credit: baltimoresun

credit: baltimoresun

After less than three days of testimonyin a manslaughter trial–the prosecution has rested, and Judge Williams, in response to the Defense motion to dismiss all charges, threw out the assault charge, observing that the prosecution failed to prove Lt. Brian Rice acted in concert with another to prove the assault charge. In other words, there was no evidence to support the charge. This is the second charge dismissed in this case. One count each of manslaughter, reckless endangerment and misconduct in office remain.

Media outlets were even more brief than usual, saying little about the testimony of the few remaining witnesses, but I’ll do what I can to make sense of the scant information available.

Officers Edward Nero and William Porter testified (via WBALTV). Both officers did substantial damage to the prosecution case while supporting the defense case:

Officer Edward Nero

Officer Edward Nero

Nero testified for 40 minutes on Monday about Gray’s demeanor during his arrest and how Gilmor Homes was becoming a ‘very hostile area’ and ‘started to empty out’ at that time.

During cross examination, Nero described an inhospitable environment during the initial arrest. He added that Gray was flailing, screaming and kicking inside the van.

‘We just had to move and get out of there,’ said Nero, who added that the crowd was ‘getting uncomfortably close’ to them.

This is a common police tactic. Officers always do their best to remove arrestees from crowds to which they are playing, and they do it before things explode past the point of leaving. Safety, for everyone, first.

At one point during Nero’s testimony, there was a heated exchange between Nero and prosecutor Michael Schatzow during the state’s redirect.

Baltimore Circuit Court Judge Barry Williams gave the state some leeway in their questioning of Nero, allowing for questions the defense called leading, given his status as a former defendant in the case and since he is among five officers suing State’s Attorney Marilyn Mosby over his arrest.

Schatzow’s anger was apparently due to the suit filed against him by Nero and four other officers, and the fact that Nero and Porter spoke with the Defense regarding their testimony, which is an entirely normal and appropriate thing to do.

William Porter and his attorneys. credit: reuters

William Porter and his attorneys. credit: reuters

Porter was next to testify. He was on the stand for 30 minutes and was asked by prosecutors to recall his interaction with Gray during stops four and five. Porter testified that he asked Gray if he needed medical help, and Gray said ‘yes.’

Porter testified that Gray’s calm demeanor didn’t indicate that he was injured. He also added that Rice was not present at either stops four or five.

This, as well as Nero’s testimony establishes, for at least the third time, the essential elements of the Defense case that have resulted in one mistrial and two acquittals. The next witness was equally unhelpful to the Prosecution:

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University of Maryland Police Capt. Martinez Davenport testified about seat belt audits in April and September 2014. Martinez said all districts passed inspection on whether officers were seat belting arrestees.

This might seem helpful to the prosecution, until one realizes the Defense immediately established that the officers being audited were told of the audits in advance. Angelique Herbert, the paramedic that responded to treat Gray at the 6th and final stop was going to testify, but after a bench conference and agreement to stipulate to various bits of evidence, she apparently didn’t testify and the Prosecution rested.

Donta Allen credit: baltimoresun

Donta Allen
credit: baltimoresun

The Defense case began with Donta Allen, who, though somewhat hostile, inevitably supported the Defense case. Having already testified in an earlier trial, he could hardly commit perjury in this one:

The defense began to present its case with its first witness, Donta Allen, who was the other person placed in the police transport van with Gray. At times Allen was confrontational with defense attorney Chaz Ball but said he heard something like head banging in van.

The next witness was illustrative of the extraordinary weakness of the Prosecution’s case:

The next defense witness was Officer Zachary Novak, another Western District officer, who was offered immunity from prosecution. He testified when he arrived at the second stop where Gray was placed with shackles, Gray was back in the van and the crowd of ‘10 to 15 people’ began to disperse.

Under cross-examination, prosecutors showed Novak video and photos of the scene and he could only point out about six people. However, under redirect, Novak said the video did not show the whole picture from that particular angle.

‘I had a first-person view from the street,’ Novak said.

As is its custom, WBAL provided analysis from legal experts:

University of Baltimore law professor David Jaros said the state had to call Nero and Porter to testify to establish the chain of events surrounding Rice’s actions on the day of Gray’s arrest.

Absent such basic information as who was there, where they were, and similar foundational issues, the Prosecution could not so much as place Lt. Rice at the scene of Gray’s arrest.

Still, Jaros said it continues to be an uphill battle in the prosecution’s efforts to win a conviction in these cases.

‘The evidence we’ve seen here doesn’t seem much different than the cases from before…,’ Jaros said. ‘(Nero) is a double-edged sword for the prosecutor because they can bring in a lot of information such as the context of the arrest and the defense went through great effort to establish what the circumstances were at the scene suggesting that it was a chaotic scene.’

Jaros continued: ‘The defense has an argument, and it’s not a slam dunk argument, that Officer Porter’s actions (at stop four) actually severs the chain of causation therefor Lt. Rice would not be the approximate cause of Mr. Gray’s injuries by failing to buckle.

This is an interesting observation by Jaros, because Judge Williams, in the previous two acquittals, made exactly that ruling: the officers could not tell until the sixth and final stop that Gray was in medical distress, therefore, they could not have summoned medical assistance–which they did at the 6th stop–until then. Rice’s actual involvement with Gray ended at the 2nd stop. That seems rather like a slam dunk to me, but what do I know?

Defense attorney Warren Brown, a courtroom observer with no connection to the case, agrees.

‘I’m not sure why (the state) put Officer Porter on the stand,’ Brown said. ‘Porter mostly talked about stops four and five and Rice’s involvement with Freddie Gray was done by stop two…Officer Nero put meat on the bones for the defense that Freddie Gray was combative and the crowds were growing at stops one and two.

‘The testimony of the officers either benefited the defense or didn’t prove the elements the state needed to prove (a crime occurred).

Final Thoughts:

Clearly, the Prosecutors are making a fundamental mistake: they’re taking these cases personally, which tends to happen when charges are filed without any evidence to support them. Political, rather than legal, decisions tend to involve emotion, egos and reputations. Obviously, Schatzow is watching his go down in flames, yet he continues to drag what little relationship remains between the police and Prosecutors with him.

As always, one can reasonably interpret the utter lack of significant evidence/argument in the Prosecution’s favor presented in media accounts to indicate that the Prosecution’s case is a nearly complete disaster. As in today’s accounts, every point the Prosecution attempted to make was immediately shot down by the Defense.

Schatzow’s anger at Officers Nero and Porter for speaking to the Defense is entirely misplaced, but understandable, in an unethical, unprofessional way. It is entirely appropriate for prosecution witnesses to speak with Defense attorneys and vice versa; it happens every day. Competent prosecutors expect it, and don’t fear it in the least. This is so because competent prosecutors don’t file cases they can’t prove beyond a reasonable doubt.

I suspect the Defense case will last no longer than Wednesday. Though I could be missing something, there appears to be no evidence to prove the elements of the remaining offenses at all, let alone beyond a reasonable doubt. The suggestion, which seems to be the heart of the Prosecution’s case, that Lt. Rice bears some overarching responsibility for Gray’s death merely because of his rank, is nonsensical. That being the case, why wasn’t the Police Chief charged? After all, he bears ultimate authority, does he not?

He does, but only in an administrative, political sense. The same is true of Lt. Rice. Competent supervisors don’t engage in street level micromanagement. As long as officers are doing their jobs within the boundaries of reasonable professional practice, supervisors just keep their mouths shut and don’t interfere. Most importantly, however, is that where crimes are concerned, we do not engage in corporate punishment. Each man answers for his own, specific actions when those actions violate the law. The actions of others don’t convict the innocent. This is particularly so when no crime has taken place, only a freak accident.

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If Judge Williams fails to buy the Prosecution rank argument, that essentially dooms the same argument in the trial of Sgt. White.

This trial, like the last two, using the same evidence and the same witnesses, appears to be heading inexorably to the same conclusion. There is always room for surprises in such matters–witness the legal contortions of the FBI Director in absolving Hillary Clinton after first laying out more than sufficient evidence to prosecute her–but how could it be otherwise?

More tomorrow, but I fear I’ll be repeating myself.

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