On Thursday, July 12, after presenting just four witnesses, the Defense in the Lt. Brian Rice case rested. Lt. Rice’s statement to police investigators was never entered into evidence. This came as quite a surprise to “legal observers,” and various reporters. It is surprising only if one harbors the mistaken impression the officers did anything wrong. As I’ve often written in covering this case, the arrest of Freddie Gray was unremarkable. Only his accidental death, caused by his own bad choices, and his race, brought this case to national prominence. Rice’s report wasn’t entered into evidence because it was almost certainly a rote recitation of the facts. There was nothing whatever incriminating. It was likely so unremarkable, even Schatzow and Bledsoe understood they couldn’t mischaracterize it without being laughed out of the courthouse.
Closing arguments are scheduled for 10 AM on Thursday. I suspect Judge Williams already has most of his decision written. He’s heard and seen it all before.
WBALTV reported that because Officer Porter has indicated he will invoke his Fifth Amendment rights if asked to testify further, the Defense could use some portion of his previous testimony from an earlier trial:
In Rice’s trial, Porter testified about helping Gray off the floor of a police transport van at the fourth of six stops the van made with Gray inside of it. He also testified that he asked Gray if he needed medical attention.
However, in his own trial, Porter addressed his conduct at the police van’s first and second stops, where Rice loaded Gray into the van.
The judge acknowledged this is a ‘unique situation’ when making this decision. Williams also granted the state’s request to use a portion of Porter’s cross-examination from his trial.
The prosecution’s unwise forcing of Porter to testify against his will has come back to bite them in the hindquarters. Two of the four Defense witnesses are quite important:
Rice’s attorneys called two medical experts to the stand to refute the prosecution’s assertion that Gray was injured early in the van ride.
Dr. Matthew Ammerman, a neurosurgeon, testified for the defense that Gray suffered a [missing in the original]. The state has argued that Gray was injured between stops two and four.
Ammerman said that the injuries suffered by Gray could lead to symptoms that would include the inability to speak and breathe, loss of bowel and bladder control and various and various cardiac issues. Gray did not display most of those symptoms until he arrived at the Western District police station, according to the defense.
‘I believe these symptoms manifested themselves instantaneously,’ said Ammerman, adding that Gray’s symptoms were inconsistent with an incomplete spinal cord injury.
It was this testimony, which contradicted that of Dr. Carol Allen, and also contradicted the Prosecution’s ever-changing theories of the case, that led Judge Williams to conclude in the earlier acquittals that the inability of the prosecution to establish the time and mechanism of Gray’s injury made it impossible to prove the case beyond a reasonable doubt. Gray’s injury wasn’t observable until the sixth and final stop.
Forensic pathologist Dr. Jonathan Arden agreed with Ammerman’s assessment. Arden testified that he would have ruled Gray’s death an accident, and not a homicide as assistant medical examiner Dr. Carol Allan did.
‘This was an unforeseen, unexpected, and some would say, an unintentional act,’ Arden said of Gray’s injuries.
Combined with Dr. Ammerman’s testimony, there can be no proof beyond a reasonable doubt that Freddie Gray’s death was a crime. Arden’s reasonable assertion Gray’s injury was an accident is absolutely what the Prosecution did not want to hear, but Judge Williams has heard it, repeatedly, before.
University of Baltimore law professor David Jaros said getting a conviction in this case remains difficult.
‘This is a case of omission, not commission,’ Jaros said. This case was tried well from both sides, but it remains to be seen if there was enough evidence presented to prove the case beyond a reasonable doubt.
Omission, the failure to do a duty, can be the basis for a civil lawsuit, but for a criminal matter, it’s very, very weak. The Prosecution is essentially arguing a tort, not a crime, but trying to squeeze that supposed tort into a tiny criminal bottle.
According to The Baltimore Sun, Jaros also said:
…the ‘common-sense’ argument is one easily understood, but that getting into Rice’s mind remained ‘a hurdle’ for the prosecution.
‘It’s a particularly difficult thing to do when the ‘crime’ is an act of omission.
The Sun also noted:
Warren Alperstein, a local defense attorney who has followed the trials, summed up the case against Rice:’The ultimate question is, was Lieutenant Rice’s failure to restrain Freddie Gray with a seat belt a criminal act? Judge Williams in Goodson’s trial made it clear … that the mere failure to restrain a prisoner with a seat belt, in and of itself, is not a criminal act.’
Alperstein said the prosecution needed to show ‘that there was an intent to cause injury, or an appreciation and understanding that failure to restrain can cause injury. Again, there was no evidence of either.
There was no evidence because there is no evidence to establish that. From the first trial in this case, the Prosecution’s argument has been: “It’s common sense! Everybody knows it! And Freddie Gray! He’s black!” Fortunately, the officers drew a judge that has decided the cases by the rule of law.
The conclusion of the defense case Tuesday afternoon came after a trial that was significantly shorter than those of the other officers. That was partly because of various stipulations entered into the record, in which both sides agreed to the submission of evidence and testimony without having it heard in court. That included testimony from the paramedic who found Gray unconscious at the Western District police station and police personnel who processed his blood samples found in the van.
As I’ve previously written, that paramedic’s testimony was not a factor in Judge William’s decision, other than possibly offering minor support to the conclusion that medical certainty leading to criminal death was impossible. Also, Gray’s blood and DNA samples were not in any way a factor in these trials. They could, and did, prove nothing material to any of the crimes charged. I remain mystified why the prosecution brought up those issues. Speaking of a difficult to understand Prosecution:
At one point Tuesday, Chief Deputy State’s Attorney Michael Schatzow challenged testimony from a defense medical expert, Dr. Jonathan Arden, that a decision to secure Gray in a seat belt would not necessarily have prevented his injuries.
‘That’s what a seat belt does. It stops people from moving, isn’t it?’ an exasperated Schatzow asked, before the defense successfully objected.
Even without the defense objection, this is nonsense. It has already been established in the earlier acquittals that seat belts do not secure anyone, and do not prevent injury because prisoners can release them at will. In addition, it was also repeatedly established that officers retain discretion in their use. Remember too that Judge Williams ruled that failing to use a seatbelt did not rise to a criminal act. One can almost feel sorry for Schatzow, eternally arguing without evidence.
Why would the Defense take less than a day and produce only four witnesses? Because they were confident that the Prosecution did not prove its case, and their witnesses, and the other evidence entered via stipulation, was more than sufficient to overcome any and every element of the Prosecution’s case–such as it was. This too is the reason Lt. Rice did not testify: his testimony wasn’t needed.
I lack the benefit of being in the courtroom, but even the sparse news accounts suggest that Judge Williams is not pleased with the Prosecutors, and less pleased with their case. He’s been there, heard that, and ruled it garbage several times already. Prosecutors with a strong, viable case, do not dismiss a charge before the first word of their opening, and they do not see the judge dismiss another before the defense speaks the first word of its case.
Regardless of the outcome of this case, incredible damage has been done to Baltimore, and to the rest of the nation. Marilyn Mosby continues to worsen that damage, which is becoming impossible to deny. Consider this from Paul Mirengoff at Powerline:
Jermaine Schofield was gunned down in Baltimore on Sunday, one of three murder victims in the city that day. Today, Schofield’s family held a vigil for him.
During the vigil, a gunman fired at attendees. Five were hit. Thankfully, all are expected to survive.
These events are not an aberration. Baltimore has descended into chaos since, in the aftermath of Freddy Gray’s death, the city failed to back its police force.
Murders surged a staggering 63 percent in 2015, with 344 people killed. This year hasn’t been quite as bad so far, but the murder rate remains abnormally high.
And why is that? Because police officers are fast deserting this sinking ship. And the BPD is finding it increasingly difficult to attract new police officers of sufficient character and intelligence.
Meanwhile, Baltimore’s police force is shrinking dramatically. According to Blake Neff of the Daily Caller, at the beginning of 2015, Baltimore had 2,805 police officers. By the end of the year, the force was down to 2,634 officers, a drop of 6.1 percent. In June of this year, there were only 2,445 officers in the force, a decline of 6.8 percent since January.
The shrinkage in the size of the police force seems clearly to be related to the events that followed Freddy Gray’s death — the riots during which Baltimore’s mayor, having talked about making space for “those who wish to destroy”, had the police stand down; the prosecution of six officers on charges that appear to be without merit; the wave of anti-police sentiment that politicians like prosecutor Marilyn Mosby have fueled and legitimized.
According to Gene Ryan, president of the Baltimore Fraternal Order of Police, these events were, as one would expect, “morale killers” for Baltimore cops. Many officers, he adds, are defecting to the police departments of nearby cities, including Washington, D.C.
Keep in mind that Washington D.C. is also a cesspool of crime, but for at least some Baltimore officers, it’s a better, safer place than Baltimore. When officers reasonably believe they will be prevented from enforcing the law, and forced to stand by as rioters assault and injure them, they’re going to leave out of self- preservation. Add an entirely reasonable certainty that if they arrest black people, or God forbid, have to forcibly restrain or shoot black criminals, they’ll find themselves punished, arrested, even prosecuted regardless of the evidence, or lack thereof, and even the officers that have no choice but to remain are going to avoid anything that might put them in political danger. They don’t fear danger from criminals; they knew that when they became officers. They fear the politicians and prosecutors, particularly the prosecutors, who have foolishly and viciously insulted and denigrated the police, causing a rift that may never be bridged.
Jermaine Schofield was black. The overwhelming majority of murder victims in Baltimore are black. If black lives matter to Black Lives Matter, it should not have demonized Baltimore’s police force and pressured city officials to do the same, thereby unleashing deadly violence in predominantly black neighborhoods.
It’s not the fault of the Baltimore Police. Any police force can do its job only with the full support of its political class and its population. The thin blue line separating anarchy from civilization is thinner than most realize. The nation is seeing what happens when that line is stretched to the breaking point and beyond, and the first victims are the very people most loudly attacking the police. They won’t be the only victims.
While it’s possible Judge Williams could find Lt. Rice–or any of the remaining officers–guilty of something, the utter lack of evidence in this case, and his rulings in the last two trials, suggest strongly that Lt. Rice too will be acquitted of all charges. As I noted in Update 36.3, if that is the case, the idea that a supervisor bears some enhanced criminal liability in this case, the most recent of the “novel legal theories”–translation: crazy ideas the prosecutors pulled out of their posteriors at the last minute–of the Prosecution, will be obliterated, making any guilty finding against Sgt. Alicia White essentially impossible. Lt. Rice only touched Gray once, using minimal force in helping to secure him. Even the Prosecution didn’t argue that Rice injured or abused Gray. Sgt. White only looked at Gray, briefly, once. She never touched him. How does that become murder?
Sadly, it seem Marilyn Mosby and her deputies lack the character, professionalism and the ethical foundation to recognize that continuing this unsupportable war against the police is doing far more damage to Baltimore, the nation, and themselves than any finding of guilt could possibly justify. Maintaining the lie that Freddie Gray was a holy martyr continues to do incalculable damage.
It’s possible we’ll have Judge Williams’ ruling by the end of the week. More on Thursday.