The Freddie Gray Case, Update 35.6: The Prosecution Suborns Perjury

credit: legalinsurrection

Now we know. From nearly the beginning of this case, such as in Update 5: Probable Causeless, I’ve written that the warrant affidavits–the probable cause statements supporting the requests for warrants for the arrests of the officers–were devoid of probable cause of any crime. In fact, they were virtually identical, cut and pasted, having no specificity toward the supposed crimes committed by the individual officers.

Major Sam Cogen
credit: baltimorecity.org

I’ve repeatedly written that the man that signed the affidavits, Major Sam Cogen of the Baltimore City Sheriff’s Department, had no apparent involvement in the investigation and therefore, by signing the affidavits, was essentially committing perjury. Anyone signing such a document swears that everything in it is not only the truth, but the complete truth. If he had no actual knowledge of the investigation, claiming that he did by signing those affidavits, was essentially, and in fact, perjury.

Now we know; he had no involvement at all. Fox Baltimore.com reports (thanks to regular reader Marc for the media links!):

Maj. Samuel Cogen of the Baltimore City Sheriff’s Office, who sought charges against the six Baltimore City police officers in the Freddie Gray death case, said in a federal affidavit that he never even investigated the case.

In the affidavit, Cogen admitted that even though he signed the application for the six officers’ arrests, he played no role in the investigation. Cogen told the court that State’s Attorney Marilyn Mosby asked for his assistance. ‘I did not take witness statements, collect evidence or investigate in any other capacity,’ Cogen wrote.

Uh-oh. This is a masterpiece of understatement:

Legal analyst Warren Brown called the finding disturbing.

‘Cogen didn’t have any knowledge about any of this,’ Brown said. ‘This was worked up by the State’s Attorney’s Office and presented with a bow on it for his signature.

It gets worse. Via The Baltimore Sun: 

I was also presented with a narrative that formed the basis of the application for statement of charges that I completed by the State’s Attorney’s Office,’ said Cogen, who swore out the warrants. ‘The facts, information and legal conclusions contained within … as well as the charges lodged against plaintiff came entirely from members of the State’s Attorney’s Office.

This is not quite correct. Cogen signed affidavits that provided the probable cause for warrants to be issued. His signature, done May 1, 2015, appears under this:

I solemnly affirm under the penalties of perjury that the contents of the Application are true to the best of my knowledge, information and belief.

Here’s another masterpiece of understatement–and irony:

The affidavit sheds new light on the State’s Attorney’s investigation into Gray’s death, which was independent of police and led to rare charges against police at a time of heightened scrutiny across the country of law enforcement.

Not that Cogen, who is being sued by most of the officers for false arrest and defamation, is willing to take responsibility for what he actually wrote:

But while distancing himself from the investigation, Cogen also maintains the charges were supported by ‘sufficient’ probable cause and that it was reasonable to defer to prosecutors’ determinations.

Take the link to Update 5 and see for yourself, gentle readers, whether there was “sufficient” probable cause. The timeline of the rush to arrest is now becoming much clearer:

Cogen on June 7 asked that the lawsuit counts against him be dismissed, and filed an affidavit explaining that he had a minimal role.

Cogen said that the State’s Attorney’s Office asked for assistance in the case on April 23, four days after Gray died and a week before charges were announced. ‘On or about the same day,’ he says, he was presented with items to review from Bledsoe and Schatzow.

‘My involvement was limited to a review of the fruits of the investigations done by the Police Department and State’s Attorney’s Office,’ Cogen said.’

Prosecutors Michael Schatzow (umbrella) and Janice Bledsoe (red scarf)

Cogen said he was shown a chart identifying ‘the charges to be brought, the evidence supporting those charges, and the related legal analysis’ which was explained to him by Schatzow and Bledsoe. He was also given a narrative that formed the basis of the information entered on the warrant.

Cogen said he made ‘few changes,’ and Schatzow accompanied him to a District Court Commissioner’s office and made a ‘last minute change to the application involving the medical examiner’s description of the injury sustained by Freddie Gray.’ The medical examiner’s office did not make a final ruling on Gray’s cause and manner of death until April 30.

Cogen said he did not participate in arresting the officers, and was asked to attend Mosby’s press conference at the War Memorial building. ‘I declined,’ he wrote.

That was probably the only smart thing Cogen did in this entire unlawful, unethical, unprofessional mess.

Cogen, who is being represented in the lawsuit by the attorneys from the city solicitor’s office, said he is entitled to immunity and that the Supreme Court prohibits second-guessing of probable cause statements with the benefit of hindsight.

Immunity does not, however, protect people who commit perjury.

Cogen says Deputy State’s Attorney Antonio Gioia told him that the knife recovered from Gray was legal — a contention prosecutors have since backed off from. Of the legality of the knife, Cogen’s attorneys wrote: ‘The knife was lawful under Maryland state law and he, as a non-lawyer and a sheriff who does not engage in routine enforcement of City ordinance violations, relied on the considered judgment and determination of a deputy prosecutor as to the knife’s legality.’

‘This is the very situation for which such a strong preference for qualified immunity for law enforcement officers was created,’ assistant solicitors Jason R. Foltin and Sara E. Gross wrote.

‘It was eminently justifiable for Major Cogen to conclude that the information he obtained from the Office of the State’s Attorney as a result of its independent investigation was accurate and complete, and that the legal conclusions of prosecutors were proper,’ they said.

Analysis/Translation:

As I’ve so often noted in this case, what is significant is not necessarily what the State said and did, but what it did not say or do.

Normally, any case is assigned to a single detective to investigate. In larger cases requiring more manpower, several detectives may be assigned, with one detective designated the lead investigator. After they have done a complete investigation, they determine whether any crimes have been committed, and whether there is probable cause for arrest. Professional detectives also consider issues of proof beyond a reasonable doubt. Why waste a great deal of time and money pursuing a case if they know the prosecution isn’t going to file charges, and if they were dumb enough to file charges, would lose?  This level of professionalism requires direct and willing cooperation between police and prosecutor.

If there is PC, and if they think they have a strong case with sufficient evidence to prove the charges beyond a reasonable doubt, only then do they file an affidavit–one per person to be arrested–specifically and completely laying out the probable cause to believe that specified crimes have been committed and that the person to be arrested committed them.

The person completing the affidavits is always–always–the detective that did the investigation. Only that detective can sign the affidavit and its affirmation, because he is the only one that knows all the facts, the truth of the matter. In a larger case where multiple detectives have worked the case together, more than one detective may know enough to reasonably sign a PC affidavit.

It is often a matter of official policy that only the investigating detective may complete a PC affidavit. It is certainly a universal matter of professional practice.

As I’ve previously written, administrators never sign PC affidavits because they do not do investigations. They are supervisors, paper pushers, media spokespeople, politicians in police suits, long separated from real police work. Anyone signing a PC affidavit without having done the complete investigation is committing perjury, because he or she cannot affirm that everything in that affidavit is true. They just don’t know. Their affirmation is not of their knowledge or information, but might be of their belief. That’s not enough.  It doesn’t matter what a prosecutor told Cogen or which documents he “reviewed,” he didn’t know–couldn’t know–if any of it was accurate or true.  As I’ve been explaining for more than a year, much of it wasn’t true.

Timeline:

With Cogen’s admission, the timeline is now much more clear:

April 12, 2015: Freddie Gray is arrested and injured.

April 19, 2015: Freddie Gray died.

April 23, 2015: Major Cogen was given documents, including The Narrative, to review. From that moment, he was working with the Prosecutors.

May 01, 2015: Major Cogen signed the affidavits requesting arrest warrants for the six BPD officers.

Final Thoughts:

Det. Taylor
credit: baltimoresun

As I noted repeatedly in Update 5, the PC statements did not read as though they were written by a police officer. They were full of odd syntax, and over and over, the reader was bludgeoned with seatbelts. We now know the text of the PC statements was not written by Major Cogen or any other member of the Sheriff’s Department or the Baltimore Police Department. In fact, the BPD, because Detective Dawnyell Taylor was insisting on following the law and considering all the evidence, was shut out of the “investigation,” which was conducted entirely by the prosecutor’s office.  Cogen merely copied The Narrative, the same social justice narrative that has driven everything since the day of Freddie Gray’s arrest.

It should now be impossible for Judge Williams to prevent Defense attorneys from forcing prosecutors to testify.

There can no be no doubt that the prosecution rushed to file charges and worried about proof later. The charging decision was entirely political, having nothing to do with the rule of law, and made long before any competent investigation could have been completed.

What of Major Cogen? Is he culpable? Damned right he is.

I don’t know the Major’s prior experience, but if it is like many in police administrative ranks, he shot up the rank ladder, spending a little token time in various positions to pad his resume. If he was ever a detective, he, like most administrators, would be unlikely to be a highly capable one. If he ever was a competent investigator, he absolutely should have known better.

When approached by the prosecutors, he should have been very suspicious indeed. Their mere approach should have made him uncomfortable. Prosecutors don’t involve administrators in daily tasks like filing PC affidavits–ever. Cogen should also have been very much aware of the political ramifications involved, not only between the prosecution and his agency, but between the BPD, and between everyone in the criminal justice system and the public. He should have asked why the investigators assigned the case weren’t handling such daily, common tasks.

Perhaps he did. Perhaps the prosecutors brought him into their conspiracy and enlisted his help. Perhaps Cogen even brought the Sheriff in on it, and he told Cogen to proceed. In any case, Cogen made a continuing series of very bad choices.  He should have known better.

The Prosecution must have known that Cogen, because he had nothing to do with the investigation, could not honestly produce and sign the affidavits. They must have known that in asking that of Cogen, they were suborning six counts of perjury, and that if Cogen went along, he would be committing six counts of perjury–six felonies. They must have known. Of course, they also knew that the people responsible for prosecuting Cogen for perjury would be the very people that suborned it: them.

So why would they do that? Because they knew the Baltimore PD would not play along. They had not done a complete, competent investigation, and were in fact doing their best to hide evidence and cover up their incompetence by trying to get Det. Taylor removed from the case. They also knew the rank and file of the Baltimore City Sheriff’s Department would not play along, if for no reason other than that they had no involvement whatever in the pathetic investigation and as a matter of professional practice, would therefore never file or sign a PC affidavit.

credit: baltimoresun.com

The officers suing Marilyn Mosby and Sam Cogen are right. They were falsely, and with malice, arrested. They were, with malice, defamed. The prosecution, and Cogen, probably thought they were immune to prosecution, untouchable. They may be right. The courts may give them absolute immunity.

There is, however, more than sufficient reason to allow the civil cases filed against them to proceed. This is almost certainly just the tip of the iceberg–more malice and malfeasance will likely be revealed–and will have ramifications in the remaining criminal trials and the civil cases as well. I’d be surprised if the Goodson Defense team hasn’t already approached Judge Williams about this.

More of the pieces fall into place. This is, without any doubt, a malicious, unethical, political persecution. Judge Williams should end it all, now.

NOTE:  By all means, stop by Andrew Branca’s parallel article at Legal Insurrection.  Great stuff.