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.