Several interesting issues have arisen since Officer Edward Nero was acquitted on all charges by Judge Barry Williams. Judge Williams’ entire decision is avaiable embedded in Andrew Branca’s article at Legal Insurrection. I’ve already summarized Williams’ rationale, but there is one item that deserves a bit more attention. In response to the claim by the prosecution that Nero arrested Gray, or participated in a sort of joint arrest, Williams wrote:
The testimony that was presented from Miller and the interview with the defendant, where both indicated that ‘we handcuffed,’ is more in line with the habit of Baltimore City Police Officers who testify to speak in terms of what was done by the collective and not necessarily what is done by the individual. Therefore, the Court does not find that the use of the term ‘we’ implicates the defendant in either participating in the initial detention of Mr. Gray or the subsequent decision to arrest Mr. Gray.
By simply declaring that Nero had no real role in the arrest of Gray—which he did not—Judge Williams was able to avoid directly ruling on the lawfulness of the arrest of Gray. Some commentators apparently see in this certain doom for the remaining officers, but that’s wildly pessimistic. Officer Garrett Miller’s testimony about his arrest of Gray, because of the prosecution’s short-sighted immunity agreement, cannot be used against him in his trial. And in any case, his pursuit and rapid arrest of Gray were governed by Terry and Wardlow, which Judge Williams relied upon in his decision on Nero. The prosecution even stipulated to the legitimacy of the arrest in the Nero case. This will not, however, keep them from arguing otherwise, consistency and the law having little effect on their strategy and arguments to date.
If you have an interest in a more in depth analysis of these issues, visit the previously linked Branca article. Branca and I often cover the same issues in much the same ways, which, considering we approach them from experience, the law and reason, is not surprising.
Sue The Bastards!
Sgt. Alicia White and Officer William Porter have filed suit against Baltimore Prosecutor Marilyn Mosby and Baltimore Sheriff’s Office Major Sam Cogen for defamation and invasion of privacy. Take the link for more information, but suffice it to say that such cases are hard to win against prosecutors. As long as their conduct is within the limits of the performance of their duty, they have virtually complete immunity. Cogen, however, may be another matter. Those that have been following the Freddie Case since its inception on SMM, may recall Major Cogen from Update 5: Probable Causeless.
He wrote the bizarre, probable causeless probable cause statements on the six officers, statements that were copied, virtually word for word, for each officer, something that is never done, at least when competent police officers and prosecutors are involved. Recall that this was during the initial rush to prosecution, where Mosby issued warrants for innocent, uninvolved citizens, had to change the charges, and filed charges long before an investigation was remotely complete.
Equally odd is a major—an administrator who does not do investigations or other normal police work—writing probable cause statements, apparently about an investigation in which he apparently had no part. It is the primary investigating officer, usually a detective, that writes PC statements; they’re usually the only person sufficiently well versed in the details of a given case to do it. Perhaps Cogen was the only person the prosecutors could talk or trick into doing their dirty work, or perhaps he was an enthusiastic supporter of Mosby. In any case, he will likely be more vulnerable than Mosby.
However, the lawsuit may have been filed with no expectation of prevailing on its merits. In such matters, as in the criminal cases filed against the officers, the process is the punishment. The lawsuit will surely have the effect of distracting the prosecution and swaying them, to some degree, from attack to defense. It will produce at least some negative publicity for Mosby. Most likely, however, is the suit is a clever means of getting around Judge Williams’ gag order. Consider this from The Sun:
The officers had asked that the lawsuit be sealed to ‘avoid any suggestion’ that they were ‘not complying with the spirit of’ a gag order issued in their criminal cases by Circuit Judge Barry G. Williams, and to ‘avoid any additional pretrial publicity in connection with their upcoming criminal trials.’ They said they had to file the lawsuit at this time because of statute of limitations concerns.
Judge Althea Handy on Wednesday denied the motion to seal the case, saying the officers had ‘failed to provide a special and compelling reason to preclude or limit inspection of the case record sufficient to overcome the presumption of openness’ under Maryland law.
This may be a classic—and successful–case of reverse psychology applied by the officer’s lawyer, Michael E. Glass. The facts of the civil suit are the same as those of the criminal cases. Some commentators are already explaining that civil cases have no requirement for speedy trials, which is true enough, however, a great deal of information useful in the social justice/public narrative war surrounding the case can now be released at will, and all under the “presumption of openness under Maryland law.” This could be very helpful as the trial of Sgt. White and the re-trial of Officer Porter approach. I’ll have much more to say about those cases as their trial dates draw nearer, though I’ll observe this about Sgt. White: absent previously unknown evidence, her role appears to be even less involved than that of Officer Nero. She may never have so much as touched Gray, and had no part in his arrest.
One can be reasonably certain that Mr. Glass, or any lawyer, would not take such a case–which he surely did on contingency; these officers have no money—without a reasonable certainty of being eventually compensated for his efforts, likely by means of a settlement. The other option is that a year hence, he may find himself in the position of observing that every charge, or most charges, against the officers failed, thus Mosby and Cogen acted with malice in destroying the reputations and lives of the officers, etc. He may be doing it out of the kindness of his heart, and lawyers often take pro bono cases, but I’m unaware of any evidence that’s happening here.
While the battle plays out in the justice system, the case is also being argued in the court of public opinion, where the constantly shifting principles of social justice, not the rule of law, are often the determining factors. It is this court to which the officers have, before the filing of the suit by White and Porter, been denied access and influence.
Former Federal Prosecutor Andrew McCarthy, at PJ Media, discusses the difference between narrative and fact:
As was the case in the 1990s terrorism cases, the official government media narrative had nothing to do with the actual facts of the case. Gray’s death was an accident. Baltimore’s criminal justice system is among the most thoroughly integrated in the country.
The critical difference between then and now, though, is that in the absence of evidence, the prosecutors are trying to sell their propaganda as proof.
Not surprisingly, it is a rout so far. Prosecutors have been unable to convict the first two police officers, most recently officer Edward Nero, who was acquitted on all charges Monday.
Not surprisingly, the only way the prosecution stands any chance of winning is to incite an atmosphere of intimidation.
Consider then a representative bit of social justice agitprop by Sarah Kendzior at Quartz.com. Titled The Ferguson Effect: Freddie Gray verdict: US police officers who kill rarely get punished, but they might get rich, the first paragraph clearly gives away the premise:
In the US, police officers can kill without consequence. The latest confirmation of this injustice came in the May 23 acquittal of Baltimore police officer Edward Nero in the death of 25-year-old Freddie Gray.
The article offers no balance, such as the fact that before becoming a judge in Baltimore, Barry Williams traveled the Eastern seaboard as a federal prosecutor tasked with prosecuting cases of alleged police brutality. it also fails to explain the judge’s reasoning in acquitting Nero, which amounts to acknowledging there was no evidence whatever to convict him. He should never have been charged.
Kendzior treats other well-known cases identically, withholding every fact that does not support the social justice party line:
On August 9, 2014, police officer Darren Wilson shot unarmed black teenager Michael Brown to death and left his body on a Ferguson, Missouri street for four and a half hours. Wilson likely had no idea that his actions would set off a national controversy over race and police brutality–and that this controversy would make him a millionaire. Within two weeks, a GoFundMe page set up to support Wilson raised $225,000. Despite online protests, a second GoFundMe was soon created, raising his total to $433,000.
In November 2014, after St. Louis prosecutor Bob McCulloch chose not to charge Wilson in Brown’s death, a Wilson fundraising organizer revealed that an outpouring of additional donations had raised Wilson’s total to roughly one million dollars. Though Wilson’s fortune changed, the fate of young black men in St. Louis have not.
The problem is not one of perspective. In reporting and analyzing the Freddie Gray case, I have a perspective, which is that not only are these officers innocent, no charges should have been filed. However, that perspective is informed by the known evidence, my experience in the criminal justice system, and the behavior of all involved. Such is not the case with social justice warriors, or Kendzior. They work from their ideology as expressed by the narrative, and ignore facts and evidence, or make things up as required to support the narrative.
Wilson didn’t leave Brown’s body in the street. That wasn’t his decision–not in the most insignificant possible way. Standard police procedure required that his body remain until all possible evidence was collected. To do otherwise would have been unprofessional, unethical and cause for concern. McCulloch did not choose not to charge Wilson, a grand jury, which heard every fact in the case, including those not favorable to Wilson, made that decision. McCulloch ensured they had all those facts, which was in itself unusual. Prosecutors usually only present the facts that argue best for charges. Kendzior omits the fact that the federal DOJ also found no evidence to charge Wilson and admitted it.
Even half-hearted research into the Brown case would have revealed to Kendzior that that case against Wilson was non-existent, and that Brown was a drug-crazed, violent criminal who robbed a store and tried to kill a police officer. The perjured testimony of many local black “witnesses” was so absurd as to be comic, as one can discover with a visit to the SMM Brown case archive.
By Kendzior’s account, Wilson did not garner anywhere near a million dollars. What she also omits is that Wilson, because he did his job professionally and lawfully, not only lost his job, any possibility of continuing in a police career, but he and his family continue to live in hiding, a state of being which is much more costly than being able to live normally, particularly when one can’t work without exposing himself or his family to assassination attempts. And who are the people that donated to Wilson? Evil, black youth-hating bigots? They were, instead, Americans disgusted with the social justice railroading they saw in progress.
Kendzior claims the Ferguson Effect has been debunked, citing such authorities as Barack Obama and Loretta Lynch. Unfortunately for Americans, it is all too real, and worsening, as one can discover by talking to police officers, and with, again, minimal research.
Kenzior also mentions the Cleveland case of Tamir Rice, an adult-sized (app. 195 pounds and at least 5’7” tall) 12–year old who she portrays as “a 12-year-old Cleveland boy playing with a toy gun in a park.” Responding to reports of someone–they were never told he was a child or that his gun might be a toy–pointing a gun at people, officers were confronted by Rice who pointed a replica handgun, which could not be distinguished from a real gun, at the officers. He was shot and killed. Fortunately, there was security video, and Officer Timothy Loehmann was, correctly, not charged. This was not sufficient for Kendzior:
In April 2016, Cleveland itself had to pay up: $6 million was awarded to the Rice family after a civil lawsuit. But even then, police would not admit guilt. The court file states ‘there was no admission of tamir rice wrongdoing.
Baltimore too paid the Gray family more than $6 millions dollars, but not because the officers did anything wrong. That was a social justice settlement, made long before a single officer had been tried, just as the Cleveland settlement was done for social justice reasons, including the appeasement of the mob. The police would not admit guilt because there was none—in that case—to admit. Indeed, the officers might have used better tactics, but that doesn’t rise to murder.
No such narrative would be complete without reference to Trayvon Martin, and Kendzior doesn’t disappoint:
Perhaps the most notorious example of the real ‘Ferguson effect’ is the May 2016 auction of the gun of George Zimmerman, whose killing of black teenager Trayvon Martin in 2012 was deemed self-defense. Zimmerman has remained boastfully unrepentant since his trial. But the sale of the gun for $250,000 revealed a new level of shamelessness, and showcased again just how the murder of black men has been monetized.
It was “deemed self-defense” after a bizarre trial in which the judge was blatantly pro-prosecution, the prosecution actually proved self-defense, and its witnesses were so obviously incompetent, unbalanced and dishonest, the defense barely had to put on a case. Followers of that case can refresh their memories at the SMM Martin archive.
It was, in fact, an unremarkable case of self-defense of which the nation would have had no knowledge without the racist “organizing” done by an unethical prosecutor, the national black grievance industry, the DOJ, and President Obama, who called Trayvon Martin the son he never had. Like Michael Brown, Trayvon Martin was a young, violent thug, under the influence of drugs. He attacked, without provocation, an innocent man and tried to kill him. He paid the price. Martin’s family were also able to extort substantial money.
Since being acquitted, Zimmerman has been essentially unemployable. His planned future evaporated, and he has had to constantly look over his shoulder. In fact, he has had to deal with an assassination attempt.
People often pay for artifacts of notorious events, even events that would never have come to public attention without social justice agitating. Any money Zimmerman realizes from the sale of that handgun will not compensate him for the loss of any hope of a normal, productive life. And it is people like Kendzior who keep alive the narrative that would see Zimmerman’s murder as an act of righteous social justice, a cause for celebration.
Kendzior ends thus:
The most disturbing aspect of the Zimmerman auction was perhaps the buyer: a woman who, according to the BBC, had wanted the gun as a birthday present for her son. No information has been given as to her identity or her son’s age. We only know she had a lot of money and used it to further the financial incentive for murdering black boys.
Hmmm. Kendzior knows nothing about the woman or her motive in buying the gun, but she is certain that woman “used it to further the financial incentive for murdering black boys.”
That is the lesson her son will learn on his birthday. That is the lesson all American children will grow up with as they watch the killers of Brown and Gray and Rice and Martin walk free. The lesson black boys will learn is that if they are shot to death in America, their killers will not only go unpunished, but may be financially rewarded.
It’s a lesson that should shame us all.
It is only by ignoring the rule of law and embracing social justice that Kendzior can come to her conclusion. It is only by ignoring fact and evidence and embracing racism, rage and race hustling she can call the officers and George Zimmerman “killers.” In every case, the rule of law prevailed. All of the evidence was evaluated by the proper process. In every trial, the state had more than sufficient opportunity to present its case, and the evidence revealed it had no case.
Regular readers know I have no difficulty calling the police to task when the evidence supports it. In the case of Freddie Gray, as we are discovering more and more with every successive trial, there is no evidence. There never was. Unfortunately, the trial in the court of social justice, assisted by people like Sarah Kendzior, never ends, and that’s a lesson that should shame us all.
Whenever a social justice narrative goes unchallenged, it wins. Whenever it wins, more and more Americans are conditioned to think anger, emotion and feelings matter more than fact and evidence. Whenever it wins, the racial divisions between all Americans widen.
I just did my part to challenge this particular example of social justice narratives. And you, gentle readers?