Friday, May 27, 2016

Brave Judge or Troubling Acquittal?

Billy Murphy, lawyer for the Freddie Gray family and booster of State's Attorney Marilyn Mosby, called Judge Barry Williams "brave" for his acquittal of Officer Edward Nero.   If I were the other officers still pending trials, I would use that as exhibit A in again requesting that Williams move the trials out of the city. If it took courage for Williams, a professional judge trained to make legal decisions, to acquit Nero, think of the pressure that ordinary jurors feel amidst the volatility of Baltimore city to convict some officer of some crime to preserve the peace.

It didn't take judicial bravery to acquit when the facts demanded it even before the trial began.  The prosecution's "case" got even worse at the trial, showcasing the blind, ideological abuse of power in the hands of Mosby and trial prosecutors Michael Schatzow and Janice Bledsoe.

I respect the fact that Judge Williams did his job.  But he continues to show signs that he is not quite up to this case, that the pressure affects his decisions.  It's curious, for example, that he would make Nero wait four days on pins and needles for his acquittal.  Could it be that Williams worried about potential unrest in Park Heights and greater Baltimore during  national coverage for the Preakness Stakes, and what that would mean for the city?  Is public reaction his overriding concern as trial judge?

While that is speculation, a more concrete worry is Williams' failure to make the legal rulings he needs to make.  He is determined to send these trials to the fact finders for a decision, and by refusing to dismiss the charges, gives credence to the belief that Mosby and her team were justified in bringing them.  By allowing juries to make decisions reserved for judges, Williams imperials justice for the remaining officers waiting for trial.  The hung jury in the Officer William Porter trial, another case that should have been a slam-dunk acquittal, proves the point. 

Let's take the assault charge against Nero.  Williams decided that since Nero was not the officer who detained or arrested Gray, he was not guilty.  But that conclusion was uncontroverted at the end of the prosecution's case.  The legal standard at that point is whether a reasonable fact finder, viewing all evidence in the light most favorable to the prosecution, could find a defendant guilty beyond a reasonable doubt.  The state's own witnesses made it clear that Nero was neither the detaining nor the arresting officer.  There was no factual dispute to be resolved, and Williams should have dismissed the charge then.  He didn't, and had this a been jury trial, Williams would have allowed jurors to make a legally insufficient finding had they convicted.  (Williams also failed to address the issue of whether an arrest without probable cause is a criminal assault, perhaps because he didn't need to for Nero's case. But it guarantees that the other arresting officer, Garrett Miller, will go to trial.)

Williams acquitted Nero of reckless endangerment because he found it reasonable for Nero to think that another officer had responsibility for seat belting Gray. That assumes that the failure to seat belt "created a substantial risk of death or injury" (italics mine), the standard for reckless endangerment.  Yet no such proof was offered. Prisoners are safely transported without seat belts all the time.  Not using a seat belt isn't even evidence of negligence in Maryland, and it carries a mere $50 fine.  One Maryland law requires that transport vehicles for intellectually disabled children have a seat belt for each seat, but there's no such requirement for other children or transport vehicles.  It appears that our law-makers think of seat belts as measures that help to prevent harm, not create risk. The risk is created by other elements - speed, other drivers, etc.   Maryland legislators even specifically excepted the use of a motor vehicle from the crime of reckless endangerment!  But Mosby invented herself a new crime without the legislature, one of omission: the crime of not doing something to lessen the risk of transportation in moving vehicles.  And Williams has enabled this novel crime in both the Porter and Nero trials by failing to toss it on legal grounds. 

Nero also faced two misconduct charges, one for Gray's arrest (acquitted because Nero didn't make the arrest) and the other for not placing a seat belt on Gray.  Williams ruled that the state failed to prove that Nero knew about the new police regulation on seat belts.  But he wrote his verdict as though Nero might have been guilty of a crime had he known about the police regulation and consciously (even if in good faith) did not follow it.  Williams failed to mention the elements of the crime that he gave to the jury in the Porter trial: that Nero had to have acted in bad faith or with an evil motive.  Without those elements, any officer who failed to follow one of the incredibly numerous police regulations of which he had notice would be guilty of a crime, even if leadership never enforced it or he forgot about it.  On this theory of misconduct, Mosby is herself a criminal for failing to follow ethical guidelines when announcing charges against the six officers.  

At no time in the Porter or Nero trials did prosecutors even attempt to prove bad faith on the part of the officers.  It's all about a local police rule (not shared in sister counties) that required, on paper but not in practice, a seat belt. Not only is failure to seat belt not a crime, it's not even admissible in a Maryland civil court.  Yet Judge Williams has now twice failed to toss misconduct charges for legal insufficiency.

And so I fear that the van driver, Officer Caesar Goodson, a man with no blemishes on his record in some 16 years of service, is in jeopardy of an unjust conviction because he bears the most sensational of the charges (murder), and is the most likely to be scapegoated for Gray's death.  If so, he'll be exonerated on appeal - eventually, and at great personal and financial cost.  But Judge Williams could stop the farce now, for all the officers, for all of Baltimore, and for justice, by dismissing the charges for legal insufficiency. Now that would be brave.   

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It's Not a Game, Schatzow.

One of the weirdest things about the Nero trial was how the judge deliberately kept out any evidence about the knife found on Gray.  When Nero's attorney asked Miller it, Judge Williams sustained the prosecutor's objections.  Huh?  Wasn't this all about whether the police had probable cause to arrest? Apparently - behind closed doors - Mosby's trial team conceded they were wrong about the knife, and wanted to limit the argument to a new and novel theory of a crime.

Schatzow, a civil litigator by trade, has pulled out all stops in pushing the law as far as he can take it  to convict somebody of something.   He's oblivious to the consequences.  Even if officers arrest without probable cause, charging them with crimes for a mistaken belief renders them powerless to perform their jobs.  None of us could work if each mistake carried criminal consequences.  Most cops are high school graduates, not legal scholars, called upon to make split second decisions in high pressure atmospheres.  It's untenable to expect a standard of perfection.

Schatzow doesn't care about policing or public safety, only about making examples of these officers. So when his first theory of no probable cause failed (in his hasty investigation, he failed to read the Baltimore city code about knives), he came up with theory #2, which I addressed in my last blog: that anything less than instantaneous action to investigate the reason for a detention amounts to a crime. He also tried to persuade Judge Williams - who thankfully gave it short shrift - that an officer who assists another after a detention or arrest is an accomplice or co-conspirator.

Schatzow won the day in the Maryland Court of Appeals on his contention that one co-defendant can be forced to testify against another when both are pending charges, an issue I expect to see in the Supreme Court at some point.  But in a moment of ironic justice, he got his butt kicked when he tried it:  Miller, the compelled witness, took responsibility for the arrest of Gray and exonerated Nero from responsibility.  Schatzow deserved the whipping.  Real prosecutors use plea agreements to interview co-defendants and obtain and evaluate information.  Schatzow wanted it all: convictions on Nero and Miller both, giving no quarter to either.

But though Schatzow won't give up, the law is clear that neither Nero nor Miller committed a crime.

  • An officer may detain a suspect if he or she has reasonable suspicion to believe a crime was committed.  This is a lesser standard than probable cause, the standard needed for an arrest.  In a high crime area, unprovoked flight from a police officer may constitute reasonable suspicion.
  • A suspect may be detained for a reasonable amount of time to investigate an officer's suspicions to determine whether to arrest or let a suspect go.  What is reasonable depends upon the circumstances.  I know of no case holding that a 2-3 minute delay is unreasonable - that would be absurd.  Much, much longer detentions have been upheld as reasonable.
  • Handcuffing a suspect - the "hard take-down" - does not, by itself, turn a detention into an arrest.  Flight or reasonable belief that a suspect may be armed will justify handcuffing.
  • The collective knowledge of the police counts in assessing the reasonableness of a detention.  An officer acting on the instructions of another does not have to have first hand knowledge of why he detained a suspect. 
  • Officers may frisk a suspect for weapons to protect their safety if they have a reasonable belief that a suspect may be armed.  In the Gray case, the nature of the area and Gray's flight lent itself to such a belief, such that whether the knife was found as part of a frisk or in looking for an inhaler at Gray's request, its recovery was lawful and justified Gray's arrest.  

Schatzow, the civil litigator, ignored all of this, attempting to blame Nero and Miller for Gray's death through the back door of an illegal arrest.  "Illegal" in this sense doesn't mean crime, but a violation of the 4th amendment protection against unreasonable seizures, which, when it occurs, results in dropped charges and civil suits.  Only officers acting with bad faith or evil motive can be charged criminally - and Schatzow has made zero effort to prove such a state of mind for any of these officers. Mere violation of rules or standards constitute crimes for him.    

For Schatzow, it's all just a legal game.  How to win no matter what the obstacle.  Time for him to go back to civil litigation, where standards of ethics and justice apparently don't apply.  

Monday, May 23, 2016

Baltimore's Dangerous Prosecutors

The criminal trial of police officer Edward Nero, the second of six scheduled in the aftermath of Freddie Gray's death, proves what many professional observers feared when State's Attorney Marilyn Mosby so hastily and sensationally charged the six officers with crimes a year ago: Baltimore's top prosecutors are oblivious to their ethical duties and dangerous to public safety.

The trial of Nero made it abundantly clear that he did nothing wrong.  In response to a call from a supervisor, Officer Garrett Miller detained and handcuffed Gray.  Nero joined him, and one of them found an illegal knife on Gray while looking for the inhaler Gray requested. Gray was subsequently placed and then repositioned in a police van, with Nero assisting but not in charge of the process.  Gray then suffered a freak and fatal injury sometime while in the van, at some point and in some way no one knows for sure. What we do know is that no police officer beat him or deliberately endangered him.  

The case against all the officers is, at its core, homicide by no seat belt.  It's an entirely new crime being invented by Baltimore's prosecutors, and they are pulling out all stops to make it stick.

But the charges that always seemed the most pernicious to me were the ones against Miller and Nero for arresting Gray. By charging them criminally, Mosby and her deputies, Michael Schatzow and Janice Beldsoe, told police officers that any mistake in the assessment of probable cause, even if the police officers acted in good faith, is a crime.  But the theory exposed by the trial is even more dangerous to public safety that that.  

They argued to trial judge Barry Williams that in the 2-3 minutes after Gray was handcuffed, but before the illegal knife was found on him, Nero, by not instantly finding out why the supervisor wanted Gray detained, committed a crime.   In other words, the mistake they made was neither in the chase (for which they had reasonable suspicion) nor in the arrest for the knife (for which they had probable cause.)  In was in the extremely short delay before finding the knife in which they hadn't pulled out all stops to find out why they were asked to detain Gray.

It's a breathtakingly astonishing theory for a crime.  No police department anywhere could operate under such a constriction.  Mosby's motivations are now laid bare: she wants criminal convictions no matter what the truth, the facts, the law, or the impact on public safety.

Mosby first announced last year that Gray's knife was legal. Oops, wrong.  But rather than reassess her  judgment, she charged forward with this new, incredibly specious and dangerous argument.  In fact, she and her deputies have employed legal gamesmanship to achieve their ends throughout this drama.  They perverted the intent of the witness immunity statute to make one co-defendant testify against another, something we have yet to see them do against other criminal defendants.  (It backfired on them when they made Miller testify against Nero, but the fact that they did it showed their desperation to convict.)  They also used it as a tool to postpone cases they were not yet ready to try.  They have taken the routine practice of not seat-belting prisoners in a police van and turned it into a crime, despite the fact that the officers could not have anticipated that Gray would break his neck.  And now any police officer who takes a few minutes to recover from a chase or collect his thoughts is guilty of crime if he did not have first-hand knowledge of the reason for detaining a suspect.

At least, that's the way it is in Mosby's world.  Never mind that legal precedent is against her, or that her own prosecutors are arguing the opposite in their everyday cases.  Mosby's objective is politics and pandering, not justice.

So, Baltimore, when one of your citizens is a victim of crime, don't be surprised if the police do nothing more than take a report.  Detaining a suspect puts them in legal jeopardy under the Mosby regime.  And don't expect the prosecutor's office to help you out, either.  Their leaders are either watching the Gray trials (Mosby) or spending the first two years of their administration inventing new crimes for which to convict its police officers.

Friday, May 6, 2016

Thoughts While Waiting on the Next Freddie Gray Trial

What's Up with the Court of Appeals?
When Officer William Porter appealed a ruling that he had to testify against his co-defendants in the Freddie Gray case while pending his own re-trial, the Court of Appeals swooped in.  Although the appeal was made to the intermediate Court of Special Appeals, the state's highest court decided to intervene, presumably to keep the trials moving along.    

And they made their minds up quickly, issuing an order affirming the trial judge's order within days of hearing arguments.  But now, two months later, we still await their justification.  (And prosecutors have taken full advantage, making yet another co-defendant to testify against a fellow officer.  Unlike Porter, who took the stand in his own defense in his first trial, Garrett Miller has yet to testify at all.)  

It makes me wonder: are the justices having second thoughts? Did the process of justification make them pause and reconsider the implications of their decision on the 5th Amendment and the power of prosecutors?  Are they having trouble articulating the rationale, because they don't all agree on it?  And what if a key voter has changed his or her mind - wouldn't that throw a monkey wrench into the business.

Whatever is going on, they owe the defendants a rationale, and they owe it to them now as they prepare their cases.  I was mildly surprised by the Court's decision, but willing to believe that it was based strictly on the letter of the law and precedent and would build in protections against prosecutorial abuse.  Now I wonder if they knew what they were doing when they acted with such haste.  

The Trial of Officer Edward Nero
The Baltimore Sun speculates today that Edward Nero, one of the arresting officers, may take a court trial.  From the outset, before I knew more about the evidence (or lack thereof) in the cases against the six officers, I was most disturbed by the criminal charges against the two arresting officers, Nero and Miller. 

Let's assume that these two officers arrested Freddie Gray improperly (something I don't at all concede.)  Prosecutors first claimed that Gray's knife was legal, but they should lose on this, either because it wasn't legal or because the officers reasonably believed it wasn't.  Now they claim that the officers recovered the knife improperly. 

This analysis involves a host of Fourth Amendment law - the right to chase, to frisk, to make a "hard take down" without it becoming an arrest, the subjective belief of officers versus their objective right to act, and so forth.  Lawyers argue about it and judges disagree among themselves. The line is often fuzzy and ultimately decided after the fact. What State's Attorney Marilyn Mosby has done is to criminalize any mistake an officer might make in the split second decision-making required on the street. This is so completely dangerous, so chilling to officers, that the results have been what I predicted (and some ridiculed me for): an explosion of crime while officers stand by, loathe to intervene through proactive policing.  

Let me clear: I don't approve of bully policing.  But officers who overreach can be disciplined and sued, and those who lie and plant evidence should be criminally prosecuted.  But the majority of improper arrests involve not corruption but mistakes, good-faith mistakes in the complicated area of criminal law and the 4th Amendment, and there is absolutely nothing in these cases to indicate anything other than - at worst - a mistake under duress in the knowledge or application of the law.  What they should have done will be decided coolly after-the-fact, with good arguments on either side.  

Nero must choose whether to take his case to a judge or a jury.  The jury in Porter's case already revealed how the publicity affected their decision-making, nearly convicting him of misconduct when the evidence wasn't there. Therefore, it would seem reasonable for Nero, whose case depends on the interpretation of the law, to take his case to a judge, who should fully understand the complexity of 4th amendment law and acquit him easily. However, this is a risk, as Nero would waive certain avenues of appeal and put all his eggs in one basket.  With the facts of this case, I would normally judge this to be a good risk.

But here let me quote the Sun's quotation of Doug Colbert, buddy of prosecutor Michael Schatzow, who is as phony an "expert" as there is in these trials.  Colbert justifies every questionable act of Schatzow and ruling by trial judge Barry Williams because he relishes these trials and greatly desires convictions.  (And the lazy members of the press lap it up, because he wraps himself in the role of law professor and makes himself available for quotes.) 

Here is Colbert on whether Judge Barry Williams shows any signs that he would rule in favor of Nero:
   "From what I saw, I'm not sure that Judge Williams fits within that profile."
I can see Colbert saying that, with his smug smile of approval.  But in fact, it's an indictment.  This should be an easy acquittal for Nero before a judge who is independent of politics and well-versed in Fourth Amendment and criminal law.  The fact that Williams has created this doubt through his rulings casts further mistrust on a criminal justice system that Mosby has abused for political purposes. 

At the outset I expected Williams to be fair and correct in his rulings.  He has since made me believe that he has been affected by the politics of this case.  Judges, like anyone else, are human.  But I always believe the best before I believe the worst, so for now I choose to believe that Williams thinks the best (political) results would come from city juries deciding the cases without his legal intervention, so he has steered the cases in that direction.  

But if, indeed, Nero takes a court trial before him, we will know for sure whether Williams fits the profile of independent judge or Mosby political enabler.