A Texas-Sized Lesson

A sensational story, garnering national coverage. Widespread calls for an immediate criminal investigation. Ideologues on the left and right shouting their preconceived condemnations.

The Freddie Gray case?  To this point, yes.  But here's what happened next:

A responsible, ethical prosecutor made a promise to "follow the evidence wherever it leads."  He took his time, using the powerful tools that prosecutors have at their disposal to find the truth.  

Two months later, the accusations of criminal conduct turned on their head:  the accused was proved innocent, and the accusers indicted instead.

Now I don't perceive Texas to be a beacon of enlightenment when it comes to criminal justice.  Its citizens can openly carry guns with the backing of strong right-to-use-force laws.  It executes more prisoners than any other state.  

But Harris County District Attorney Devon Anderson, a Republican, refused to bow to political and social pressure when pro-life, self-styled "investigators" accused Planned Parenthood Gulf Coast of selling fetal tissue for profit.  Instead, Anderson launched a two-month investigation, using a Grand Jury, and not only cleared Planned Parenthood, but indicted its accusers.

State's Attorney Marilyn Mosby, his Baltimore counterpart, took a mere two weeks to investigate the death of Freddie Gray in police custody, ignoring all the standard investigative tools at her disposal. Instead of  "following the evidence wherever it leads" she predetermined the result, abandoning her prosecutorial ethics for politics, ideology, and career.  As a result, six Baltimore police officers innocent of any crime are being dragged through costly trials, and the city's top prosecutors, instead of leading the city through a crime spike sparked in large part by their own actions, are trying to salvage their cases "by any and all means necessary."  (Mosby's own words while investigating the Gray case.) 

Mosby's in good company with the political leaders at the Texas state level, who plan to continue their own investigations of Planned Parenthood because the original accusations fit their pro-life ideology. The editors of our own Baltimore Sun won't throw in the towel, either. Today, in an editorial condemning the twitter comments of a city police officer, they wrote:

Freddie Gray's arrest and death may or may not have involved criminal behavior by police, but it certainly conveyed the impression that Baltimore police are entirely unsympathetic to many in the city they serve — and that's putting it as generously as possible.

They refuse to concede that Mosby's evidence does not reveal criminal activity after their long crusade for criminal trials,  and still claim that at the very least both the arrest (!) and the death of Gray prove that Baltimore police are, at best, "entirely unsympathetic" to citizens.  They ignore anything that contradicts this narrative, including the evidence that police van driver Caesar Goodson asked Officer William Porter to check on Gray, who not only did check but helped him off the van floor.    

But it's a lost cause when it comes to ideologues, whether they come from the right or the left.  Thank goodness for prosecutors like Devon Anderson, who give me hope that ethics, objectivity and professionalism live somewhere, if not in Baltimore.  

Right, Wrong, and Reprehensible

If the published comments from one of the jurors in the first Freddie Gray trial are accurate, then I was right, wrong, and right again.

Right that the jurors were close to acquitting Officer William Porter on the most serious count, involuntary manslaughter.

Wrong that they were close to acquitting him on the other charges as well.  In fact, they were very close to convicting him for misconduct in office, and leaned towards conviction for reckless endangerment.

And right that this trial should have been moved.  This hung trial makes it all so clear that the six officers cannot get a fair trial in Baltimore city.

According to the Sun, Judge Barry Williams instructed the jury that to find Porter guilty of misconduct in office, he had to have acted with "evil motive and bad faith," that he could not have made a "mere error in judgment,"  and that he "corruptly failed to do an act required by his duties."

There was zero evidence of evil motive, bad faith or corruption in performing his duties. Porter acted completely consistently with other police officers. Acting in conflict with a general order does not equate to misconduct, either. If one thinks the police, as a department, act unreasonably in how they transport prisoners, that's what civil suits are for.  But not criminal charges.  

To convict for reckless endangerment, the Maryland standard jury instructions say that Porter had to have engaged in conduct that created a "substantial risk of death of serious physical injury,"  "that a reasonable person would not have engaged in that conduct," and that he acted "recklessly."  To act recklessly means that "his conduct created a risk of death or serious physical injury to another" and that he "consciously disregarded that risk."

Prosecutors failed to prove that Porter created a substantial risk of death or serious injury. Even if one accepts the state's contention that he should have seat-belted Gray, this did not create a substantial risk of serious injury or death.  Prisoners are transported like that routinely and safely all over the state.  Small risks don't count, and "if-only" doesn't count, as in, "if-only he had a seat belt on he would not have died."  One could equally say, "If-only Gray had not banged around the van causing the police to place him on the floor, he would not have died."  One cannot assign criminal liability with an "if-only" standard, or all negligence cases would become criminal cases, and nearly every one of us would be criminals.

Prosecutors also failed to prove that Porter had any reason to think that Gray was seriously injured and consciously disregarded a risk of death.  Even if their unproven theory is correct that Gray had suffered his fatal injury by the time Porter was talking to him, Porter had no reason to know it. He helped Gray up, and Gray was talking to him.  Even the state's autopsy report indicated no obvious signs of injury. On top of that, the defense presented powerful evidence that Gray was not injured until after Porter spoke to him. To which prosecutors resorted to their "if-only" argument: if-only Porter had called a medic before Gray was actually injured, he would not have died.  

The only possible bit of evidence to support the state's contention of recklessness is the note taken over the phone by a police investigator that Porter told her that Gray said he couldn't breathe.  She thought Porter was talking about the fourth stop.  Porter testified that he was talking about the initial arrest, and the issue had to do with an inhaler. He never mentioned Gray saying he couldn't breathe in a videotaped interview.  That single phone interview note is the linchpin of the state's case against Porter, which crumbled under the weight of the other evidence.  

So what was the jury thinking?  That they had to convict Porter of something.  They couldn't possibly let him walk completely in such a momentous case.  That's exactly why prosecutors threw in those lesser charges, to give the jurors a straw to grasp.  The weight of the case clearly hung all over them, and they could not  -- however well-intentioned -- give Porter a fair trial based only on the law and the evidence. Heck, I don't blame them. Judge Williams couldn't, either.  Starting with keeping the trial in the city.

And then there's the reprehensible.  Marilyn Mosby is now manipulating the evidence to achieve her goal of conviction at any cost.  She is engaging in a gamesmanship common in civil cases but repugnant to her sworn duty as Baltimore's state's attorney.   

From the moment Mosby hastily announced her charges, I was alarmed, because no responsible prosecutor would have acted so quickly without carefully reviewing all the evidence.  Still, I expected some evidence to emerge that justified her actions.  When the autopsy report was leaked, I saw that my fears were well-founded.  She had no legal case.  And when the defense experts testified in Porter's case, they demolished her factual case, too.  She has gotten this far because Judge Williams has enabled her through his own buckling under the weight of this case, failing to protect the defendants from Mosby's abuse of her power. 

And her legal chicanery continues.  After successfully persuading Judge Williams to order Porter to testify against co-defendant Officer Caesar Goodson, a novel ruling, she now wants Porter to testify against the arresting officers and their supervisor even though she once thought Porter was irrelevant to those cases.

Irrelevant because she claims that Gray told Porter he couldn't breathe at the fourth stop of the transport van, well after the time of arrest. But because Porter disputed this at his trial, she now wants him to testify to his version. She called him a liar for saying it at his own trial -- and got a hung jury out of it -- but now will present him as a truthful witness at the trials of arresting officers, suborning, under her view of the case, perjury.  The actual truth doesn't matter as long as she gets a conviction on somebody. 

Or maybe Mosby doesn't really plan to call Porter and is just playing another game, the postponement game. Goodson's trial was postponed while Porter appeals the order for him to testify against Goodson.  It may be that Mosby just wants to force the postponement of the other trials as well. If Judge Williams compliantly rules that Porter has to testify against the other officers, even if prosecutors think he's a liar, or won't really call him to the stand, those cases will also be postponed, and Mosby won't have to risk any embarrassing acquittals until the Goodson case is resolved.

Either way, this behavior typifies Mosby and her trial attorneys/enablers Michael Schatzow and Janice Bledsoe. They pursue not the truth, but in the words of Mosby, "justice for Freddie Gray."  And they will trample over the law, the evidence, their ethical responsibilities and real justice to get there.

The Mindset of Judge Williams, and the Hypocrisy of Doug Colbert

Judge Barry Williams has revealed once and for all his mindset: that he will allow prosecutors to do anything they want in their zeal to criminally convict the police officers they have accused of killing Freddie Gray.

At this point, having listened to all of the evidence, Judge Williams knows full well that they are not criminally culpable.  Any fair-minded person who understands the law and knows the facts understands this.  Yet Judge Williams refuses to step in to protect their legal rights.  Instead he is handing prosecutors every possible tool to convict them.

His latest decision to force Officer William Porter, a defendant in the case, to testify in the case of co-defendant Officer Caesar Goodson, is, as he acknowledged "uncharted territory." In addition, as he likewise admitted, it would be "nigh impossible" to prove that Porter's testimony would not have an impact on his own re-trial.

And yet Judge Williams ordered the testimony.  His gut tells him - as it tells all of us in the legal community - that his ruling  fundamentally re-interprets the Fifth Amendment as we have understood it through many decades of Supreme Court rulings. But instead of saying, no, I won't go that far, Judge Williams, consistent with every other major ruling save one, gave prosecutors exactly what they asked for.

The only significant decision Judge Williams made that could be said to favor the defendants was to order individual trials for each defendant.  Yet now he has perverted that ruling by forcing Porter to testify in a co-defendant's trial, something he clearly could not have done had they been tried together.

And now comes the news that Judge Williams will let an expert in Goodson's trial testify that police officers sometimes give defendants "rough rides."  Mind you, prosecutors never alleged in their charging documents that Goodson gave Freddie Gray a rough ride.  They have provided no evidence whatsoever that such a ride occurred. And despite having eight months to prepare their case, they only submitted the name of this expert witness at the last minute.  Faced with the prospect of not having Porter testify that Goodson knew Gray wanted a medic (which still does not make Goodson guilty of a crime), they are grasping at straws.

Experts are employed and relevant at trial if they can help juries interpret facts. However, there must first exist some facts to interpret.  Judge Williams intends to allow prosecutors to present evidence that some officers sometimes deliberately knock their prisoners around in their vans by rough driving, so that the jury can speculate, out of thin air, that Goodson must have done this to Freddie Gray. If Officer Goodson is convicted, he will have solid ground for reversal on this issue alone.

But trial judges need to ensure a fair trial the first time around, which Judge Williams has failed to do. However positively his personality and demeanor projects to the media and court observers, that takes a back seat to his number one duty: making the legally correct rulings.  

Nevertheless, I do not believe that Judge Williams acts in bad faith. I can't say the same for Doug Colbert, who teaches law at the University of Maryland law school, and who is all over the news these days as an "expert" in the Freddie Gray case.  Colbert's claim to fame is a lawsuit he and Michael Schatzow (yes, the lead prosecutor in the Freddie Gray case) filed to force Maryland taxpayers to pay for attorneys for all arrested persons when the first bail decision is made. I won't review the merits of that issue now -- anyone interested can see my views elsewhere in my blog.  

But in the course of that lawsuit Colbert deceived Maryland courts by making misleading factual claims. And within the Baltimore criminal justice system, he was known for the same behavior when he advocated a point of view.  He would use his law students to gather "facts" to support his preconceptions, facts that did hold up to scrutiny.  

Now in his role as media "expert" he is anything but reliable. Experts in legal matters ought to present unbiased explanations. Colbert has been nothing but obvious in his support for his buddy Schatzow's efforts in the Freddie Gray case. As a former career prosecutor, I believe that Schatzow has violated the fundamental duty of a prosecutor, which is to follow the evidence and the law wherever it leads. In this case, I believe the officers are innocent of any crime, not because I desire that conclusion, but because  the law and evidence take me there. Colbert, however, wants a conviction.

Here he is, in his own words:

What's never happened before is to prosecute police officers. I mean, when you look at it, you know, the research shows that there's been four convicted police officers in the last ten years throughout the country. So we're dealing with something that's brand new, here. And the local prosecutor is doing something that most local prosecutors never do. They're not only bringing charges, but they're determined to convict.  This is highly unusual.

He falsely asserts in the first statement that police officers are not prosecuted.  (A low conviction rate is not the same as not prosecuting.)  And he sneers at the efforts that prosecutors do make when they bring charges:  "Most prosecutors,"  he alleges, are "never" "determined to convict."  Only Schatzow is determined, which is "highly unusual."  

 Judge Williams decision to force Porter to testify in Goodson's case has sent a chill down the spine of  criminal defense attorneys and other defenders of the Bill of Rights. It should have sent a chill down Colbert's spine, too, as someone who advocates for defendants and constitutional rights. But Colbert has no worries at all, and dismisses any concerns Porter might have because the prosecution already has "sufficient testimony and evidence" against him. And if the State doesn't force Porter to testify in the other co-defendant cases, here's what Colbert says would happen:

"...everytime you had co-defendants they'd all gang up together and say, look, everybody keep quiet. Let's, let's have a code of silence. Let's not cooperate."

Well, duh.  Welcome to our world. That's exactly what prosecutors have had to contend with in every co-defendant case from time immemorial.  If prosecutors can't prove their case without the testimony of one co-defendant, they try to work out a plea deal for that testimony. But until now, no one has tried to force one co-defendant to testify in another co-defendant's case the way Schatzow has.

With Colbert's full approval. Why? Because he wants these officers convicted. The end justifies the means. 

That's not an expert. That's not a law professor.

That's a hypocrite.