Chief Deputy Prosecutor Michael Schatzow (right)

Chief Deputy Prosecutor Michael Schatzow (right)

Closing arguments were completed this morning, and Judge Williams is scheduled to deliver his verdict on Thursday, 06-23-16 at 1000. Prosecutor Marilyn Mosby was there. WBALTV reports: 

The state’s closing focused on how any reasonable officer would have ensured prisoner safety and gotten medical help for Gray. The state said Goodson was given a hard copy of general orders, and discretion is limited to what a reasonable officer would do.

The state said it’s not an officer’s job to determine whether a prisoner is faking a need for medical help.

The state said Goodson was a field training officer who “knows more than the ordinary, average police officer.

The state challenged the notion that Gray was combative, saying he was ‘passively resisting.’ Baltimore City Circuit Court Judge Barry Williams asked the state to explain, saying that resisting arrest is akin to being combative.

The state referenced several general orders including I-9, B-12 and K-14, which says officers ‘must ensure the safety of an arrestee and must ensure necessary medical attention of arrestee.’

Goodson should’ve erred on the side of safety and taken Gray to one of several hospitals in the area of the fourth stop, the state said in its closing statement.’

While the state believes that Gray was injured between stops three and four, the defense contends it happened after that.

Prosecutors said the second-degree depraved heart murder charge is supported by Goodson’s repeated failure to seat belt Gray and call for a medic. Prosecutors said Goodson ‘breaches duties four times,’ which cut Gray’s life short.

Let’s cut through the mischaracterization and outright lies in the Prosecution’s closing. Getting a “hard copy” of general orders is meaningless. Such documents are huge and no one expects every officer to know them all, or to implement them all. In fact, every police officer knows that many general orders–or whatever they’re called elsewhere–make little or no sense and can even be dangerous if implemented in the field. Besides, being handed a book of procedures years ago proves nothing relating to this case.

It is indeed every officer’s job to assess the medical condition of prisoners. Medical faking is so common that if officers immediately and mindlessly drove everyone claiming a medical problem to the hospital, the public would be essentially without police services. Should the officers have taken Gray to the hospital when he asked for an inhaler, an inhaler he never had? Officers make such judgments every day. The question was whether judgment was reasonably applied in this case, yet the prosecution would turn the police into a medical taxicab service at the whim of criminals. As a field-training officer, Goodson knows how things are actually done and why those procedures are necessary. He, not the prosecution, knows better.

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Notice that Judge Williams did not appear to be buying the idea that unless Gray was actively trying to harm the officers, he was not resisting. This may be a good thing for Goodson and the rest of the officers.

Rather than breaching his duties, Goodson checked on Gray more often than his duties required. Why would he be repeatedly checking on him if his desire were to harm him?

In its closing, the defense likened the state’s case to a game of three-card Monte, changing theories to suit its best interests. The defense challenged the state’s ‘rough ride’ theory, saying that the state’s own expert witness debunked that theory and that Donta Allen even testified that it was a smooth ride.’

Defense attorney Matthew Fraling said that prosecutors want to create duties not listed in the general orders.

On the matter of I-9, Fraling said that general order deals with the operator of a department vehicle, not a passenger. He said there’s no general order that says the van driver bears responsibility.

The defense also said it wasn’t the van driver’s sole responsibility to seat belt Gray.

Notice Gray's apparently uninjured neck

Notice Gray’s apparently uninjured neck

This is accurate. In situations where multiple officers are assisting in placing someone in a van, or dealing with them thereafter, such things are not the sole provenance of the van driver. As long as all are acting reasonably, that’s not an issue.

Not to speak ill of the deceased, but Mr. Gray moved himself from prone position, creating a high degree of risk,’ Fraling said.

The judge asked the defense why Gray wasn’t assessed at each stop for his level of combativeness.

Fraling said it’s unreasonable to do so in a short span of time and that Gray didn’t exhibit outward symptoms of needing medical attention like lacerations, contusions and broken bones. Instead, in contrast to the state’s claims, the defense said Gray suffered a catastrophic, instantaneous injury that shut down his body.

In referencing a rough ride, we’re not ‘talking about the Dukes of Hazzard’ in reference to Goodson having failed to properly stop at a stop sign, while still maintaining a low level of speed.

The Prosecutor’s desperation is evident in this:

The state said there was no conceivable argument that Gray was combative at stops four and five of the transport van. The state said Gray didn’t kick, spit or hit any officer at the first stop of the van.

Speaking to the small size of the inside of the van, the state said Officer William Porter is two times Goodson’s size, and he picked up Gray and put him on the bench.

And is every police officer, once a prisoner has been in any way uncooperative and aggressive, required to place themself in danger, again and again, whenever they have to handle them from that point forward? Do officers start from square one every few minutes? That’s what Schatzow is arguing.

Deputy Baltimore Prosecutor Michael Schatzow credit: baltimoresun.com

Deputy Baltimore Prosecutor Michael Schatzow
credit: baltimoresun.com

This is absolutely over the line of decency and hyperbole:

The state said Gray was placed on the van’s “filthy, hard floor like an animal.

I certainly would have objected at that point. I doubt there was any showing that the floor of the van was “filthy,” and every surface of the van’s interior was hard; all were made of steel. Gray was put there for his own safety, and because he was beating himself against the interior of the van and rocking it.

This is absolutely incredible:

In the state’s rebuttal, prosecutor Michael Schatzow said that while Gray’s neck injury was catastrophic and instantaneous, his spinal cord injury was not. The state said it’s an officer’s duty to act to ensure safety and life, and if there’s a chance for survival, the officer has to act on it.

This is the argument that the damage from a nearly severed spinal cord would not manifest itself immediately, but would get progressively worse over several stops of the van. Even if that bit of unicorn farts and fairy dust were possible, that merely means the officers wouldn’t have seen signs of medical distress until late in the trip, when Gray’s symptoms were finally obvious: the final stop at the jail. The Prosecution makes this ridiculous claim only because The Narrative requires Gray to have been fatally injured between the 2nd and 4th stops, and requires the officers to have immediately diagnosed his serious injury and repeatedly ignored it. There is, of course, no such evidence. Remember that the prosecution is also claiming that the officers are not allowed to assess medical conditions. This too may indicate some aspect of Judge Williams’ thinking:

Judge Barry Williams

Judge Barry Williams

The judge drilled the state on its ‘rough ride’ theory. Williams also questioned whether an officer’s failure to get medical attention qualified to the level of neglect.

The state again argued that Goodson’s repeated failure to get medical help led to that charge.

Three legal observers were equally unimpressed with the Prosecution case:

I think that required them to establish a level of recklessness that they hoped to establish through a rough ride, and without that evidence, I think the judge indicated it was very unlikely that he could find that charge beyond a reasonable doubt,’ University of Baltimore law professor David Jaros said.

And:

Based on what I saw, I don’t believe Officer Goodson needed to testify,’ said attorney Warren Alperstein, a courtroom observer not connected to the case.

This normally means that the defense is confident that the prosecution did not prove its case. Consider too, this:

I think the prosecution decided early on that they were going to prosecute and attempted to make the evidence fit, and when the police department in their investigation showed some reluctance in that regard, it just was not acceptable to the prosecution,’ said attorney Warren Brown, a courtroom observer not connected to the case.

I think so too Mr. Brown.

The Baltimore Sun continued its apparently policy of barely reporting on the substance of the case, but this is interesting: 

The defense, in its response, said Gray ‘created the high degree of risk’ himself by getting out of the prone position in which he’d been placed in the van.

Remember that testimony was introduced in this trial that if Gray had remained in that position, he would have been safe.

Goodson acted reasonably in all of his actions, said defense attorney Matthew Fraling.

Fraling accused the prosecution of constantly shifting its theory in the case, ignoring the context of witness testimony, and asking the court to arrive at the charges alleged based on conjecture and speculation rather than evidence.

Fraling said the prosecution rode in on the ‘proverbial high horse’ of a ‘rough ride’ theory, then ‘abjectly failed’ to present any evidence that such a ride was given to Gray.

‘Once it was identified there was no rough ride, now it’s time to quickly reshuffle the cards,’ Fraling said.

This is such an important issue in this case because if there was no rough ride, the only reasonable alternative is that Gray stood up, and in response to the unremarkable forces of the van in motion, fell and injured himself. He could have done that even if seat belted because prisoners can open seat belts at will.

This, from ABC News (ignored by The Sun) also does not look good for the prosecution theory of the case–whatever it is at the moment:

During closing remarks, he [Judge Williams] seemed confused by the state’s argument that the wide right turn was a ‘rough ride,’ asking, ‘Can we not agree that taking a turn wide is less dangerous?

He refers to the brief video to which I’ve previous referred showing a white police van making a slightly wide turn, obviously to avoid a large vehicle parked at the curb.

He also asked prosecutors why Goodson stopped to check on Gray if it was his intent to give him a ‘rough ride.’ Surveillance footage during the ride shows Goodson stopping the van, walking to the back, looking in, returning to the front, and getting back behind the wheel.

Remember too that Gray was, at various points, banging and rocking the van, which would cause any rational officer to check on him.

Another ABC News story covered the statements that The Sun ignored:

But in closing, prosecutor Jan Bledsoe didn’t mention a ‘rough ride,’ and instead told the judge it was Goodson’s inaction— his failure to call for help or buckle Gray into a seat belt — that shows his intent to do him harm.

‘Officer Goodson never calls a medic, he never takes Freddie Gray to a hospital,’ she said. ‘He breached his duty and because of that breach, Freddie Gray’s life was shortened.

Again, the prosecution argues that what Goodson didn’t do, rather than what he did, was the cause of Gray’s death. How this can rise to the level of recklessness and intent is beyond me.

Gray’s death was ‘a completely unnecessary homicide of a young man who was killed by the inaction of Caesar Goodson,’ he [Schatzow] declared.

Homicide by doing nothing. There’s another “novel legal theory” by the prosecution. This falls into the “not good” category for the prosecution:

The judge asked Schatzow to explain the state’s rough ride theory.

‘Are you aware there has to be intent?’ Williams asked. ‘The state brought it into the world. You’re the one who said it. What did you show” to prove it?

Surely Schatzow had a convincing reply, a recitation of volumes of irrefutable evidence? Not so much:

Schatzow repeated that the lack of a seatbelt proves Goodson ‘intended for there to be consequences.

Remember that virtually all the seatbelt testimony in this case went against the Prosecution. Begin with the fact that vans don’t come equipped with seatbelts, to the State’s prize witness admitting that prisoners can open belts and even it used, they don’t secure people. Add in the common knowledge that officers rarely, if ever, use them, yet hundreds of thousands of people have been transported without the slightest injury, and it’s rather hard to demonstrate that not using a seatbelt amounts to intent to cause death.

Notice how far the prosecution went; imagine their sheer panic:

Even Schatzow pulled back on alleging that Goodson intended to kill Gray. He accused Goodson of making one of the stops out of concern that he’d gone too far in inflicting injuries. ‘The fact that he stopped shows there was a consequence greater than he anticipated and he had to figure out what to do,’ the prosecutor said.

The judge countered that the stop could be seen as concern for Gray’s well-being.

Goodson had “…gone too far in inflicting injuries.” There was not, in this trial, a shred of evidence tying Goodson to so much as an abrasion on Gray.   Such a statement will not only outrage every Baltimore Police Officer, but will destroy what little credibility–if any–Schatzow has left. But that’s what happens when prosecutors file cases without the evidence necessary to prove them. They find themselves having to say more and more crazy and unethical things. They find themselves pulling theories out of their legal briefs.

FINAL THOUGHTS:

credit: insider.foxnews.com

credit: insider.foxnews.com

Remember please, gentle readers, we’re only seeing a fraction of what was said in the closing arguments. We don’t get to hear the speaker’s voices, see their body language, directly assess their credibility as human beings or advocates. We can only make inferences from whatever trail of breadcrumbs the media sees fit to drop for us.

Even so, Judge Williams’ questions, if they are honest concerns rather than a mere attempt to appear suspicious before he ignores the evidence and convicts Goodson anyway, suggest he thinks the prosecution nowhere near the legal standards necessary to prove its case.

The potentially good thing about the charge stacking in this case is that the charges overlap so much. Failure to prove the most serious charge is essentially failure to prove every charge, if Judge Williams continues to think and apply the law, and reason as he did in the Nero trial. The potentially bad thing is that so many charges might allow him to build a more or less appeal-proof justification, no matter how weak, for conviction on something.

Again, I say this with imperfect knowledge of the evidence, but based on what I know, there can be no rational, just verdict but not guilty on all charges. We’ll see soon enough.

UPDATE, 06-21-16, 1310 CST: It appears The Baltimore Sun finally published a somewhat more complete account of the closing arguments, and particularly Judge Williams’ response to them: 

Williams asked Schatzow which of Goodson’s actions created a high degree of risk for Gray, and what evidence the state had produced to show a rough ride had been given. Schatzow said it was a combination of things — including the handcuffing and shackling of Gray and the failure to restrain him in a seat belt.

Notice again that the prosecution is trying to convict not on what Goodson did, but on what he didn’t do.

Williams asked whether a rough ride requires intent, and what evidence there was to show that intent. ‘The state said to the world, ‘It’s a rough ride,” he said. But, he asked, could the injuries be consistent with a simple accident?

Schatzow said city surveillance video showed Goodson rolling through a stop sign and making a wide right turn, crossing the center line in doing so. Less than a block away, Goodson stopped and went to the back of the van to check on Gray without announcing the stop as required over the radio. Not long after, he radioed asking for help checking on Gray.

Schatzow said ‘logical inferences’ could be made from the sequence of events during the ride that Goodson ‘intended for it to have consequences.

Schatzow is making no sense at all. The evidence of a rough ride is “it’s a rough ride”?

Williams looked incredulous, and asked why Goodson would stop the van to check on Gray if his intention was to harm him.

‘If you’re trying to give him a rough ride, what sense does that make?’ he said.

Schatzow said ‘there was a consequence greater than anticipated, and he needed to figure out what to do about it.

The Defense pointed out that the Prosecution is demanding that Williams decided the case on inference and supposition instead of evidence, and Schatzow is plentifully supporting that position.

Williams also questioned Schatzow on the criminality of Goodson’s decision not to call a medic for Gray. He asked Schatzow if Goodson’s decision still would have constituted criminal negligence if Gray had not been injured. He also asked whether any officer who fails to call a medic for a person who requests one has committed a crime.

Again, Schatzow dodged the Judge’s question:

Schatzow said he was ‘not here to make general pronouncements,’ but that Goodson’s actions, under the given circumstances, would have been criminal even if Gray had not been injured.

It is normally the Defense reduced to making nonsensical arguments, but in this case, it’s the Prosecution. No rational prosecutor would make such an argument because if successful, it would produce a horrific and destructive precedent: any officer that did not immediately take a criminal to the hospital the minute he so much as suggested a desire to go there, would be liable for criminal–and civil–prosecution. And consider the idea that a crime would be committed even if no one was injured. Lunacy.

Notice the substantive difference in Defense answers to Williams’ questions:

Williams questioned Fraling at times, including when Fraling tried to raise doubt as to whether Goodson, as the van driver, was solely responsible for Gray’s safety and the decision not to restrain him in a seat belt.

Given that Goodson at some point had to ‘drive off’ alone with Gray in the back, ‘who else is supposed to figure that out?’ Williams asked.

Fraling said Goodson was responsible for Gray’s safety at certain points but that the decision not to restrain him in a seat belt was repeatedly made collectively with other officers and with various factors in mind — including that Gray had been combative at previous stops.

Fraling’s explanation is precisely the way police officers work, and must work, and was a direct answer to Williams.

Prosecutors questioned the assertion that Gray was combative and therefore a threat to the officers, noting that Porter, who testified in the case, said that Gray was docile at the van’s fourth stop. Bledsoe noted that it was undisputed that Porter told Goodson that Gray needed to go to the hospital.

Fraling pointed to that contention as just one of many in which prosecutors were being ‘disingenuous,’ attempting to have the court consider evidence without its proper context. He said Porter said Gray should go to the hospital because of ‘administrative concerns’ that he wouldn’t be accepted at Central Booking — that is, that he was ‘malingering’ — and not because he was injured. He said Goodson never believed Gray was injured during his transport through the city.

This too is rational and realistic. Police officers often end up taking prisoners to the hospital, not because they believe for a moment they need it, but for administrative, cover-their-asses reasons, such as a booking facility will demand it for the same reasons. That was the case with Freddie Gray.  Goodson would have taken Gray to the hospital if he hadn’t been redirected to pick up Donta Allen.  Because neither Porter or Goodson believed Gray was in real medical distress, there was no reason not to pick up Allen.

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