Monday, January 18, 2016

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.


  1. Sounds like a good old-fashioned example of a "Kangaroo Court." Gosh, no wonder the City of B-More is considered a cesspool.

  2. Another interesting analysis. Thanks.