The Freddie Gray Case, Update 35.7.4: Live By The Narrative, Die By The Narrative–UPDATED

credit: time.com

As I’ve suggested repeatedly, Baltimore Prosecutor Marilyn Mosby never should have filed charges against any of the officers. After a hung jury and two complete failures to convict, and considering that Judge Barry Williams, who will hear the remaining cases, wiped away the prosecution’s three “novel legal theories,” leaving them no plausible theory under the law with which to convict anyone, any rational prosecutor would have dismissed the remaining cases. But this is not any normal case, and Marilyn Mosby is a certified, card carrying social justice warrior. Remember this from Update 11: 

However, the pressure on Mosby, in the criminal and civil realms–and with the state Bar–is building, as the Baltimore Sun reports: 

Three of the four Baltimore Police officers still awaiting trial in the arrest and death of Freddie Gray have filed fresh motions asking that their cases be dismissed based on alleged ‘defects’ in the prosecution, according to court records.

Those defects, the officers’ attorneys have argued, relate to two recent disclosures — one by a Baltimore sheriff’s major [Update 35.6], who said he agreed with prosecutors to sign off on the officers’ charges without personal knowledge of their foundation; and another by a police detective [Update 35.7.3], who said prosecutors prompted her to provide misleading testimony to the grand jury that indicted the officers.

Attorneys for both Officer Garrett Miller and Sgt. Alicia White argued in nearly identical motions Monday that the disclosures show prosecutors violated the officers’ constitutional right to due process, and that the charges against them should therefore be dismissed.

Attorneys for Lt. Brian Rice, the next officer scheduled to stand trial, starting July 5, also filed a motion requesting dismissal based on prosecutorial defects, though that filing was not immediately available on Tuesday.

These motions, if there is sufficient evidence to support them, are sufficient grounds for dismissal of the cases. Many criminal cases have been dismissed for less substantial concerns. Should Judge Williams not dismiss, this will be a powerful matter on appeal, should one become necessary. I doubt that Judge Williams will dismiss. I suspect he is determined to have every trial, even though he certainly knows that there will be no evidence to convict the remaining officers. His standing in the community, and to whatever degree this is important to him, among his race, demands plausible deniability. He must be able to say that he let the people have their say in every trial. What he fails to understand is that social justice/Black Lives Matter cracktivists could care less about the niceties of the criminal justice system. They want blood and money–social justice–and anyone failing to deliver it is an enemy and race traitor. They can never be satisfied and are perpetually aggrieved.

It is also interesting to note that Mosby may be compelled to fight to the death in the criminal cases, figuratively speaking, because of the civil suits. Her only hope there, if her immunity is breached, is to have at least one conviction to hold up as weak proof her persecutions were actually prosecutions.

Major Sam Cogen
credit: baltimorecity.org

As I reported in Update 35.6 Major Cogen, apparently in a civil suit deposition, admitted he had no involvement at all in the Freddie Gray investigation, and that all the materials given him were written by the prosecutors. If any other Sheriff’s personnel were involved, the prosecutors would surely have turned to them to file the PC affidavits, but the Prosecutors turned to Cogen, perhaps because they suspected he would be a willing dupe.

Det. Taylor
credit: baltimoresun

As I also reported in Updates 35.7 and 35.7.3 Det. Dawnyell Taylor was attacked on the stand by Chief Deputy Prosecutor Michael Schatzow. She had not said a word about her differences with the prosecution, but this forced her to defend herself. Her defense, which I have no reason to disbelieve, revealed that the prosecution made up their minds to charge the officers first, and to find evidence later, refusing to accept any contrary evidence. They even tried, unsuccessfully, to get Taylor removed from the case.

It was also revealed that she kept contemporaneous notes. In those notes, she revealed that the prosecutor handed her a narrative shortly before her grand jury testimony that was, as she characterized it then, “mlsleading.” She read it to the grand jury, but told them it was a narrative given her and not her investigation. When the jurors tried to ask her questions, the prosecution intercepted them and would not let her answer. She noted then her answers would have contradicted The Narrative.

Miller, set to stand trial starting July 27, and White, set to stand trial starting Oct. 13, both said that in order for the motion to be properly assessed by Williams, they should be given additional access to grand jury minutes and testimony, and be allowed to file subsequent and related motions under seal of the court. They’ve both asked for a hearing to discuss the issue.

They and Rice have also filed motions specifically requesting that the state disclose the minutes and testimony from the grand jury in which Taylor testified.

In yet another surprising example of rats abandoning a sinking ship, The Baltimore Sun has published an interesting opinion piece by David A. Plymer, who has substantial prosecutorial experience:

The disturbing revelation by The Sun this weekend that Baltimore State’s Attorney Marilyn Mosby or one of her prosecutors may have used a misleading summary of evidence to persuade a grand jury to indict the six Baltimore police officers charged in the death of Freddie Gray demands a formal investigation. The cardinal duty of a prosecutor under the Maryland Lawyers’ Rules of Professional Conduct is to “refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.” At least as to the second degree murder charge against Officer Caesar Goodson Jr., there is ample reason to initiate an investigation in order to determine if that duty was violated.

When Ms. Mosby announced the charges against the six officers at her press conference on May 1, 2015, it was the murder charge against Mr. Goodson that propelled Ms. Mosby to national prominence. The charge also stunned legal experts. It now appears that Ms. Mosby never had evidence sufficient to prove that charge; Mr. Goodson, who was driving the police van in which Freddie Gray sustained a fatal spine injury last year, was acquitted of all charges against him last week.

The evidence produced at Mr. Goodson’s trial by Ms. Mosby’s two deputies was so weak that it is not immediately apparent what facts would have formed the basis for an objectively reasonable prosecutor to conclude that it was likely that Mr. Goodson committed murder, which is the standard for determining probable cause. In that context, the testimony of Detective Dawnyell Taylor at Mr. Goodson’s trial, claiming that a prosecutor lacked integrity and had ignored evidence in the case, and the contents of her notes impugning the integrity of the grand jury process, reported by The Sun on Sunday, make it imperative that the actions of Ms. Mosby and her attorneys leading up to the indictment of Mr. Goodson be reviewed.

To regular readers, none of this is surprising.

The Sun published a detailed account of the nine days in April 2015 that its reporter spent “embedded” with the BPD task force investigating the death of Freddie Gray. In it, Major Stanley Brandford, in charge of the investigation for the BPD, expressed surprise at the seriousness of the charges brought against the six officers, wondering if his 30-member team could have missed something found by Mosby’s investigators. Three trials later we know that the answer is ‘no.

The BPD investigators were certainly confused, because any competent investigation requires that specific people be interviewed, specific evidence gathered, and specific protocols be followed. As I’ve continually noted, the prosecution’s errors and malfeasance can be best understood not by what they have done, but by what they have failed and refused to do. This, for Mosby, is an ominous example:

Former Maryland Attorney General Douglas Gansler was investigated by the Attorney Grievance Commission and reprimanded by the Maryland Court of Appeals in 2003 for making an ‘extrajudicial statement’ about an ongoing criminal case in violation of his professional responsibilities while he was the Montgomery County state’s attorney. There was no allegation that his statement was false or proof that it caused actual prejudice to the defendant.

If the conduct of Mr. Gansler warranted an investigation, then the conduct of Ms. Mosby and her staff certainly does. Mr. Gansler was accused of engaging in publicity-seeking behavior that could have prejudiced a case; the potential implications of Detective Taylor’s allegations are far worse. A murder charge hung over the head of Officer Caesar Goodson Jr. for over a year. The strain on Mr. Goodson and his family is unimaginable. If Ms. Mosby and her staff are exonerated, fine; if not, then appropriate action will be taken against the lawyers involved. What cannot happen is that the allegations are ignored.

Quite so. However, I wouldn’t want to place a substantial bet that the corrupt legal and political hierarchy will do as Plymer suggests. But he is not the only voice crying for actual justice, as, again, surprisingly, The Baltimore Sun reports: 

State Del. Pat McDonough said Tuesday he has started an online petition calling for the resignation of Baltimore State’s Attorney Marilyn Mosby. In a news release, McDonough said he is demanding that the charges against four police officers charged in the arrest and death of Freddie Gray be dropped.

‘The people of Maryland and specifically Baltimore have had enough of Marilyn Mosby’s political grandstanding,’ McDonough, a Republican who represents Harford and Baltimore counties, said in a statement. ‘This was a baseless, malicious prosecution from the beginning and she should drop the remaining charges and then resign.

And now we see, also via the Baltimore Sun, that the Maryland Bar is going to have to at least give the appearance of reviewing Mosby’s conduct:

John F. Banzhaf III

John F. Banzhaf III, a public interest law professor at the George Washington University Law School in Washington, said he intended to mail a full complaint against Mosby to the Maryland Attorney Grievance Commission on Wednesday.

In the written complaint, obtained by The Baltimore Sun, Banzhaf calls Mosby a ‘runaway prosecutor’ who has violated ethics rules governing the conduct of attorneys in Maryland at almost every turn in the case — from the moment she announced the charges against the officers in May 2015 to this week, when her office signaled it would continue pursuing its case against the officers still facing charges despite the full acquittal of two other officers in the last two months.

Mosby never had the evidence to charge the officers, Banzhaf argues, and should have reevaluated her misplaced belief that she did following the acquittals of Officers Edward Nero and Caesar Goodson Jr.

In addition to the two acquittals, both at bench trials before Judge Barry G. Williams, a mistrial was called in the trial of Officer William Porter after a jury could not reach a consensus on any of the charges against him.

This introduces another element into the whirlwind of lunacy. Now Mosby has to decide how far she wants to go. If she drops the charges, that’s a tacit admission she was wrong, but if she bulls madly ahead, she worsens the case against her before the bar. Is she smart enough to cut her losses, or will she continue, trusting in social justice righteousness?

In his complaint, Banzhaf points to various missteps by the prosecution that have also been noted in court by the officers’ defense attorneys and by Williams, including Mosby’s public comments the day the charges were announced and the prosecution’s violation of rules governing the disclosure of evidence. [skip]

Banzhaf said in an interview Wednesday morning that he has no connection to the cases and has not been in touch with the prosecution or any of the officers’ defense teams.

He also said he has ‘no particular political ax to grind, certainly not in Maryland,’ but decided to get involved in the case because Mosby ‘has gone too far’ and her actions ‘are causing many problems for the city of Baltimore.’

Local attorneys, Banzhaf said, are often dissuaded from lodging such complaints for fear their involvement would jeopardize their representation of local clients — making it even more important for outsiders with legal expertise to step in.

This is an excellent point. The law community in any town is based on relationships. Lawyers are cautious about angering other lawyers, and are very aware of power relationships and their ebb and flow.

credit: patdollard.com

I get involved in lots of different public interest actions because I think they are important and I think it’s a more effective use of my time than writing law review articles,’ he said.

He said he believes there are already grounds for Mosby’s disbarment, but that his case will be strengthened even more if Mosby continues to prosecute the officers still facing trial.

Mosby should sit up and take note of this:

Banzhaf has previously weighed in on other high profile cases. In the 1980s, he had a hand in prompting the case that resulted in a Maryland judge ruling that Spiro T. Agnew had taken thousands of dollars in bribes from contractors while Maryland’s governor and vice president

Banzhaf also got involved in the failed prosecution of three Duke University lacrosse players in 2006 on rape and sexual assault charges — a case that led to the disbarment of the district attorney there.

For those that don’t recall, Agnew resigned the vice presidency, and Mike Nifong, the corrupt prosecutor in the Duke case was removed from that case, the players were declared innocent–not “not guilty” but innocent–by the State Attorney General, and Nifong was convicted, jailed, and disbarred. His last name has become a verb indicating that a prosecutor has acted unlawfully, as in “Mosby nifonged the officers.”  It also applies when a corrupt prosecutor is brought down by their own corruption.

Final Thoughts:

credit: hellobeautiful.com

As an elected public official, Mosby would have to be impeached or resign. All of this depends on her political viability. Mayor Stephanie Rawlings-Blake got the message that she had no political future immediately after her horrific gaffes admitting that she not only ordered the police to stand down, but ordered them to let the rioters have a free hand. She announced she would not seek reelection. Mosby’s city councilman husband Nick ran for mayor, but quickly dropped out of the race when it became apparent he had not the slightest chance. Whether this is a reflection only on Nick or the Mosby family political brand is currently being played out in Baltimore.

If Mosby thinks she can continue the prosecutions with sufficient political support, there is little downside for her. She may continue to prosecute regardless hoping to get at least one conviction to wave as a bloody scalp in the civil suits filed against her. However, Banzaff’s bar complaint adds a new element. Mosby now has to calculate not only the political winds of Baltimore, but of the state bar. I don’t know what, if any, inroads she has into that body, but that must be an overriding concern. Disbarment would annihilate her viability for any future political post, and with her husband’s political star burned out, that has to be a significant consideration–if she’s capable of thinking clearly.

I suspect, however, that Ms. Mosby is getting a rather abrupt and unpleasant lesson in the utter lack of character, and the animalistic viciousness of the SJW/BLM types with whom she associates. Their loyalties are very much situational. Live by The Narrative, die by The Narrative.

UPDATE, 062916, 1950 CST: My thanks, as always, to the indispensable Andrew Branca at Legal Insurrection for his links to this update. By all means, visit his article on the same subject which includes the embedded motions and Bahnzaf’s complaint to the State Bar.