Lt. Brian Rice

Lt. Brian Rice

As the trial of Lt. Brian Rice begins, the Prosecution has, once again, shown its posterior to the court and the public. Considering the number of times the prosecutors have been sanctioned–weakly, but sanctioned nonetheless–for violating their discovery obligations, one would think they would take great pains to avoid that sort of thing. And considering they have a mistrial and two losses, one would think they would work with great care to be absolutely sharp and brilliantly prepared for this trial. For competent lawyers, this would be mandatory, particularly because the same judge is hearing every case, and is obviously not feeling warm and fuzzy toward the prosecution. One would think wrongly.

Just last week, the Prosecution dumped some 4000 pages of training documents on the defense, giving them no time to read, let alone prepare to deal with, those documents. Judge Barry Williams laid into Chief Deputy Prosecutor Michael Schatzow, telling him he and his office did not do what they were supposed to do, and Schatzow shrugged and admitted he didn’t even know if he could prove Rice had been present for any particular training, so Judge Williams threw out all of that material; the prosecution can’t use it.

But that’s not the best bit of incompetence. Before his opening statement, Schatzow dropped the count of Misconduct in Office relating to the arrest of Freddie Gray. This is significant in that Rice didn’t actually participate in Gray’s arrest. He was busy helping control the crowd. Schatzow knew this from the beginning, yet he falsely charged Rice with that crime anyway and kept the charge until the very last minute. Perhaps he dropped the charge in the hope of being somewhat less embarrassed when it utterly failed, but the prosecution has shown no tendency toward feeling shame or embarrassment thus far, so who knows?

A quick review of the basic facts in this case: It was Lt. Rice Freddie Gray saw, freaked out about, and ran from. Rice called for help, and it was Off. Garrett Miller that actually caught and ultimately arrested Gray. During that process, Rice was dealing with a growing and hostile crowd. The officers sent Off. Goodson several blocks away to get away from the crowd, and there, Lt. Rice helped Officers Miller and Nero shackle Gray and prone him on the floor of the van. Rice was briefly in the van–about 9 seconds–and that was the extent of his involvement with Freddie Gray.

Deputy Baltimore Prosecutor Michael Schatzow credit:

Deputy Baltimore Prosecutor Michael Schatzow

Schatzow’s opening statement indicated his theory of this case is essentially that because Rice is a higher ranking officer, he somehow has greater responsibility for…well, just about everything. That, and Rice was sort of kind of overall responsible for seatbelting Gray, even though prior trial testimony has established that if Gray had remained prone, that would have been the safest possible position for him.

This, from The Baltimore Sun, is interesting:

During his opening statement, Chief Deputy State’s Attorney Michael Schatzow presented no new factual allegations since the previous trials, and did not cite Rice’s statement to police investigators.

The Defense opening touched on the rulings and evidence presented in the three previous trials:

Chaz Ball, an attorney for Rice, countered that theory in his own opening statement, saying that Rice made a “9 second assessment” that it was too dangerous based on a growing crowd at the arrest scene, Gray’s combativeness and the confined space of the van’s rear compartment.

Ball said Gray was ‘banging and belligerent, he was kicking and combative.’ He said Gray was most combative, and the crowd was the most “irate,” at the stop where Rice was most involved — helping to explain his decision.

He also said Gray was not presenting any obvious injury — blood, vomiting, distress or trauma — at the stops that Rice was involved in his handling.

Rice’s actions, Ball said, were ‘absolutely, 100 percent reasonable,’ and Gray’s death was ‘a tragic, freak accident that nobody could have foreseen.

In the previous trials, Judge Williams has ruled that Gray’s injuries were manifested internally, and Officer Goodson–and other officers–could not have known he was in any medical distress until the 6th and final stop when they immediately summoned medical help. The testimony thus far has been virtually identical to that given in the first three trials. As usual, the first witness was the Coroner, Dr. Carol Allan:

Dr. Carol Allan

Dr. Carol Allan

Allan said that if Gray had been restrained in a seat belt, his injuries ‘would not have occurred.

This is nonsense. Also previously established was that because prisoners can open seat belts at will, they secure no one. Allan actually hedged a bit on that:

But she also said the failure to secure Gray with a seat belt would not alone have amounted to a homicide. Her opinion was also based on a medic not being called for Gray when he asked for one and her reading of witness statements, she said.

This is where Allan tried to play Sherlock Holmes, as I explained in Update 10.   It’s not the job of a medical examiner to factor witness statements and officer’s judgment calls into her medical opinion, yet it is obviously necessary if she is to call this accident murder.  The medical evidence doesn’t make that case.  Her hedging is no doubt due to Judge William’s ruling in the Goodson trial that failing to seat belt Freddie Gray was not the cause of his death and was not a crime.

She said she believed Gray got out of the prone position on the floor where he was left by Rice and other officers before he was injured. She said Gray would not have been able to sustain his injuries by banging his head against the wall of the van.

She also said the change in Gray’s demeanor between the second and fourth stops of the van suggested he’d been injured during that period.

This suggestion by Allan is, of course, complete guesswork, with no medical or scientific backing, as the Defense soon forced her to admit:

Michael Belsky, another of Rice’s attorneys, suggested on cross-examination that Allan’s opinion was based on speculation and guess work. He peppered her with questions about how she’d come to her conclusion.

At one point, he asked her if she believed Gray was injured at the fourth stop because he was not yelling or being combative like he’d been previously.

Allan struggled to answer, as Williams went back and forth between furrowing his brow and raising an eyebrow.

Eventually, Belsky asked again, to which Allan responded, ‘Well, yes.

As is usually the case, WBALTV’s coverage was more detailed and less friendly to the prosecution: 

Allan testified that she believes Gray’s injury occurred between the second and fourth stops made by the van. However, under cross examination, she admits there is no definitive proof to pinpoint exactly when the injury occurred.

Allan added that failure to seat belt Gray alone would not be enough for he to rule his death a homicide.

BPD Captain Martin Bartness testified again in this trial, and his pattern of testimony was identical to his past testimony. The Prosecution elicited testimony that general orders are holy writ, and under cross examination, Bartness had to admit that department policies are not laws, officers not following them can be disciplined, or not disciplined at all, and officers always have discretion:

Baltimore police Captain Martin Bartness, the chief of staff for Commissioner Kevin Davis, testified how the new general orders in place just days before Gray’s arrest required officers to seat belt those being transported. [skip]

Under cross examination, Bartness said violating a general order can be against police policy, but is not necessarily a violation of the law. He testified officers found to have violated an order could receive punishments ranging from a verbal or written warning to termination.

However, Bartness said there could be cases when an officer is not punished at all if they could justify their actions.

‘Discretion is a necessary part of the profession,’ Bartness said.

BPD IT testimony was also a retread:

Andrew Jaffee, director of information technology for the Baltimore Police Department, said that Rice was among those that received the email outlining the new policy on April 9.

But, Jaffee admitted he could not confirm whether Rice opened or read the email.

Translation: “Yeah, we e-mailed the policy, but we have no idea who, if anyone, read it, or which, if any supervisors, told their subordinates about it, which includes Lt. Rice.” Remember too, gentle readers, that the e-mail in question was sent out as part of a huge blizzard of other material over an antiquated and often non-functional e-mail system. It’s a miracle anyone saw it.

The last state witness to testify Thursday was Rick Opitz, a specification supervisor for Baltimore City who wrote the specifications for purchases of Baltimore police vans.

This no doubt means that Opitz said nothing–as was the case in the past–that will have any bearing on this trial.

Final Thoughts:

credit: legalinsurrection

credit: legalinsurrection

What I find amazing is that the prosecution knows they have no new evidence.  They know Judge Williams has obliterated their theories.  They know they’re going to make the same arguments and present the same evidence that the Judge has entirely rejected, yet they continue the charade.  Ego?  Stupidity?  Incompetence?

The Prosecution opening indicates that the “Rough Ride” theory is out the window in this trial. Even Schatzow apparently won’t try that one, and how could he? Rice had nothing to do with Gray’s transport. Schatzow seems to be continuing to weakly argue that failing to get Gray medical care is somehow an issue, but there is no evidence Gray ever said a word to Rice about medical care or anything else, and even Dr. Allan has admitted that Gray showed no possible outward signs of medical distress until after the 2nd stop, long after Rice last saw Gray.

This leaves Schatzow with the argument that Rice, by virtue of his rank, somehow takes on extra responsibility above and beyond that of the other officers. This is nonsense for reasons that go above and beyond his very slight dealings with Gray.

A Lt. in an agency the size of Baltimore is nothing more than a shift supervisor. They seldom, if ever, make arrests, and generally handle paperwork, scheduling and public relations issues. On those relatively rare occasions when they are on the streets, they generally do nothing but observe officers doing their jobs. Normally, they wouldn’t intervene or give orders unless they were seeing something significantly wrong. In the Freddie Gray case, as I’ve often written, that wasn’t apparent. Gray’s arrest was unremarkable, just like thousands of other arrests. The only thing that made it stand out is the freak accident, brought on by Gray’s own bad decisions, which cost his life. Observing this, Rice had no greater responsibility than any officer present. All acted as they normally, reasonably, do. Under the law people are responsible for their own actions. If an officer commits a theft, his supervisors aren’t arrested and jailed.

Also significant is that Schatzow apparently didn’t mention Rice’s statement in his opening. I suspect this is because it is entirely, like Gray’s arrest, unremarkable, merely a matter-of-fact recitation of what Rice saw and did. Probably, there’s nothing that could be so much as successfully mischaracterized to assist the prosecution. We’ll see.

Lt. Rice acted, as his attorney asserted, reasonably given the circumstances he observed. He had no reason to do otherwise, and thus far, there is no indication that the prosecution has any evidence beyond that already presented in the previous trials, which evidence miserably failed.

I’m not in the courtroom. I can’t see the lawyers, but I’m getting the sense that even the Prosecution knows they’re just going through the motions only to lose–badly and completely–again. The impetus for these trials continues to be social justice, not the rule of law.

More tomorrow, I’m sure, but I’m reasonably sure it will be déjà vu all over again.