Monday, October 19, 2015

A Judge Influenced?

The decision of Judge Barry Williams to keep the trials of the six police officers charged in the death of Freddie Gray in Baltimore City demonstrates that judges, too, are human.

Billy Murphy, the lawyer for the Gray family, called Judge Williams’ decision “brave.” I would say that his decision reflects a judge who is not afraid of hard work but who was nonetheless influenced by political and cultural circumstances.

Legally speaking, Judge Williams should have moved the trials out of Baltimore. If ever there was a set of circumstances for changing venue, this was it. Not because of the publicity but because of the riots that followed in the wake of Gray’s funeral, riots that specifically affected Baltimore city only. Those riots were credited by many with the decision of Baltimore prosecutor Marilyn Mosby to hastily charge six police officers with criminal charges, including murder, despite the fact that nothing in her probable cause statement or the autopsy report supported murder. If the top prosecutor, whose sole job it is to follow the facts and the evidence, was influenced by the unrest, wouldn’t the citizens of Baltimore be similarly influenced?

Had Judge Williams moved the case out of Baltimore, no appeals court would have reversed him.  The Maryland Rule for change of venue states that a case should be moved if there is “reasonable ground” to believe that a defendant cannot receive a fair and impartial trial. Of course there is reasonable ground to believe this considering the rioting, destruction and continuing protests. If this case does not qualify, then the rule has no meaning. In a Florida case in which riots erupted after police shot a fleeing suspect, an appeals court had no hesitation in reversing a trial judge who, like Judge Williams, failed to move the case. The court was seriously concerned about the jury’s ability to disregard the consequences of their verdict.

By deciding to keep the case in Baltimore, Judge Williams has created a substantial argument for reversal, something that trial judges try – or should try – to avoid for the sake of all parties.

Judge Williams has proved that he will work hard. A number of lazy Baltimore judges would have moved the case just to get out of the work this case entails. Nevertheless, those lazy judges would have been legally correct.

Judge Williams seems to think that he can find an impartial jury through voir dire, the process by which potential jurors are questioned for their suitability. But Baltimore city voir dire is pretty superficial. Any citizen trying to get on the jury because they already have a point of view, or who is afraid of future rioting if they acquit, is highly unlikely to be detected, unless Judge Williams plans to fundamentally alter the way voir dire is conducted in Baltimore. Even then, detecting a subconscious fear is difficult to do.

I believe that by working so hard to keep the case in the city, Judge Williams is demonstrating that he, the judge, is influenced by concerns of violence. To be honest, before he ruled, I had hoped that the case would be tried in the city. The autopsy report has made it reasonably clear that Gray’s death was a tragic accident, and that Mosby is prosecuting the police officers for political reasons. If so, then I wanted city jurors to give Mosby and the citizens of Baltimore that message, so that the verdict could not be blamed upon racism or the failure of the criminal justice system.

But after Judge Williams’ ruling, I felt a sickness in the pit of my stomach. I let it sit there a while to figure out what it was. Did I think Baltimore jurors incapable of rendering a fair verdict, and that the defendants would be criminally convicted in a case that was, at best, negligence? No, not incapable.  And with a good judge, I don’t think that will happen (unless there is evidence of which I am still unaware.)

It’s that I fear that the judge is influenced by extra-judicial concerns, that he is afraid of the consequences should he make an unpopular ruling. And if he is influenced, and if he isn’t making the correct legal rulings, we can’t expect a jury to properly apply the law to the facts, either.

There will be other opportunities for Judge Williams to make rulings that will be “brave” – that is, to fly in the face of those demanding conviction when the facts and the law call for it.

We will see whether Judge Williams is up to the task. But for now, I feel that pit in my stomach.


  1. Thank you for continuing to write on the Gray case. I very much agree with your analysis. In fact, I dug up the Lozano case on WestLaw and sent it to the Baltimore Sun because I was surprised how much the discussion (and even the defense motion) had been focused on pretrial publicity as opposed to the threat of rioting in the event of an acquittal. The latter seemed like a much more compelling reason for a venue change, but I fear that wasn't the focus at the hearing.

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  3. Curious to hear your thoughts on the proceedings today.

  4. Dear Page Croyder,

    Thanks for writing on the topic of change of venue. You clearly state the principal issue (undue outside influence on jurors) that is usually lost in most popular discussions. I'm still waiting for the classic error that I've heard time and time again, even in court, that "voir dire" means to see and to speak. The French and English journey of that phrase are, quite verily, very old.