Monday, January 11, 2016

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.


  1. How can Stanford "Neil" Franklin be called as an expert as to the existence of any practice in BPD as to "rough rides"? He was a Maryland State Trooper for 23 years until he was recruited by the Baltimore Police Dept. as head of Education and Training. He never spent a day on the streets of Baltimore as a police officer, never arrested anybody, was never a wagon master.

    Legally speaking, the practice of "rough rides" is an urban legend. Does anyone doubt they happened? No. Can anyone prove in a court of law they happened? "Rough rides" by definition mean that the wagon master intended to drive in such a way to scare or injure the prisoner as a retaliatory gesture. For obvious reasons, no wagon master ever admitted to giving a rough ride. And unless one served at some time as a wagon master, probably not a single BPD member past or present can ever say that they ever saw or experienced firsthand a rough ride. It was just something that was understood.

    Moreover, whether the ride was perceived as "rough" by the prisoner was as much a function of the number of potholes in Baltimore City streets as well as the nature of the vehicle. The old "ice cream truck" transport wagons were built on a F-350 chassis--designed for transporting cargo, not people.

    According to urban legend among cops, "rough rides" were not an everyday thing. They were reserved for prisoners who had fought the cops while being arrested (major resisting arrest, not minor). To whatever extent such a practice once existed, the era of the BPD brass turning a blind eye ended in the late 1990s early 2000s when the civil lawsuits started costing real money. Not saying that "rough rides" have become completely extinct, but over the past 10 years or so, the frequency of "rough rides" has faded into the sunset.

    Of course, given his biases track record to date, Judge Williams will no doubt allow Mr. Franklin to testify.

  2. Doug Colbert is no defender of the rights of those accused of a crime. Doug Colbert is interested in promoting only one person--Doug Colbert.

    When I was a student at the University of Maryland School of Law many years ago, the professor who spent the most time and effort protecting the rights of the accused was Professor Michael Millemann. He took on the cases no one else wanted to -- and achieved many impressive victories at the U.S. Supreme Court. He extensively published but wasn't known outside the legal community. Why? Because Professor Millemann never promoted himself; he spend all of his time and energy promoting the rights of the under- and unrepresented.

    I am wrong in referring to Micaael Millemann in the past tense. He's still a professor at the UM law school and still putting his time and energies in representing others. If anyone every asked him to comment on the Freddie Gray trials, he would no doubt candidly respond that he had better things to spend his time and breath on. Now that is what makes an expert, a law professor -- and a great role model for the rest of us.

  3. John Burge, Drew Peterson. Two cops convicted in Chicago in the last ten years. half of all convictions in the last ten years? I think not.
    His statistics are highly suspect, and the only way I can figure he got those is:
    1) A conviction does not count until all appeals are exhausted.
    2) A conviction which happened before the time frame does not count even though appeals are not exhausted until the time frame.

    Notice how he compressed the time frame there?
    3) All convictions for off duty crimes, don't count. Even if being a cop is central to the crime. For example, extorting a criminal in off hours.
    4) All prosecutions where the officer pleads guilty don't count as convictions.

    I suspect that cops seeing the system up close are more likely to work out some deal and plead rather then go to trial, unless they have reason to believe the prosecution can't prove their case. That alone would skew statistics.

  4. The law is not black and white it is "Gray". Almost every argument favored the prosecution. This is troubling when case law supports the defense arguments. Justice in this case is truly "Gray".