The Freddie Gray Case, Update 34.5: Nero Acquitted/Mosby Absent

For the Edward Nero trial, Judge Barry Williams decided to uphold the rule of law rather than delivering social justice. He found Nero not guilty on all counts. Baltimore City Prosecutor Marilyn Mosby was conspicuous by her absence.

credit: patdollard.com

Prior to actually delivering his verdict, Williams spent roughly a half hour explaining how he came to his decision for each count. What he made abundantly clear was that not only did the prosecution fail to prove each count beyond a reasonable doubt, they had no proof at any level. He also obliterated the prosecution’s “novel legal theories.” Following the law left him no choice.

As was inevitable, many “community activists” were not impressed (via the local CBS affiliate): 

One of the people leading the charge is Rev. Wesley West.

‘I’m angry because this is what we deal with, and when I say ‘we,’ we’re talking about the black community and I’m a part of and represent that community as well, it seems like we have no voice when it comes to these issues,’ he said. ‘When it comes to conversations like this, we’re not involved. This should have been a jury trial where the community had a voice in this case. Of course a system works in a system’s favor, that’s how I look at it. That judge represents the system, and the police officer represents a system, but they’re all one system working together. And again I don’t think the case was actually tried fairly when it comes down the community being involved.

And thank goodness the “community” doesn’t get to be “involved” in rendering social justice. It is just that kind of involvement that guarantees individual rights will be trampled and the innocent, particularly the unpopular innocent of the moment, will be, figuratively and actually, hung.

Attorney Billy Murphy Jr.

Gray family attorney Billy Murphy, who has already worked out a $6.4 million dollar settlement for the family with Baltimore, seemed to be rational voice:

I have to commend Judge Williams on not being influenced by public opinion,’ Murphy said. ‘It’s a very, very difficult job to sit as a judge under these enormously stressful conditions, and once again Barry Williams has shown he is a fair and impartial man… He showed tremendous courage in ruling against public opinion.’

‘I don’t think anybody should be upset with this verdict nor do I think anybody should have been elated about a guilty verdict,’ he added. ‘Only the people who sat through this trial and heard all of the evidence have a right to have an opinion about whether his opinion was fair and whether or not it was warranted under the circumstances. So we should all understand that we all have opinions, but unless they’re based on the facts and all of the facts, those opinions are essentially irrelevant to this process.

Murphy should be commended for being reasonable, but he can afford it. Normal attorney’s fees for such things run in the 30-40% range, so Murphy is taking home something over $2.2 million dollars at least. Take the preceding link for an interesting take on the propriety of such a settlement before the trials of the officers involved so much as began.

Outgoing Mayor Stephanie Rawlings-Blake also tried to demonstrate a bit of statesmanship she absolutely lacked after Gray’s death (via The Baltimore Sun):

This is our American system of justice and police officers must be afforded the same justice system as every other citizen in this city, state, and country,’ Rawlings-Blake said in a statement. ‘Now that the criminal case has come to an end, Officer Nero will face an administrative review by the Police Department. We once again ask the citizens to be patient and to allow the entire process to come to a conclusion.’

She noted the city is ‘prepared to respond’ to any disturbance in the city. ‘We will protect our neighborhoods, our businesses and the people of our city,’ she said.

This is very different than her racist cheerleading immediately after Gray’s death when she was on the “justice for Freddie Gray” bandwagon, and noted that she gave thugs room to destroy the city, a boon of which they gratefully took full advantage.

Lt. Gene Ryan, President of the Fraternal Order of Police, also released a statement:

Officer Nero is relieved that for him, this nightmare is nearing an end. Being falsely charged with a crime, and being prosecuted for reasonas that have nothing to do with justice, is a horror that no person should every have to endure. Unfortunately, however, his relief is tempered by the fact that five other Police Officers, outstanding men and women, and good friends, must continue to fight these baseless prosecutions. None of these Officers did anything wrong. The State Attorney’s office responded to the riots and violence in Baltimore by rushing to charge these Officers rashly and without any meaningful investigation. They seized a political opportunity and in the process destroyed 6 lives and demolished the relationship between the Baltimore Police Department and their own office.

Officer Nero prays that justice will serve each of the remaining Officers with the same fairness that it served him. He implores State’s Attorney Mosby to refocus her flawed analysis of the facts surrounding Mr. Gray’s death and dismiss the remaining charges. These are good Police Officers and good people. While Mr. Gray’s death is no doubt tragic on many levels, maintaining these prosecutions only propels the tragedy to another level.

As Rawlings-Blake promised, in essence, to get justice for Freddie Gray against Nero and the other officers via the internal police administrative process, the Police Department signaled its willingness to work for social justice:

T.J. Smith, the police department’s chief spokesman, said Nero will remain working in an administrative capacity while the police department’s internal investigation continues.

‘The internal investigation is being handled by other police departments. The internal investigation will not be completed until all of the criminal cases against the other five officers are completed because they will likely be witnesses in each case,’ Smith said in a statement.

Regular readers know I’ve repeatedly explained why this case–indeed, all the cases–should never have been brought. It is, however, good to hear someone closer to the case, a Baltimore defense attorney–Warren Brown–saying the same things. It’s interesting to know that Brown is black. That shouldn’t matter, but in this case, it does, as Brown explains (via the invaluable Andrew Branca at Legal Insurrection, who has also been following the Gray case):

The problem is they tried to make a case out of whole cloth with regards to Miller and Nero right from the beginning. They were the face of this case – the Freddie Gray case – because they were the ones who were on video, they were the ones that the public got a whiff of early on and yet, their cases were the weakest cases for the state to present.

I think what happened was is the state’s attorney decided she was going to charge someone and worked back from there. I don’t think she got the evidence and worked up to the conclusion that these individuals should be charged. I think she decided that somebody had to be charged. Obviously, it had to be Nero and Miller because they were the first ones [on the scene], they are on camera, they are these white guys taking down this black guy, and I think that is where they went wrong – right from the beginning in charging Officer Nero and Miller, especially Officer Nero and Miller, of these charges.

Exactly.

Also worth considering is the opinion of former federal prosecutor Andy McCarthy, who writes at National Review:

For what it’s worth, I believe there was probable cause to arrest Gray. Probable cause is a non-technical assessment of the totality of the circumstances as they would be judged by an experienced police officer. Someone in a high-crime area who runs away as if he has just committed a crime upon seeing a police officer has engaged in suspicious behavior justifying an investigative stop; if, upon the frisk that routinely occurs during such a stop, the suspect is found to have a weapon that is illegal under municipal law (as lawyers for the police officers have contended this knife was), that is sufficient cause to make an arrest.

Nevertheless, even if we concede for argument’s sake that the facts of Gray’s arrest may not have risen to probable cause, the law allows the police to make a good-faith mistake of law without being guilty of the crime of false imprisonment.

To put police in the position of fearing that they might be prosecuted any time they make an arrest that a prosecutor or court later decides should not have been made obviously discourages the police from doing their jobs. That, in turn, encourages criminals to prey on victims (note that Baltimore’s murder rate reached a record high in 2015, and non-fatal shootings rose 72 percent over the 2014 level). So Mosby’s theory is reckless enough when applied to the police who actually apprehended Gray. It is truly insane, though, when applied to a cop like Nero, an officer who did not have anything to do with Gray’s apprehension but simply participated, after the fact, in the processing and transport of Gray.

Final Thoughts:

This series of cases has one set of facts and one set of witnesses. Even though Judge Williams tried to say that his decision in the Nero case is narrow and does not apply to any of the remaining cases, he is trying to un-ring a bell, several bells, in fact.

The prosecution’s theories change as often as a tidy person changes underwear. The idea that Gray was falsely arrested is surely dead. Judge Williams may pretend that he hasn’t already obliterated that “novel legal theory,” but how can he rule differently in the case of Garrett Miller, who actually arrested Gray? The law is entirely on Miller’s side.

The knife issue is essentially off the table, which will not prevent the prosecution from trying to argue that it really isn’t illegal. This would, of course, constitute lying to the court as they must know it is illegal under Baltimore City law, which is the body of law under which that particular crime was to be charged.

The officers, any and all of them, acted reasonably and within the law in pursuing, detaining, and then arresting Gray when they discovered probable cause. That doesn’t mean the prosecutors, had Gray not accidently killed himself, might not have declined to prosecute–though they have since prosecuted many people for carrying the same type of knife Gray carried–but it certainly means the officers may not and must not be prosecuted for lawful, reasonable actions. Even if they were wrong about probable cause, as McCarthy notes, the remedy, applied every day around the nation, is to suppress the evidence, which usually means the charge is dropped. If an officer continues to make similar errors, that’s a matter for remedial training, not prosecution.

What remains is the idea that failing to use a seatbelt on Freddie Gray is absolute proof of every crime under the sun. To answer that obviously insane legal theory will be multiple officers, supervisors and high-ranking officers of the Baltimore PD and elsewhere who will testify that virtually no one ever used seatbelts in transport vans or elsewhere, and that over the years, tens, even hundreds of thousands of people were so transported without injury.  The prosecution will be unable to prove that any of the officers were aware of the new policy, which came down only 3 days before Gray’s death, and as in the Nero case, the defense will present supervisors to testify that they never told officers about it. Which means the officers were all acting entirely reasonably. How can felony charges attach to that?

And where is the actual evidence of malicious intent—a depraved heart–in Gray’s death? Remember that even the prosecution’s pet coroner ruled his death accidental until Mosby got to them. And then there will be Dr. Vincent DiMaio, the man who wrote the many books on forensic issues, who will testify, as he did in the first Porter case, that Gray’s death was an accident–absolutely not murder–and accidents happen.

The new prosecution team–it will be interesting to see if they can be as irrational, deceptive and rabid as Bledsoe and Schatzow–will also have to deal with the issues of immunity in Miller’s trial. They may well have outsmarted and outmaneuvered themselves.

Reasonable prosecutors, who would have never brought these charges, would now be figuring out how to dump these prosecutions as quickly and quietly as possible, but that’s if they were operating under the rule of law.  Since this is a social justice prosecution, that’s not possible.

Nero’s legal jeopardy is not over. The Federal investigation continues apace, and before the racist thugs running the federal DOJ are forced out the door (an impossibility for many of them), they may go after every officer they can. And of course, internal BPD charges are still a probability. Remember that high ranking administrators on big city police departments are not there because of their excellent policing skills, but their ability to know which way the political winds are blowing, and to willingly sail along.

credit: legalinsurrection

These trials continue to destroy the relationship between prosecutor and police, lower ranking police and high ranking police, the police and the community, and various community factions. There will be no winners, even if all of the officers are acquitted, but the Ferguson Effect is very real, and the costs, in property, blood and lives, will be great.

Next in line for trial is Officer Caesar Goodson Jr, who drove the transport van. He is charged with a jaw-dropping stack of overlapping charges: second-degree depraved heart murder, manslaughter, second-degree assault, two count of vehicular manslaughter and the ever-popular misconduct in office. His trial is scheduled to begin June 6. The remaining trial dates are:

July 5: Lt. Brian Rice

July 27: Officer Garrett Miller

Sept. 6: Officer William Porter (retrial)

Oct. 13: Sgt. Alicia White

I’ll continue to follow this rolling train wreck of a prosecution.