The Freddie Gray transport van

The Freddie Gray transport van

Pity the police transport van driver. Virtually no one wants to do it. Cops driving the vans can’t do real police work, and are stuck dealing with people that cry like spoiled babies, scream like madmen, spit, fling blood, urine and feces, insult and try to assault them, vomit everywhere, soil themselves, and smell badly enough to gag even experienced police officers. And if that’s not bad enough, prisoners regularly fake medical conditions and problems, and try to set up the police, starting with the van driver, for lawsuits. The constant exposure to the worst in humanity is disheartening, to say the least.

In most law enforcement agencies, shift supervisors rotate the duty to spread around the love. Pity Baltimore Officer Caesar Goodson Jr. He had that unlucky duty the day Freddie Gray was arrested, and he is paying the price; his trial for murder, and a variety of lesser charges, begins on Thursday, June 09. It will be a bench trial, presided over by Judge Barry Williams. The Baltimore Sun reports:

Caesar Goodson Jr. (right)

Caesar Goodson Jr. (right)

Goodson’s trial will begin at 9:30 a.m. Thursday, Circuit Judge Barry G. Williams decided during a pre-trial motions hearing on Monday. Both sides had previously planned for jury selection to take several days, so they had not scheduled witnesses to be available until Thursday, Williams said.

Goodson, 46, is charged with what’s known as depraved-heart murder, a second-degree felony charge that carries a maximum sentence of 30 years in prison. He also faces three counts of manslaughter and charges of second-degree assault, misconduct in office and reckless endangerment.

At both Nero and Porter’s trials, many law enforcement officers and officials testified that Goodson, as the van driver, had ultimate responsibility for Gray’s safety. Gray was injured after being handcuffed and shackled but not restrained by seat belt in the back of Goodson’s van.”

The Sun, and other media sources, have made much of the fact that Goodson did not personally buckle Gray into the van, and also that Goodson had the greatest responsibility for Gray’s safety. In fact, any officer that transports a prisoner in a van, squad car, or merely by walking with them from point A to point B, is responsible for their safety. Goodson’s responsibility was no greater than that of any officer transporting a prisoner. However, there is another issue. Officers transporting people in a squad car normally drive them straight to jail, making no stops of any kind on the way. It’s different with officers driving vans. They are normally required to pick up multiple prisoners to free officers to work the streets.

The real issue is whether Goodson’s actions in not belting Gray were reasonable. The primary way to determine that is to establish why Gray wasn’t buckled in, and to establish that it was common BPD practice not to use the seat belts–for any police vehicle–and why. While the Prosecution has tried to get BPD administrators to suggest officers had no choice but to use seat belts at all times, they have had to admit under cross examination that even with the policy implemented only a few days before Gray’s death, officers always retain discretion. Seat belts are not, and cannot, be mandatory regardless of circumstances. Police policies are not laws. This is interesting and will be a significant factor:

Goodson was the only one of the six charged officers who did not provide a recorded statement to police investigators. In recent weeks, he has also challenged key evidence in the case, which Williams addressed during the motions hearing Monday.

Absent this, and if Goodson does not take the stand, which is highly likely–Porter and Nero did not–the prosecution will have to rely on “novel legal theories” to prove their case. They are trying to sell theories that do not require evidence or adherence to the law. They want the court to accept social justice instead of the rule of law. This is another major problem for the Prosecution:

Williams granted a motion by Goodson to block as hearsay an unrecorded statement that Porter allegedly made to a police investigator — that Gray had said ‘I can’t breathe’ at a stop of the van where Gray, Porter and Goodson interacted.

Porter denied making the statement to Det. Syreeta Teel at his own trial, where Teel testified that he had made the comment to her during a phone conversation that came prior to Porter providing a recorded statement.

Dr. Vincent Di Maio

Dr. Vincent Di Maio

Even if the prosecution is able to get this in, and they will probably do it via the back door testimony of Medical Examiner Carol Allan, it is far less damning than it might seem. Prisoners often make this claim–I’ve seen it many times–and it is a fact that if they can speak, they can breathe. Dr. Vincent DiMaio, who actually wrote the books on forensic science, will testify to that, and just as he did in Porter’s trial, will testify that Gray’s death was an accident, “and accidents happen.” The issue, as always, is whether it was reasonable for officers to think that Gray was faking, and all known evidence indicates that it was reasonable.

At Porter’s trial, Allan was heavily challenged by the defense on the information she used to conclude that Gray’s death was a homicide.

This is a polite, social justice narrative way to say that Allan’s credibility was obliterated by the Defense. It was Allan that originally ruled the death accidental until pressured by the prosecution, who convinced her that an accident was a murder. It was also Allan who suggested that Gray’s spinal cord injury occurred between the 2nd and 4th stops, yet Gray was still able to move and talk. Dr. DiMaio testified that the injury must have occurred after the fifth stop, and that when Gray’s spinal cord was injured, he would have been unable to breathe or talk. This testimony was supported by a prominent neurologist.

Williams also denied defense motions to dismiss the case for violating Goodson’s right to a speedy trial and on the claim that prosecutors had not fully outlined the alleged acts that constituted the crimes charged.

Translation: There was insufficient, or no, probable cause to charge Goodson. As I’ve previously noted, this is true for all of the officers, and is the reason the prosecution is relying on “novel legal theories.”

The Atlantic, a faithful purveyor of the social justice narrative, recently published an article–they’re apparently unable to spot the inherent irony–titled: Can Prosecutors Convict Anyone at All in the Death of Freddie Gray? The article notes that Baltimore Prosecutor Marilyn Mosby enters the Goodson trial having lost the Nero trial, and with a mistrial in the Porter trial.

The Baltimore Sun reports. ‘The trial is expected to feature medical experts giving contrasting opinions over exactly how and when Gray was injured.’ Many observers expect the question of whether Gray was given a “rough ride”—in which police intentionally bang suspects around while in transport, to punish or injure them—to be central in the case. Goodson, 46, also faces charges of manslaughter, second-degree assault, and misconduct in office.

The Atlantic refers to the respective testimonies of Dr. Carol Allan and Dr. Vincent DiMaio. Dr. DiMaio is an extraordinarily effective and believable witness. He testifies only to the evidence, and does not step outside his field of expertise. His credentials far surpass those of Dr. Allan, whose conclusions in this case have been flexible, to say the least.

The Atlantic spoke with Professor David Jaros, of the University of Baltimore School Of Law. Jaros has been commenting on this case from the beginning, and I’ve often made reference to his commentary. Jaros provides a good way to analyze the standard of proof required for a Depraved Heart Murder conviction:

Officer Goodson is charged with depraved-heart murder in a case that on its face seems more like negligence, whereas depraved-heart murder says that the individuals showed such wanton and reckless disregard for human life that it amounts to malice. That is a very different mens rea that the commonwealth says is akin to intentional murder. The example I use in class for depraved-heart murder is that the students stand on the roof of the law school and throw cinderblocks off the edge into a crowd below. Where they’re not aiming for anyone specifically, they don’t have the intent to kill, but they’re perfectly fine with the possibility that they might crush someone’s skull. That’s depraved-heart murder. It’s a pretty significant step from that to failing to buckle someone into a van.

This is a fundamental, and absent far more convincing and direct evidence than anyone has yet seen or been able to forecast, it’s highly likely to be an insurmountable barrier to conviction. Failing to buckle a seat belt, when hundreds of thousands have ridden in police vans without injury over decades, cannot possibly rise to the level of proof required.

If you believe that there was a rough ride and the driver not only didn’t secure [Gray] but was attempting to cause him some physical injury by driving in an erratic manner or braking sharply, then it becomes more reasonable to think that those actions could amount to depraved heart murder. To me, it would be a big step in that direction if he were in the process of giving him a rough ride, or at least deliberately trying to injure him with an understanding that there was a high probability that he’d be causing this guy’s death, and simply not caring.

Here Jaros is giving the prosecution too much leeway. It’s one thing for a prisoner to be jostled a bit by a van hitting a pothole, or stopping a bit abruptly. No reasonable officer would think any of that likely to seriously injure, let alone kill a prisoner, even one without a seat belt. Why? Because it happens all the time and virtually never results in the slightest injury.

If he simply is not thinking about the risks to his passenger, and he’s simply callously doing his job transporting people whose welfare he frankly doesn’t give a lot of thought to, I’m not even sure that amounts to recklessness. It may just be negligence. Negligence is just, you don’t do what a reasonable person would do. Recklessness is where you’re aware of what you should do and you choose not to do it.

o-FREDDIE-GRAY-2ND-PRISONER-facebook

Here too is where the Prosecution fails. There is no known evidence that Officer Goodson gave Gray a “rough ride.” It certainly doesn’t appear in his probable cause statement. In fact, the dimwitted criminal Donta Allen rode in the same van as Gray for a time, though in another compartment–he could not see or speak with Gray–and was upset, not with the way Goodson was driving, but with Gray, who was making a great deal of noise and rocking the van. Allen did not testify in the Porter case–he is, in many ways, a self-impeaching witness–and he probably won’t in this one, though Judge Williams could be reasonably expected to be able to recognize and put into the proper context any lie Allen might tell where jurors could not. This, from Jaros, is disturbing:

As the case has played out in court and the evidence we’ve seen, we haven’t gotten a lot of additional information about what happened that suggested particularly more egregious behavior by the police, which has led to some difficult questions. It’s forced the prosecutor to adopt some novel theories about criminal liability. One explanation for the aggressive effort the prosecution is making in these cases is that they believe that even more egregious a thing occurred than they alleged in court, but they simply don’t believe they have the evidence to back it up. That might explain why they are pursuing such legal strategies. At the same time, we haven’t seen it.

What Jaros is saying is he thinks the prosecution is taking this approach to the case: “I know those cops are dirty, but I have no evidence to prove it. I’m going to charge them with multiple felonies anyway. What the hell? I might get a stupid jury or two and get lucky!” This is the epitome of abuse of prosecutorial power. They know they have no evidence of a crime, but for political reasons, they’re prosecuting the officers anyway.

Jaros gets to the heart of the case:

This is a case where it turns out the crime is a crime of omission, rather than a crime of commission, at least as far as we know, because we don’t have evidence of a rough ride. It’s, ‘You failed in your duty to effectively protect the suspect.’ The law in Maryland is—it requires a level of recklessness, which may not be easy for the prosecutor to prove.

Nick and Marilyn Mosby credit: the dailymail

Nick and Marilyn Mosby
credit: the dailymail

In other words, Mosby seeks to imprison police officers because they might–might–not have done things as well or perfectly as they could have, not because they had criminal intent. Not because they actually, with forethought and malice, committed a crime, but because of what they didn’t do, even though it was reasonable not to do it.

FINAL THOUGHTS: 

Remember that Judge Williams knows all of the facts of these cases, including every cockamamie motion and theory the prosecution has tried behind closed doors with him that he wouldn’t let them use in court. Just as the probable cause statement for one officer was the probable cause statement for all, the evidence for one trial is the evidence for all. Judge Williams knows more than we know, and has shown a willingness–thus far–to play straight, by the rule of law rather than the requirements of social justice. If he does not, he will have to be persuaded by plainly unethical “novel legal theories” that cannot possibly be supported by law, making it highly likely he’ll be overturned on appeal.

One fact that has not yet been used in a significant way by the defense is that Freddie Gray was high on pot and under the influence of opiates when arrested. Expect that to become a feature of the defense case for Officer Goodson. Also expect the Defense to introduce testimony that even if Gray were seat belted, he could, as I’ve frequently written, free himself from it at will. Also expect the Defense to provide testimony establishing a motive for Gray doing exactly that, a motive that explains his accidental death: his history of “crash for cash” scams–trying to injure himself while in police custody to get a big payoff.

Because of the prosecution’s desperate charge stacking, and the interlocking elements of the charges, failing to prove one essentially dooms all.

credit wbay.com

credit wbay.com

By the very severity of the charges against him, Mosby has made Goodson the sacrificial goat. Will the mob be particularly enraged if he is not convicted? Will Baltimore, at the beginning of a long, hot summer, burn again? Of if convicted of something, will Goodson’s misfortune in any way mollify those who by the very nature of their social justice beliefs, are perpetually aggrieved?

Oh yes: expect the prosecution to do its best to breach its immunity agreement. They know Judge Williams likely won’t let them get away with that, but they’re trying these cases foremost in the court of social justice, the court of progressive public opinion. Leaking what they consider damning evidence in making motions or asking questions likely won’t lead to discipline for them, but it will help to keep the social justice pot boiling.

Advertisements