Thursday, June 23, 2016

Sanity and Justice At Last

Now I will say it:  Judge Barry Williams was brave in acquitting Officer Caesar Goodson in the death of Freddie Gray.  One might say that he merely did his job, but some jobs are performed under higher pressure and scrutiny than others.

I first became concerned about his succumbing to pressure when he refused to move the Freddie Gray trials out of Baltimore.  The head of the local NAACP, Tessa Hill-Aston, best illustrated the problem after the Goodson verdict when she opined that a jury would have found Goodson guilty because of their "emotions."  Plenty of jurors in the mistrial of William Porter were moved emotionally to convict him. These trials belonged elsewhere.

Then Judge Williams repeatedly failed to dismiss charges after prosecutors presented their cases against Porter, Edward Nero, and Goodson despite the woeful lack of evidence.  But in the end, when he had to make the most important decision of the Freddie Gray trials, Judge Williams properly applied the law to the evidence and acquitted Goodson of all charges.  He deserves props for this, because plenty of people succumb to political pressure.

No props go to Marilyn Mosby, who turned in a disgraceful performance and made Williams' job so much easier.  Some give Mosby credit for "trying," and do not believe that Goodson's and Nero's acquittals reflect on the appropriateness of her bringing charges.  On the contrary, these verdicts say all we need to know about Mosby's ethics, competency, and the damage she has inflicted upon public safety and the criminal justice system. She announced that her mission was to get justice "for Freddie Gray," not to get justice. She spent less than two weeks investigating his death, ignoring the police detectives and lying about using the sheriff's office as investigators.  She elevated a negligence claim into a murder case, such that too many now think that there's been no "accountability" for Gray's death despite a $6 million settlement.  She claimed officers should not have arrested Gray because the knife he carried was legal, when it wasn't.  She never mentioned a rough ride in her initial charges, then realized late in the game that she needed one to convict for murder.  And the evidence she presented was that Goodson took a wide right turn and then got out of his van. Pathetic does not even describe Mosby's case.

Mosby has accomplished three things in this sorry saga:
  • She raised false expectations for police accountability, such that many who already feel short-changed by the criminal justice system have yet another example of a system that doesn't work. (In fact, it worked perfectly to expose her case.)
  • Mosby demonstrated that she is a political creature who is not to be trusted with the job of following the evidence wherever it leads, the first duty of the State's Attorney.  So while some who already distrusted the "system" have more reason to do, many others have a new (and well-founded) distrust of Baltimore's prosecutor.
  • Citizens of Baltimore are less safe because Mosby's reckless charges have caused individual police officers to step back from proactive policing.
I had hoped not to hear any more drivel from the Baltimore Sun or anyone else unfamiliar with the ethical duty of a prosecutor.  But immediately after the verdict the Sun's editors wrote this:
We give [Mosby] the benefit of the doubt that she and her deputies believed they had a real case.  Indeed, it’s worth noting that Ms. Mosby’s office chose not to present to a grand jury the false imprisonment charges against three officers that she had initially announced. As the facts became clearer, prosecutors adjusted course.
Astonishing.  That they would point to one dropped misdemeanor charge in the midst of an invented murder case as evidence of Mosby's good faith is all we need to know about the Sun's ability to assess her performance. Mosby rushed her investigation for political purposes, ignored any facts that did not support her desire to file criminal charges, and constantly changed theories of criminal liability to give her case legs.  The only thing that became "clearer" about the facts was that no crime was committed, yet she forged ahead.  Sun, give it up.

I will write a wrap-up piece somewhere down the road, when all the cases finally finish.  Let's hope that's sooner rather than later.  If Goodson, the van driver, is not guilty, none of the officers are.  But our Three Blind Mice still get to decide whether we have to endure more of their folly.

Thursday, June 16, 2016

Three Blind Mice

The trial of Caesar Goodson, the police officer who drove the van in which Freddie Gray suffered his fatal injury, amplifies what the acquittal of Edward Nero already proved: State's Attorney Marilyn Mosby and her trial prosecutors, Michael Schatzow and Janice Bledsoe, are so completely blinded by their determination to pin Gray's death on a cop that they cannot see how patently ridiculous their cases look.  

We already know that they lack the ethics that prosecutors are supposed to have, announcing ahead of time (Mosby) that they will get justice for Gray and ignoring all evidence that contradicts their theory of the case.  They will even argue legal positions that other prosecutors in their office oppose to get what they want.  But to announce what they will prove in court and then prove the opposite reveals a level of obliviousness to the facts and indifference to the truth that would be comical if not so scary. 

Schatzow promised evidence of a rough ride by Goodson. What did he present?  Evidence that Goodson did not provide a rough ride.  He promised evidence that Nero assaulted Gray when he arrested him. What did he produce? Evidence that Nero didn't even arrest him.  And they don't seem to see this.  They argue their cases as though this was some law school moot court, not as prosecutors with the ethical duty to impartially assess the facts.

The original probable cause statement produced by these three prosecutors was on its face so lacking in grounds for criminal charges that professional observers believed that there had to be more.  What we have learned is that there is less.  And yet Mosby, Schatzow and Bledsoe continue on, enabled by a judge who refused to change the location of the trials (as he should have) and remains reluctant to dismiss charges for which the state fails to prove each element of the crimes alleged.

Goodson should be acquitted, hands down.  And as the officer with the most serious charges, his acquittal should finally send a message to Mosby and Co. that it's time to stop spinning around on their mouse wheel.   

But I wouldn't bet on it.  To put on the cases these three have manufactured, at such cost to the city (in public safety, morale, and money), they must suffer from permanent blindness.  

Splashy, but Irrelevant

The showdown that went down in court Thursday between lead prosecutor Michael Schatzow and lead police investigator Dawnyell Jones may have entertained journalists and spectators, but it's ultimately meaningless.

Carol Allan, the assistant medical examiner who examined Gray's body, ruled his death a homicide. Jones said that Allan first called it a "freakish accident."  My own personal view is that no M.E. would have called it a homicide unless led by the nose by prosecutors.  What Jones alleged that Allan said - "no human hands can cause this [injury]" -- was factually true.  No police officer beat up Gray.  Allan was prompted by Mosby's team to call it a homicide, but she applied a legal theory that wasn't for her to decide.  All the M.E. can do is tell us what physically caused a death.  The legal characterization of that cause is someone else's responsibility.

So the sideshow over what Allan really thought or really said doesn't matter, as Judge Williams well knows.  I am surprised he just didn't say so, since he is the one charged with rendering the verdict. On second thought, I shouldn't be surprised about anything anymore when it comes to the Freddie Gray case.  


Friday, May 27, 2016

Brave Judge or Troubling Acquittal?

Billy Murphy, lawyer for the Freddie Gray family and booster of State's Attorney Marilyn Mosby, called Judge Barry Williams "brave" for his acquittal of Officer Edward Nero.   If I were the other officers still pending trials, I would use that as exhibit A in again requesting that Williams move the trials out of the city. If it took courage for Williams, a professional judge trained to make legal decisions, to acquit Nero, think of the pressure that ordinary jurors feel amidst the volatility of Baltimore city to convict some officer of some crime to preserve the peace.

It didn't take judicial bravery to acquit when the facts demanded it even before the trial began.  The prosecution's "case" got even worse at the trial, showcasing the blind, ideological abuse of power in the hands of Mosby and trial prosecutors Michael Schatzow and Janice Bledsoe.

I respect the fact that Judge Williams did his job.  But he continues to show signs that he is not quite up to this case, that the pressure affects his decisions.  It's curious, for example, that he would make Nero wait four days on pins and needles for his acquittal.  Could it be that Williams worried about potential unrest in Park Heights and greater Baltimore during  national coverage for the Preakness Stakes, and what that would mean for the city?  Is public reaction his overriding concern as trial judge?

While that is speculation, a more concrete worry is Williams' failure to make the legal rulings he needs to make.  He is determined to send these trials to the fact finders for a decision, and by refusing to dismiss the charges, gives credence to the belief that Mosby and her team were justified in bringing them.  By allowing juries to make decisions reserved for judges, Williams imperials justice for the remaining officers waiting for trial.  The hung jury in the Officer William Porter trial, another case that should have been a slam-dunk acquittal, proves the point. 

Let's take the assault charge against Nero.  Williams decided that since Nero was not the officer who detained or arrested Gray, he was not guilty.  But that conclusion was uncontroverted at the end of the prosecution's case.  The legal standard at that point is whether a reasonable fact finder, viewing all evidence in the light most favorable to the prosecution, could find a defendant guilty beyond a reasonable doubt.  The state's own witnesses made it clear that Nero was neither the detaining nor the arresting officer.  There was no factual dispute to be resolved, and Williams should have dismissed the charge then.  He didn't, and had this a been jury trial, Williams would have allowed jurors to make a legally insufficient finding had they convicted.  (Williams also failed to address the issue of whether an arrest without probable cause is a criminal assault, perhaps because he didn't need to for Nero's case. But it guarantees that the other arresting officer, Garrett Miller, will go to trial.)

Williams acquitted Nero of reckless endangerment because he found it reasonable for Nero to think that another officer had responsibility for seat belting Gray. That assumes that the failure to seat belt "created a substantial risk of death or injury" (italics mine), the standard for reckless endangerment.  Yet no such proof was offered. Prisoners are safely transported without seat belts all the time.  Not using a seat belt isn't even evidence of negligence in Maryland, and it carries a mere $50 fine.  One Maryland law requires that transport vehicles for intellectually disabled children have a seat belt for each seat, but there's no such requirement for other children or transport vehicles.  It appears that our law-makers think of seat belts as measures that help to prevent harm, not create risk. The risk is created by other elements - speed, other drivers, etc.   Maryland legislators even specifically excepted the use of a motor vehicle from the crime of reckless endangerment!  But Mosby invented herself a new crime without the legislature, one of omission: the crime of not doing something to lessen the risk of transportation in moving vehicles.  And Williams has enabled this novel crime in both the Porter and Nero trials by failing to toss it on legal grounds. 

Nero also faced two misconduct charges, one for Gray's arrest (acquitted because Nero didn't make the arrest) and the other for not placing a seat belt on Gray.  Williams ruled that the state failed to prove that Nero knew about the new police regulation on seat belts.  But he wrote his verdict as though Nero might have been guilty of a crime had he known about the police regulation and consciously (even if in good faith) did not follow it.  Williams failed to mention the elements of the crime that he gave to the jury in the Porter trial: that Nero had to have acted in bad faith or with an evil motive.  Without those elements, any officer who failed to follow one of the incredibly numerous police regulations of which he had notice would be guilty of a crime, even if leadership never enforced it or he forgot about it.  On this theory of misconduct, Mosby is herself a criminal for failing to follow ethical guidelines when announcing charges against the six officers.  

At no time in the Porter or Nero trials did prosecutors even attempt to prove bad faith on the part of the officers.  It's all about a local police rule (not shared in sister counties) that required, on paper but not in practice, a seat belt. Not only is failure to seat belt not a crime, it's not even admissible in a Maryland civil court.  Yet Judge Williams has now twice failed to toss misconduct charges for legal insufficiency.

And so I fear that the van driver, Officer Caesar Goodson, a man with no blemishes on his record in some 16 years of service, is in jeopardy of an unjust conviction because he bears the most sensational of the charges (murder), and is the most likely to be scapegoated for Gray's death.  If so, he'll be exonerated on appeal - eventually, and at great personal and financial cost.  But Judge Williams could stop the farce now, for all the officers, for all of Baltimore, and for justice, by dismissing the charges for legal insufficiency. Now that would be brave.   

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It's Not a Game, Schatzow.

One of the weirdest things about the Nero trial was how the judge deliberately kept out any evidence about the knife found on Gray.  When Nero's attorney asked Miller it, Judge Williams sustained the prosecutor's objections.  Huh?  Wasn't this all about whether the police had probable cause to arrest? Apparently - behind closed doors - Mosby's trial team conceded they were wrong about the knife, and wanted to limit the argument to a new and novel theory of a crime.

Schatzow, a civil litigator by trade, has pulled out all stops in pushing the law as far as he can take it  to convict somebody of something.   He's oblivious to the consequences.  Even if officers arrest without probable cause, charging them with crimes for a mistaken belief renders them powerless to perform their jobs.  None of us could work if each mistake carried criminal consequences.  Most cops are high school graduates, not legal scholars, called upon to make split second decisions in high pressure atmospheres.  It's untenable to expect a standard of perfection.

Schatzow doesn't care about policing or public safety, only about making examples of these officers. So when his first theory of no probable cause failed (in his hasty investigation, he failed to read the Baltimore city code about knives), he came up with theory #2, which I addressed in my last blog: that anything less than instantaneous action to investigate the reason for a detention amounts to a crime. He also tried to persuade Judge Williams - who thankfully gave it short shrift - that an officer who assists another after a detention or arrest is an accomplice or co-conspirator.

Schatzow won the day in the Maryland Court of Appeals on his contention that one co-defendant can be forced to testify against another when both are pending charges, an issue I expect to see in the Supreme Court at some point.  But in a moment of ironic justice, he got his butt kicked when he tried it:  Miller, the compelled witness, took responsibility for the arrest of Gray and exonerated Nero from responsibility.  Schatzow deserved the whipping.  Real prosecutors use plea agreements to interview co-defendants and obtain and evaluate information.  Schatzow wanted it all: convictions on Nero and Miller both, giving no quarter to either.

But though Schatzow won't give up, the law is clear that neither Nero nor Miller committed a crime.

  • An officer may detain a suspect if he or she has reasonable suspicion to believe a crime was committed.  This is a lesser standard than probable cause, the standard needed for an arrest.  In a high crime area, unprovoked flight from a police officer may constitute reasonable suspicion.
  • A suspect may be detained for a reasonable amount of time to investigate an officer's suspicions to determine whether to arrest or let a suspect go.  What is reasonable depends upon the circumstances.  I know of no case holding that a 2-3 minute delay is unreasonable - that would be absurd.  Much, much longer detentions have been upheld as reasonable.
  • Handcuffing a suspect - the "hard take-down" - does not, by itself, turn a detention into an arrest.  Flight or reasonable belief that a suspect may be armed will justify handcuffing.
  • The collective knowledge of the police counts in assessing the reasonableness of a detention.  An officer acting on the instructions of another does not have to have first hand knowledge of why he detained a suspect. 
  • Officers may frisk a suspect for weapons to protect their safety if they have a reasonable belief that a suspect may be armed.  In the Gray case, the nature of the area and Gray's flight lent itself to such a belief, such that whether the knife was found as part of a frisk or in looking for an inhaler at Gray's request, its recovery was lawful and justified Gray's arrest.  

Schatzow, the civil litigator, ignored all of this, attempting to blame Nero and Miller for Gray's death through the back door of an illegal arrest.  "Illegal" in this sense doesn't mean crime, but a violation of the 4th amendment protection against unreasonable seizures, which, when it occurs, results in dropped charges and civil suits.  Only officers acting with bad faith or evil motive can be charged criminally - and Schatzow has made zero effort to prove such a state of mind for any of these officers. Mere violation of rules or standards constitute crimes for him.    

For Schatzow, it's all just a legal game.  How to win no matter what the obstacle.  Time for him to go back to civil litigation, where standards of ethics and justice apparently don't apply.