move to compel a defendant to testify under immunity at a co-defendant’s trial is unprecedented in Maryland. Nevertheless, prosecutors argued — and Williams agreed — that the law clearly allows for such a maneuver.
Williams granted Porter limited immunity that he said protects Porter from having his testimony used against him when he is retried in June.
Porter’s attorneys contend that requiring him to testify would be a violation of his Fifth Amendment right against self-incrimination.
‘The Fifth Amendment creates a privilege against compelled disclosures that could implicate a witness in criminal activity and thus subject him or her to criminal prosecution,’ Porter’s attorneys wrote.
The Maryland statute on immunity is ‘designed for people without skin in the game: witnesses. Not Officer Porter,’ they wrote.
Porter’s attorneys are correct. As I noted in Update 29, this matter has not been adjudicated primarily because it has been understood that the 5th Amendment means what it says and clearly says what it means. Likewise, immunity is designed for witnesses, and not necessarily those that have done anything wrong. As the Gray case clearly illustrates, there is sometimes reason to be wary of the state’s intentions and motivations, and innocent people can be prosecuted and even imprisoned.
In granting the motion to compel Porter to testify, Judge Williams warned prosecutors that they were headed down a tricky path if they intend to retry Porter. ‘The second he testifies, it may change the game,’ he told them last week.
The prosecution’s motion for a continuance in the Goodson case pending the appeal decision was filed on Friday, according to court records. Short of a continuance, it had asked for Porter’s retrial to be rescheduled to occur prior to the trials of Goodson and White. The prosecution argued that allowing Goodson’s or White’s trials to proceed without Porter would ‘result in irreparable harm to the People of Maryland by effectively gutting their government’s prosecution’ against Goodson and White.
Perhaps they should have thought about that prior to filing charges.
Porter ‘is the only witness able to testify to critical aspects of Defendant Goodson’s alleged role in Mr. Gray’s death,’ the prosecution wrote, and allowing Goodson’s trial to move forward without Porter’s testimony would ‘work a grave injustice that would strip the State of a legislatively and constitutionally authorized tool … for compelling the truth from an alleged witness to murder.”
If the prosecutors are honest in this assertion, and their obvious desperation suggests they are, a permanent injunction could very well doom the cases against every one of the officers. Judges hearing such a pathetic argument, which is essentially: “if you don’t violate this man’s 5th Amendment rights, we don’t have a case,” would normally be justifiably disgusted with the prosecutors, and would surely not order Porter to unwillingly walk into a perjury trap, which is what the prosecution is likely to be arranging. Such arguments tend never to come up because ethical prosecutors don’t put themselves in this position.
On a related matter, a recent opinion piece in the Baltimore Sun, by Tricia Bishop, its Deputy Editorial Page Editor, demonstrates why Baltimore is yet another big city, Democrat controlled, snake pit:
It’s inevitable when my husband and I visit family these days that the subject of violence in Baltimore comes up. Often, I’m the one who raises it. But when it came up last week on a trip to see my parents in Georgia, I got my back up. I thought of the 11-hour drive south and the billboards we passed along I-81 boasting guns for sale (‘A Glock for Christmas’!), and of the story my brother-in-law, who lives in Florida, told of a neighbor stopping by to shoot the breeze in his suburban driveway, a handgun holstered at the man’s waist as their kids played nearby.
This is common Progressive ideology. Bishop is horrified by the mere idea of people owning guns, and giving guns as Christmas gifts. This is odd in that Progressives tend to be less than supportive of Christianity, and even Christmas, so the idea that giving a firearm as a Christmas present is somehow inappropriate, that it somehow disturbs the sanctity of the occasion, seems a bit disingenuous.
I’m less afraid of the criminals wielding guns in Baltimore, I declared as we discussed the issue, than I am by those permitted gun owners. I know how to stay out of the line of Baltimore’s illegal gunfire; I have the luxury of being white and middle class in a largely segregated city that reserves most of its shootings for poor, black neighborhoods overtaken by ‘the game.’ The closest I typically get to the action is feeling the chest-thumping vibrations of the Foxtrot police helicopter flying overhead in pursuit of someone who might be a few streets over, but might as well be a world away. But I don’t know where the legal gun owners are or how to ensure that their children, no matter how well versed in respecting firearms, won’t one day introduce that weapon to my daughter.
She really doesn’t understand the inherently racist nature of her comments. She fears law-abiding gun owners, but not criminal thugs because she’s white and middle class and she doesn’t live in ‘those” neighborhoods. The mere fact that people are allowed to own firearms scares her because people that run in her circles might own them. Let the blacks and others shoot each other. They don’t worry her, and they are certainly not going to tell the authorities about their illegal guns, but Bishop’s daughter isn’t going to their homes anyway, so what does it matter? She’s equally oblivious to the fact that her gun owning neighbors help extend the protection of their home to hers, for criminals have to assume that everyone is armed. Is it any wonder that the crime rate in Baltimore has skyrocketed? And what is Bishop’s solution?
And so, as President Barack Obama announced plans this week to tighten background checks for gun buyers and increase gun tracking and research, I thought, that’s all well and good, but how about adding something immediately useful: a gun owner registry available to the public online — something like those for sex offenders. I’m not equating gun owners with predatory perverts, but the model is helpful here; I want a searchable database I can consult to find out whether my kid can have a play date at your house.
Presumably, Bishop doesn’t care that criminals can search that database to ensure that their risks are as low as possible when they’re planning burglaries, robberies, rapes or worse. Obviously, she doesn’t understand that her very lack of a gun would make her home a prime target for the kinds of criminals that dare to come out of their neighborhoods to prey on just her kinds of people, who, after all, have things worth stealing. Bishop assures readers that this database would include some of her friends and relatives; she’s willing to sacrifice through them. How noble and public-minded of her.
My folks were taught how to handle guns and use them safely. But that doesn’t do much to allay my fears; it’s the simple presence of the weapon in the home and the possibilities it presents that terrify me. [skip]
My only exposure to guns has been to legal ones. I remember as a teen-ager spending an afternoon with a couple of boys who were showing off after school, firing a family gun in the backyard and play aiming at one another. And I fired a .22 caliber pistol several years ago as a reporter covering handgun-carry regulations in Maryland; I still have the paper target practice sheet taped to my cubicle to flaunt my bullseye. There was a definite rush to handling the weapon, and I could see the attraction of target practice as a hobby. But the risk to owning the gun isn’t worth it to me.
I’m sure Ms. Bishop is equally distressed that some people think protecting their lives and the lives of those they love to be “worth it.” Get this:
Guns in the home are far more likely to be used accidentally, in suicides or family disputes than in self defense, according to studies based on anecdotal evidence. (Perhaps Mr. Obama’s improved research will show for sure.)
This assertion is, of course, complete nonsense. It’s the Kellerman conclusion, which even academic Kellerman has admitted has been taken out of context and misused by anti-liberty advocates. I particularly like the “…according to studies based on anecdotal evidence” citation. A study based on anecdotal evidence–stories, not research–isn’t a study at all and has no scientific validity or practical application. Putting together a number of anecdotes from people who saw strange lights in the sky does not prove the existence of extraterrestrial spacecraft in the skies. I’m sure, by the way, that any “study” directed by Mr. Obama will be sure to find whatever “facts” Mr. Obama wanted to find. This next paragraph should horrify rational people:
And I’m pretty certain that if I’d had a gun the one time I was the victim of a violent crime (in upstate New York), the outcome would have been a lot worse than it was, with the firearm turned against me in short order. Instead, I was able to scream and break away from a mugger with a dull knife trying to force me into a vacant lot between rowhouses.
Bishop is obviously fortunate to be alive. How, pray tell, could she tell the knife was “dull”? John Lott’s actual research clearly demonstrates that armed victims are far less likely to be harmed in a criminal attack than disarmed victims. Screams and running tend to be ineffective where attackers are determined, but few criminals are foolish enough to try their chances against guns.
Bishop’s assumptions are surely shared by those that have been in complete control of Baltimore for decades. Now that the Baltimore police have been effectively emasculated, the inevitable result–criminals running rampant–has manifested. Disarming the law abiding, and publicizing that fact for the benefit of criminals, will not improve public safety or the quality of life in Baltimore. Neither will prosecuting innocent police officers.
Here’s a potential solution from my pal Bookworm. Somehow, I don’t think this is what Bishop has in mind: