The hits just keep on coming. In cases driven by the social justice Narrative, it’s not uncommon for supportive media outlets to eventually have to provide some honest coverage, so outrageous becomes the conduct of prosecutors and politicians as The Narrative, and their very reasons for existing, becomes indefensible. So it has come to pass in the Freddie Gray case for The Baltimore Sun:
The lead Baltimore police detective in the Freddie Gray investigation said she reluctantly read to grand jurors a summary of evidence provided by prosecutors that she believed was misleading, according to police records reviewed by The Baltimore Sun. [skip]
Detective Dawnyell Taylor said in a daily log of case notes on the investigation that a prosecutor handed her a four-page, typed narrative at the courthouse just before she appeared before the grand jury.
‘As I read over the narrative it had several things that I found to be inconsistent with our investigation,’ Taylor wrote, adding: ‘I thought the statements in the narrative were misquoted.’
But, she wrote, she was ‘conflicted’ about challenging the state’s attorney on the narrative in the courtroom. ‘With great conflict I was sworn in and read the narrative provided,’ she said in her notes.
When the jurors asked questions, including whether Gray’s arrest was legal, Taylor wrote that prosecutors intervened before she could give an answer that would conflict with their assessment.
I’ll bet they did. At this point, gentle readers, it’s important you understand how the criminal justice system works–how it must work–if there is to be a rule of law.
Patrol officers take initial reports of crimes and if they have time, conduct brief, cursory investigations. The focus of all patrol officers is to be available, to the greatest extent possible, to take calls. Usually the next morning, those reports are given to detective supervisors who disseminate them to the appropriate detectives. It is then up to them to fully investigate each case and either close it due to lack of evidence, or send the completed investigation to prosecutors with a recommendation for charges.
In more serious cases that require an accelerated resolution–because Freddie Gray died in custody and because of the political implications, that case would qualify–multiple detectives are commonly assigned to make it possible to complete the work more quickly, but there is always a detective in overall charge. It’s their case; everyone else is just assisting.
In such cases, detectives and prosecutors work closely together, meeting often to make sure the investigation can provide everything the prosecution needs to obtain convictions. Normally, there is no conflict in such endeavors. If there is insufficient evidence for arrest or conviction, arrests aren’t made, trials aren’t held, and everyone moves on to the next case. Detectives and prosecutors are always more than busy and don’t have time to worry about cases they will inevitably lose. However, prosecutors never play detective. They stick to their function, and detectives stick to theirs.
Competent prosecutors and detectives often work with defense attorneys. I often hand-walked reports and updates to defense lawyers–with the knowledge and agreement of prosecutors–because doing that would almost always cause the Defense to beg the best plea bargain they could get. Giving them the latest bad news and gently kidding them about their guilty-as-sin clients was a good tactic that helped keep the system working smoothly.
Any prosecutor with a good case delights in giving full discovery to the defense; it’s entirely to their advantage. This is normally so because professional prosecutors do not file cases they know they can’t win, or even cases they have a substantial possibility of losing. This is so not only because they want to have high win records, but because it’s an enormous waste of scarce time and money, to say nothing of being unethical, to do otherwise.
It is always–always–detectives, not some uninvolved body in a police suit, that present information to any jury, grand or otherwise. This is so because the detective responsible for the case is the sole person that best knows and understands the case and everything about it. He or she is the one person that can answer any grand juror’s questions, and it is he or she that will be most convincing. Prosecutors never hand a detective a “narrative” and ask them to read it. It’s unnecessary, because what the detective is testifying to is his reports–his findings–which are always a part of the trial record.
If a prosecutor handed me a “narrative” before I went before a grand jury and asked me to mindlessly read it, I would have refused, because I could not have sworn that I was telling the whole truth.
Keep in mind that a prosecutor’s office is an agency independent of any police agency. The power relationship tends to be in favor of the prosecutors, who may be able to do great, perhaps fatal, damage to the career of any police officer. Det. Taylor’s reluctance to call out the prosecutors before the Grand Jury is a reflection of this power imbalance, as is the punitive attempt by prosecutors to remove her from the case.
Taylor’s case notes were provided to The Baltimore Sun anonymously, and Sun reporting verified their authenticity. Portions of the notes, which span a four-month period beginning with Gray’s death on April 19, 2015, were discussed in court during testimony at the trial of Officer Caesar Goodson Jr. Taylor’s account of the grand jury proceedings was not discussed. [skip]
Taylor testified in the Goodson trial that she turned her notes over to defense lawyers, who objected that prosecutors didn’t provide them first. Prosecutors said in court that they didn’t have the notes. Taylor later testified that she offered to provide her notes but that prosecutors didn’t want them.
There is every reason to believe Taylor in this, including her contemporaneous notes, which she, as every experienced detective would have done, was recording to cover herself. There can be no doubt she smelled a rat and was doing what she could to protect herself when, not if, things blew up. I suspect she also left copies of all of these notes, and probably other documents, with a safe person or persons in case anything happened to her. That’s what I would have done.
We now know, as I outlined in Update 35.6 the Baltimore City Sheriff’s Department did not, as Mosby claimed, conduct the Prosecutor’s “investigation.” In fact, Major Sam Cogen has testified under oath that he had no involvement whatsoever, yet he, at the instigation of prosecutors who, as with Det. Taylor, gave him a narrative about which he knew nothing, swore and signed probable cause affidavits that resulted in the arrest of the six officers.
It is difficult to explain to the layman how irregular, and prone to cause all manner of problems this kind of behavior on the part of prosecutors is. It turns every safeguard in the system upside down and implicates everyone involved in malfeasance.
Taylor’s case notes shed light on the grand jury process, which by law is secret.
She said that Deputy State’s Attorney Janice Bledsoe handed her a narrative on the afternoon she appeared before the grand jury. She thought she would have a chance to talk to Bledsoe before testifying, but that didn’t happen.
Bledsoe could not be reached to comment.
Taylor wrote in her notes that she believed some portions of the narrative were misleading, likening the situation to telling grand jurors that investigators had shown a witness a photo lineup but not telling them that the witness failed to pick out a suspect. She didn’t specify what evidence she felt was misrepresented.
When members of the grand jury began to ask questions about the case, Taylor wrote, prosecutors intervened and answered from their perspective.
‘It was at this time that I realized that she did not intend for me to answer any questions because all of my answers would obviously conflict with what I had just read to them,’ Taylor wrote.
Taylor noted that she told the grand jury she was only reading the statement and that this was not her investigation.
Why would Taylor do that? Because she realized that she had just lied under oath to the Grand Jury, and those lies were being demanded and sustained by the Prosecutors, thus, her notes. Notice that Taylor laid low; she did not bring any of this up, until attacked on the stand by Schatzow during the Goodson trial. Schatzow opened the door, forcing Taylor to defend herself. That attack was a direct, unwarranted attack on her credibility, which is all any detective–any police officer–has. If their testimony in court is not credible, they’re useless. This is why police and prosecutors are very careful to be certain they’re on the same page, not just because prosecutors don’t want to be surprised in court, but because they all have to work together and the credible testimony of police officers is essential, not only for convicting criminals, but for the integrity of the entire criminal justice system. If the public can’t believe that the police are their honest, impartial servants, the thin blue line between civilization and anarchy is broken.
The common axiom that a prosecutor can get a grand jury to indict a ham sandwich refers to the fact that the burden of proof for indictment is lower than beyond a reasonable doubt, and prosecutors have the power to present only the evidence they choose to present. The Sun’s article seems to go off the rails here:
In most cases, the state’s attorney’s office chooses an uninvolved officer to present the case to the grand jury by reading from charging documents prepared by police, according to former Baltimore homicide detective Joshua Ellsworth, who is not involved in the Gray case.
‘I have never heard of the [state’s attorney’s office] providing an investigator with a prepared statement,’ said Ellsworth, who is now an associate instructor at Indiana University’s department of criminal justice.
It appears The Sun has misquoted Ellsworth. Testimony is not given by “uninvolved” officers, but by the detective(s) that investigated the case. Otherwise, the Grand Jury’s questions couldn’t possibly be answered, and police and prosecutorial credibility with the grand jurors would be non-existent. Like Ellsworth, however, I too have never heard of prosecutors giving an investigator a prepared statement–a narrative. It’s always the other way around: the police give prosecutors their investigative reports, which the prosecutors use to tell the story of facts and evidence.
Police and prosecutors may differ on their theory of the case, he said, but detectives are there to answer questions in an unbiased manner. He said it’s the responsibility of prosecutors to take those facts and ‘come to some sort of conclusion about whether to seek charges.
Quite so. It’s not their job to investigate or serve as writers of fiction.
Robert Bonsib, a former state and federal prosecutor who has extensive experience with grand juries, said there is ‘no standard answer’ for how witnesses should be handled by prosecutors. He said prosecutors often meet with witnesses before they appear in grand jury proceedings to discuss how they plan to convey what they know and how to handle certain questions.
What this means is that prosecutors normally meet briefly with anyone that will testify and ask them if the statements they gave to the police are accurate, and determine if there is anything else they want to add, or anything they think is inaccurate they need to correct. Again, prosecutors don’t want to be surprised in the presentation of their case. They do not encourage people to lie–that’s a felony–nor do they tell people what to say. That’s unethical.
Taylor’s notes indicate that she had concerns about prosecutors early on. She complained that in meetings before charges were brought, “it was clear that [Bledsoe] did not need to listen to any of the evidence as she had made up her mind to charge these officers.
Again, this is indicative of Taylor’s wise decision to make contemporaneous notes to protect herself. Once a prosecutor jumps the ethical tracks, they become dangerous, not just to defendants, but to honest police officers.
The Sun, which was given exclusive access by the Police Department to observe its investigation last spring, reported that police believed unanswered questions remained in the case when they were caught off-guard by the prosecutors’ decision to charge.
The day after the Police Department turned over its preliminary investigative findings to prosecutors, Mosby announced the charges against the officers.
It is common for investigations of cases of this importance to go on for months, sometimes, years. Merely identifying, finding and interviewing every possible witness is a very time-consuming matter. During the interview process, investigators inevitably learn things that cause them to have to re-interview people with whom they have already talked. The mere fact that the police considered the information given to the prosecutors to be preliminary–any competent prosecutor would have understood that merely by all of the unanswered questions–would have left them dumbfounded when Mosby announced charges the next day. This also supports Taylor’s contemporaneous notes. The prosecutors made up their minds long before the investigation was complete and tried to make up theories to make their lack of evidence work.
Live at ATT.net reports on Mosby’s ethical obligations:
Is it ethical for Baltimore’s top prosecutor, who staked her reputation on charging six police officers in the death of Freddie Gray, to keep trying for a conviction? Legal experts said Friday that State’s Attorney Marilyn Mosby is obligated to consider this question.
Mosby seemed devastated after the trial judge found no evidence a crime was committed when the young black man’s neck was broken in the back of a police van.
This raises, as I have consistently raised, the question of whether Mosby understands the ethical issues, or whether she simply chooses to ignore them. Mosby had no prior prosecutorial experience before being voted into office, and the actions of Chief Deputy prosecutor Michael Schatzow and Janice Bledsoe do not give one confidence that anyone at that office is predisposed to ethical knowledge or behavior.
Stressing the ethical demands of her office and repeatedly invoking the civil unrest, Mosby vowed then to represent the aggrieved citizens of Baltimore who ‘experienced injustice at the hands of police officers.’
‘To the people of Baltimore and the demonstrators across America: I heard your call for ‘No justice, no peace,’ she declared, her voice rising in righteousness and outrage. ‘You’re at the forefront of this cause and as young people, our time is now.
Not only did Mosby throw the police–every Baltimore police officer–under the bus, she drew racial and cultural battle lines and put herself on the side of social justice warriors. As I noted in Update 6, “our time is now” to do what, exactly? As we now know, it was not time to do justice. This is interesting:
I think she understands her ethical obligations,’ said University of Baltimore President Kurt Schmoke, who had Mosby’s job in the 1980s before serving as the city’s mayor.
‘If I were in her position, I’d take the next couple of days to reevaluate the cases under these new circumstances. If she felt that the rest of the evidence that she has is not as strong as she felt last May, then I would think she would probably conclude that she shouldn’t proceed,’ Schmoke said.
Schmoke, a long-time fixture of Baltimore Democrat politics, is yet well-respected by the Democrat establishment. Mosby would be wise to listen to him.
The job of a prosecutor isn’t to obtain a conviction at all costs,’ said David Weinstein, a defense attorney who spent 10 years as a state prosecutor and another 11 as a federal prosecutor. ‘It’s right for a prosecutor to strike hard, but they need to be fair.’
‘Her decision was to jump quickly into a prosecution of these police officers, and as a result she didn’t have all the evidence in front of her,’ Weinstein added. ‘She needs to reassess what she’s going to do.
The obligation of a prosecutor is always to see that justice is done. This often means not filing charges, and sometimes means dismissing them.
This is particularly ironic:
Attorney Eric Schaffer, a former county prosecutor in Maryland, said ‘proving a negative is always hard, and proving a criminal intent where there’s no overt act is always extremely difficult.’
Schaffer said he was stunned when Mosby, just weeks into her job, charged the officers just 12 days after Gray’s death. His office spent months investigating much less complex cases, he said.
‘As a prosecutor, in my opinion, you shouldn’t be in a rush,’ he said. ‘Take your time and analyze it and don’t let political pressure force you into doing something that’s not right.
Schaffer is correct. Incompetent prosecutors and police supervisors and administrators are always pressing to hurry up. Professionals know better. There is virtually never any need for haste, which virtually always causes mistakes and loses trials.
This week will provide answers about Mosby, Schatzow, Bledsoe and every other prosecutor that worked on this case. Are they truly unethical social justice partisans willing to break any rule, any law, to harm innocents as demanded by The Narrative? Are they capable of recognizing when they have no case, and if so, why did they file charges in the first place? Are they driven entirely by ego and raging hatred, or capable of acting professionally?
These new revelations about the Grand Jury open the prosecution up to charges of subornation of perjury and other, lesser, breaches of ethics. Keep in mind that perjury charges are filed far less often than most people know because it is, in most cases, a difficult charge to prove, but even failing that, the unethical behavior of the prosecution seems to know no bounds. In any case, the Defense has been handed another powerful weapon in court, and in any potential appeal. In addition, the attorneys in the civil suits against Mosby and Cogen are surely rejoicing.
All three “novel legal theories” of the prosecution have been crushed. The prosecutor might scream at Lt. Rice and Sgt. White “you were a supervisor; you had greater responsibility,” but Judge Williams has already ruled that failing to seat belt Gray did not cause his death, and was not criminal. How does greater responsibility for not causing Gray’s death or not committing a crime help the prosecution?
As I’ve often written, rational professional prosecutors would dismiss the cases, but rational, professional prosecutors would never have asked an uninvolved Sheriff’s administrator to file false PC affidavits or given a false narrative to a grand jury. A competent administrator would never have done it.
As this case was filed for political reasons, it will continue or die for political reasons. We’ll see soon enough, but I do not expect Mosby to dismiss.
PREPOSTING UPDATE: Lt. Rice, Sgt. White and Officer Miller’s attorneys have filed motions for dismissal and asked for grand jury transcripts. I’ll report on this as more information becomes available.