Since the last post, there have been several developments as the legal maneuvering continues apace. Baltimore is planning to install cameras in its transport vans, as The Baltimore Sun reports:
Baltimore officials plan to pay a Florida company $187,000 for video cameras to record what happens inside police vans.
The city’s Board of Estimates is set to approve a contract Wednesday [02-24-16] with Point Blank Enterprises Inc., which won a bidding contest among six firms. [skip]
The contract is the second that city officials have proposed in recent months to prevent detainees from suffering injuries while in police custody.
In January, the spending board agreed to buy $200,000 worth of equipment that police say will improve the safety of the vans. The money paid for dividers to further separate detainees.
[Outgoing Baltimore Mayor Stephanie] Rawlings-Blake said the goal was to improve the vans for passengers and for police. The Board of Estimates voted to authorize the Police Department to add new dividers to 13 existing vans and to 10 more that the department is buying.
The reasonable reader might be forgiven for thinking Rawlings-Blake and her cronies have little or no concern for the welfare of BPD officers.
Currently scheduled trial dates for the officers are:
- Officer Edward M. Nero: May 10
- Officer Caesar R. Goodson Jr.: June 6
- Lt. Brian W. Rice: July 5
- Officer Garrett E. Miller: July 27
- Officer William G. Porter: Sept. 6
- Sgt. Alicia White: Oct. 13
Prosecutors are moving to compel another police officer charged in the death of Freddie Gray to testify against a fellow officer.
The Baltimore State’s Attorney’s Office filed a motion last week, made available Monday [04-04-16], seeking to order Officer Garrett E. Miller to testify at the upcoming trial of Officer Edward M. Nero. Both officers were involved in Gray’s initial arrest and have pleaded not guilty to charges of second-degree assault, reckless endangerment, and two counts of misconduct. [skip]
The motion comes after months of legal wrangling over prosecutors’ efforts to force Officer William Porter to testify under limited immunity against five fellow officers with his own charges still pending. Porter appealed, and the state’s highest court ruled March 8 that Porter had to testify.
This will be no surprise to regular readers:
Prosecutors had not previously stated that they planned to call any of the other officers to testify in the cases, but defense attorneys have said forcing Porter to testify would open the door to such a scenario.
Prosecutors and defense attorneys are barred by a gag order from discussing the case with anyone outside their own legal teams.
There haven’t been any prior cases in Maryland where defendants with pending charges were compelled to testify against their co-defendants. If Judge Barry Williams grants the prosecution’s latest motion to compel, Nero’s trial would feature both Porter and Miller as witnesses.
Miller and Nero were on bike patrol on April 12, 2015 in Gilmor Homes when they said Gray, 25, ran unprovoked. Gray was chased and detained, and then arrested after police said they found a switchblade knife clipped to his belt.
Apart from raising the constitutional issue of compelling defendants to testify against their co-defendants when they are still in legal jeopardy, which appears to be an obvious violation of the 5th Amendment, this may actually amount to little. While all of the evidence in this case has not been made public, it is likely that there is little or nothing Officer Porter or Officer Miller have to say that will be damning to their fellows. If this is true, why would the prosecution demand such testimony?
A full written opinion from the court has not yet been released.
Porter’s attorney had argued that his client could still be subjected to perjury charges, and that immunity would not protect him from a possible federal prosecution. Prosecutors argued that Porter’s Fifth Amendment right against self-incrimination would not be violated by requiring him to testify under a grant of limited immunity.
Attorneys for Officer Caesar Goodson, who drove the arrest van, argued in the Court of Special Appeals that forcing Porter to testify could lead to their client, who never gave a statement to investigators, being ordered to take the stand in the trials of his fellow officers.
‘In fact, every single defendant involved in the April 12, 2015 arrest and transport of Mr. Gray could be compelled to testify in the case of Officer Porter (or any other defendant) under the state’s theory,’ Goodson’s attorneys wrote.
At the time, Goodson’s attorneys described that scenario as ‘not only nonsensical but it completely eviscerates the purpose of their constitutional protections.
And that is precisely what is taking place. Normally, prosecutors don’t call witnesses unless their testimony is necessary to fulfill essential elements of the offenses charged. That does not appear to be the case here, as they demonstrated no intention of trying to compel the officers to testify against one another until they utterly failed to convict William Porter. One possibility is that the prosecution is trying to construct as many perjury traps as possible. They already know they are unlikely to convict anyone, or at the very least, they are unlikely to convict anyone of any serious offense. Being able to continue the dog’s tail-like pursuit of the officers on perjury charges could easily be a face-saving maneuver for Marilyn Mosby.
Another possibility is that they are simply incompetent and desperate. Driven to file charges based on political rather than rule of law concerns, they find themselves in a panic, seeking to avoid looking like complete idiots.
Calling Porter and Miller as witnesses is not without consequence for prosecutors. Before their cases, the court must hold what is called a ‘Kastigar hearing,’ a proceeding before Porter’s retrial in which the burden would be on prosecutors to prove that they had not improperly used anything from the officers’ testimony in preparation for their own trials.
Even so, the prosecution knows that they can themselves testify, slipping improper and prohibited information to the jury and into the public realm. The judge can and likely would overrule them, perhaps even threaten them with sanctions, but they know that a bell cannot be unrung. And again, they are free to file perjury charges based on even less evidence than they have in this case.
It could also require a ‘taint team,’ or a panel of attorneys who would be brought in to assist in assuring that prosecutors have not been tainted by hearing the officers’ testimony. Assistant Attorney General Carrie Williams, who argued for prosecutors in the appeals court, said it was ‘uncharted territory,’ which spoke ‘volumes about the burden the state faces’ by calling the officers as witnesses.
A significant reason that this is “uncharted territory” is that ethical prosecutors understand that the Constitution must be given the benefit of the doubt. When prosecutors plow ahead, heedless of the rights of citizens, it is those citizens that suffer first, often with the destruction of their lives, years wrongly imprisoned, their reputations and ability to make a living in tatters. Of course, the rule of law suffers as well, but it is the human wreckage the Constitution exists to prevent
Let’s have a brief review of the grossly incompetent and unethically incomplete probable causeless statement in this case. Note that I did not say “probable cause statements,” because there is only one, copied and the name changed for each officer.
It was Lt. Rice and Officer Nero and Miller on bike patrol, at the express request of Prosecutor Marilyn Mosby, who caught and arrested Freddie Gray. They loaded him into the van, and at one additional stop, the first stop, restrained his legs, because he was banging wildly away at the van, and reloaded him into the vehicle, stomach down, on the floor, which would have been the safest way to transport Gray had he only remained there. They would be present at one later stop when Officers Goodson, Porter and Sgt. White were checking on Gray, but according to the universal PC statement, apparently did not touch Gray.
Apart from that, only Goodson and Porter repeatedly observed Gray and checked on him, though apparently, again, according to the PC statement, only Porter actually touched Gray.
What’s missing: any actual evidence of malicious intent or action by any of the officers.
Even if every officer is exonerated, this case will not go away for years. The 5th Amendment issue alone could easily go to the Supreme Court, and a 4/4 ideological split likely would not prevent a finding in favor of caution and the 5th Amendment.
The prosecution’s case, absent the production of substantial and highly convincing evidence, is no better now that it was when they failed to convict Officer Porter of a single charge. The testimony of fellow officers is very much unlikely to provide that necessary evidence, or to convince any jury of the officer’s guilt.
For example, in this case, for every officer, we have the local coroner who initially ruled Gray’s death accidental, but after being “convinced” by the prosecutors, decided it was a homicide after all. In opposition to that, we have Dr. Vincent DiMaio, the man that actually wrote the book on forensic pathology, testifying, without any “convincing” necessary, that Gray’s death was accidental. DiMaio is among the most effortlessly authoritative, convincing witnesses I have ever seen.
What is most likely is that the prosecution continues to do everything possible to stack the deck against the officers. Stealth jurors, negative publicity, progressive judicial rulings, perjury traps are mere preliminaries. The Freddie Gray case remains racist, political theater, and the authors will continue to rewrite the script in an effort to keep the play from folding during its first week.