The Freddie Gray Case, Update 36.6: Brian Rice Not Guilty On All Counts

credit: baltimoresun

Once more, Judge Williams’ courtroom is one place in America where the rule of law holds.  It is encouraging to see a judge rule on the law and the evidence.  It is less than encouraging that many do not.

As in the last two trials, Judge Williams read the verdict for each charge, and his reasons for making it, from the bench. The Baltimore Sun reports: 

Judge Barry Williams

Williams said prosecutors had failed to meet their burden of proving the charges beyond a reasonable doubt, instead asking the court to rely on ‘presumptions or assumptions’ — something it cannot do. He said the court ‘cannot be swayed by sympathy, prejudice or public opinion.’

Based on the law, he said, the prosecution failed to prove the elements of the crimes.

Imagine that: a judge actually applying the law without bias or emotion. Perhaps other judges, particularly the Supreme Court, ought to do the same?  Judge Williams is almost certainly endangering his life by failing to deliver social justice.

The prosecution did not show Rice acted in a ‘grossly negligent manner,’ required of manslaughter, he said. It did not show that Rice acted in an unreasonable way or ignored the substantial risk in placing Gray in a police van without a seat belt, required for reckless endangerment, he said. And, it did not show Rice acted ‘corruptly,’ which is required for misconduct in office, he said.

Williams said a ‘mistake’ or an ‘error in judgment” by Rice was not enough to prove the crimes alleged. He also noted the difference between criminal negligence and civil negligence, an apparent nod to the fact that the city previously negotiated with Gray’s family attorney, William H. ‘Billy’ Murphy, on the civil side and agreed to pay the family $6.4 million.

‘Here, the failure to seatbelt may have been a mistake or it may have been bad judgement, but without showing more than has been presented to the court concerning the failure to seatbelt and the surrounding circumstances, the state has failed to meet its burden to show that the actions of the defendant rose above mere civil negligence,’ Williams said.

Judge Williams’ reasoning for the not guilty verdicts in the Nero and Goodson trials (Updates 34.5 and 35.7) was virtually identical to his application of the law to the Rice trial. Considering the charges in all cases are nearly identical, as is the evidence and witnesses, this is hardly a surprise.

On Monday, Williams noted that both sides had argued about the circumstances in which Rice made his decision not to secure Gray in a seat belt at the intersection of N. Mount and Baker streets. He said both sides wanted him to view the atmosphere — the prosecution said the officers were not being threatened, the defense said it was a volatile scene — in a ‘vacuum,’ but that he had to view it in context.

He quoted individuals heard yelling at the officers on a cellphone video of the scene, and said it was clear to him that ‘emotions and tensions ran high’ that day. He said it was ‘a matter of perspective’ as to the threat and need for officers to leave the scene quickly, and that Rice’s perspective was important.

He quoted one person as saying, ‘Smoke this dumb—,’ and another as saying, ‘I’ll bust all three of them.’

‘It is clear that law enforcement and citizens alike were yelling and upset. It is clear that information did not flow efficiently between law enforcement and citizens,’ Williams said. ‘While there are different views as to what happened, and a clear disagreement on the number of people at any given time, none of the individuals who testified indicated that it was a quiet time at Mount and Baker while Mr. Gray was being placed into the wagon.

Judge Williams demonstrates his experience and analytical ability here. Police officers must have the discretion to act when facing a threatening and growing crowd. Waiting until a mass assault against them, or an escape attempt is sprung is negligent and uniquely dangerous. I’m sure the Judge understands that an efficient flow of information between officers and the public is often impossible, particularly when the public is loudly threatening violence against the officers.

As I pointed out in covering this, and the other cases, the Prosecution has been completely unable to prove any of the officers received and read the new seat belt policy. Even if they could, Judge Williams has accepted that officers still retain discretion, and that the mere failure to use a seatbelt does not constitute a crime, nor is a violation of police policy a crime.

Williams also found that prosecutors had failed to establish Rice’s level of training or his awareness of a policy put in place days before Gray’s arrest that removed an officers’ discretion in deciding whether to secure a detainee in a seat belt — instead requiring it. He noted that part of that failure may have stemmed from his decision to block some evidence of Rice’s training based on a discovery violation by the prosecution. But he said the violation of police general orders is not a crime.

‘Case law makes it abundantly clear that a violation of a general order may be an indicator that there is a violation of criminal law, but failing to seatbelt a detainee in a transport wagon is not inherently criminal conduct,’ he said.

The Wall Street Journal added: 

In acquitting Lt. Rice of manslaughter, the most serious count, Judge Williams said prosecutors didn’t prove the lieutenant knew he created a substantial risk of death or serious injury by failing to place Mr. Gray in a seat belt—let alone that the officer consciously disregarded such risk. In addition the judge said prosecutors didn’t prove Lt. Rice’s actions caused Mr. Gray’s death.

WBAL, as usual, offers a bit more perspective: 

The state has put forth every theory that can exist and the judge has acknowledged again and again that the state did not meet its burden,’ said attorney Warren Alperstein, a courtroom observer.

No kidding. Leave it to Baltimore politicians to not only fail to support the police, but to continue to threaten them. The Mayor, regular readers will recall, ordered officers to allow rioters to riot and to stand out in public, doing nothing to stop rioters. Many officers were attacked and injured. After the riots, Rawlings-Blake said (from The Daily Caller): 

Baltimore Mayor Stephanie Rawlings-Blake

I’ve made it very clear that I work with the police and instructed them to do everything that they could to make sure that the protesters were able to exercise their right to free speech,’ Rawlings-Blake said during a press conference Saturday night.

‘It’s a very delicate balancing act, because while we tried to make sure that they were protected from the cars and the other things that were going on, we also gave those who wished to destroy space to do that as well.

Rawlings-Blake was soon to deny she said she gave rioters space to destroy, and was forced to announce she would not run for mayor when her current term expired. Following the Rice verdict, she piled on:

Judge Barry G. Williams found Lt. Brian Rice not guilty of all criminal charges. Lt. Rice is the highest-ranking officer charged in the Freddie Gray case. He was facing involuntary manslaughter, reckless endangerment and misconduct in office.

Now that the criminal case has come to an end, Lt. Rice will face an administrative review by the Police Department.

The law, reason, and professional policing standards will almost certainly not be the deciding factors in any “administrative review.” Social Justice cracktivists will get their pound of flesh one way or another.

credit: Annie Lebowitz for Vogue

Most news outlets have noted that this third successive acquittal has, or will, increase the pressure on Prosecutor Marilyn Mosby to dismiss the charges against Officers Garrett Miller, William Porter, and Sgt. Alicia White. The Baltimore Sun took the unusual step of posting this op-ed piece by attorney Charles N. Curlett Jr. Appearing within a few hours of the verdict, it’s apparent the article was already prepared and waiting. Curlett is “a former Manhattan assistant district attorney, is the managing partner of Levin & Curlett LLC and the current chair of the Criminal Law Section of the Federal Bar Association”:

Nuremberg taught us that a soldier cannot claim that he was ‘only following orders’ to excuse illegal conduct; the soldier must refuse. Legal ethics impose a similar duty on subordinate lawyers. But mutiny is a difficult thing to ask of someone in an effective chain of command. This is the unenviable position in which several Baltimore deputy and assistant state’s attorneys find themselves in the continuing trials concerning the fatal injuries Freddie Gray received while in police custody.

While an interesting point, I’ve seen no evidence that Deputy Prosecutors Schatzow and Bledsoe are anything but enthusiastic participants in the political persecution of the officers. Their serial violations of the law and legal ethics throughout all the trials eloquently speak to their intentions.

Consider the ethical framework of the prosecutions. The duty of the prosecutor is to seek justice, not merely to convict. The Maryland Rules of Professional Conduct prohibit all lawyers from bringing a frivolous case, which it is when the lawyer is unable ‘to make a good faith argument on the merits of the action.’ And prosecutors in particular are required to refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause. This framework prohibits a prosecutor from continuing to pursue a case in which she does not hold a good faith belief that the evidence supports the charges.

The ethics extend beyond Baltimore State’s Attorney Marilyn Mosby. The front-line prosecutors must themselves be convinced of the merits before they can ethically proceed. Circuit Court Judge Barry Williams has now rendered three not-guilty verdicts on the same set of facts in the trials of three officers charged in the death of Freddie Gray: Officers Edward Nero, Caesar Goodson Jr. and, today, Lt. Brian Rice.

In each successive trial, the prosecutors must ask themselves, ‘If we could not prove guilt beyond a reasonable doubt before, what makes this case different such that we honestly believe we will be able to do so now?’ If they cannot answer that question for the three remaining cases, the only ethical choice is to dismiss them.

Yes. The only ethical choice. Unfortunately legal ethics appear to be in very short supply in the current Baltimore Prosecutor’s Office. If legal ethics were explosives, there would not be enough to pierce a single square of Kleenex.

There certainly does not appear to be any remaining evidence that would create a reasonable expectation in the minds of the prosecutors that they are likely to secure a conviction. If that is so, legal ethics require dismissal of the remaining cases. But if Ms. Mosby persists, and any of her subordinates refuse on principle to violate their professional responsibilities, the spectacle of a mutiny may be the tipping point beyond which this once popular young prosecutor cannot recover. That is, if she isn’t already there.

This verdict, to rational people, to say nothing of rational legal minds, raises even more unsettling questions about these prosecutions. In truth, there is little new in Judge Williams’ carefully crafted reasoning. All of his verdicts have been grounded firmly in the law. They are devoid of political influence and are, as a result, unassailable.

Unassailable, that is, only to those that recognize the rule of law and the necessity of applying neutral principles of law to every case. During my police days, my working definition of justice was “ when you get in a traffic accident and the other guy gets the ticket.” The point was, we are all self-interested. However, most Americans accept the rule of law and understand that outcomes will not always favor their interests of philosophies. Social Justice warriors will never be swayed by law or fact. The social justice narrative requires the blood of six police officers. Their innocence, obvious to any competent prosecutor before charges were filed, is inescapable now, but only if one is willing and able to accept law and fact.

credit: legalinsurrection

The only different “novel legal theory” applied in this case was the idea that Lt. Rice, due to his rank, somehow had greater responsibility. His very rank made him more culpable, hence more convictable. As I’ve said repeatedly, in the Freddie Gray case, “novel legal theory,” translates as–and please, gentle readers, forgive the colorful language; it scarcely describes the lack of competence and ethics of the prosecutors–“an incredibly stupid idea pulled out of their asses at the last second.” The logical extension of this theory requires that every officer in the chain of command of a higher rank than police officer should have been prosecuted. After all, doesn’t the Chief of Police bear the ultimate responsibility for the actions of his officers?

This theory, as all of the other prosecution theories, is abject nonsense, idiocy of the first order. They would have been laughed out of any competent law school mock trial. Judge Williams recognized this and correctly applied the law, which leaves us with Sgt. Alicia White.

Sgt. White’s involvement  in this case began when some of the people present at Gray’s arrest, complained that he was inappropriately treated. Sgt. White briefly observed Gray at the 5^th stop of the transport van, the stop when Donta Allen was picked up. Seeing no medical distress, she did not so much as touch Gray, and the van continued to the booking facility where for the first time, it was obvious Gray was in medical distress, and medical help was immediately summoned. Sgt. White was there, and helped remove Gray from the van.

To recap: Sgt. White had no hand in Gray’s arrest. She wasn’t there. She briefly assessed him at the 5^th stop, but again, didn’t so much as touch him, and had no reason to think he needed medical help. When it was obvious he needed help at the final stop, she and the other officers did all they could to help him.

If the “higher rank/more responsibility” theory failed with Lt. Rice, how is it going to work with Sgt. White, who arguably had even less contact with Gray, who did less, than Rice?

The same applies to Officers Miller and Porter. Each of the three total acquittals has established that every prosecution theory is not only faulty, but insanely politically motivated. Nothing the officers did was a crime. Nothing they did violated policy. Everything they did in this unremarkable arrest was easily within the reasonable exercise of professional discretion and practice.

The facts of the case will not change between now and the scheduled trial of Officer Miller (July 27). The witnesses and their testimony will not change. The prosecution has admitted that the arrest of Freddie Gray was lawful. They have, as quietly as possible, stopped claiming that the knife was legal. They have also stopped claiming that Freddie Gray had an inhaler and that the officer’s refusal to somehow give him one–which they could not possibly do–is indicative of a conspiracy to kill him. The only possible new revelations available would have to be new evidence of prosecutorial malfeasance in hiding exculpatory evidence or something similarly unseemly and destructive to justice.

Who is that grim, white-haired man behind Marilyn Mosby?
credit: wsj.com

Any rational, professional prosecutor would dismiss all remaining charges. Judge Williams has given Marilyn Mosby more than enough face-saving material. She could easily explain that the facts and the law would only result in more acquittals and it’s unreasonable to spend the public’s money and resources on predetermined outcomes. She would not have to admit error, just stop making additional errors. Unfortunately, Mosby does not have to convince reasonable people, people whose faith has always been in the rule of law. Reasonable people have, since the filing of charges, argued for their dismissal, and even more so as officer after officer has been acquitted of all charges.

No. Marilyn Mosby must pander to her constituency, which is not the citizens of Baltimore, but the social justice community of America, the voices she heard in filing charges without evidence, the voices to whom she promised “justice for Freddie Gray.” It is a community that is perpetually aggrieved. It thrives on racism and hatred. It can never be appeased or satisfied. It always seeks nothing less than the blood of its enemies, and its enemies are everywhere. And so, the trials will continue to their inevitable conclusions, and the destruction of Baltimore, thanks to Marilyn Mosby and her dishonorable deputies, will continue apace.

The SMM Freddie Gray case archive is available here. 

ps: If you’d like to read Judge Williams’ decision, the invaluable Andrew Branca at Legal Insurrection has it here.