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.


  1. What civil recourse does Officer Nero have, if any against the State's Attorney?

  2. The whole charade is a travesty. Has been since the beginning. What a waste of taxpayer's money...meanwhile, back at the ranch, Baltimore/DC and Chicago account for more than 50% of the homicides in the U.S. Go figure...duhhhhhhh!

  3. Thank you, Page, for your insightful critique of this entire mess.

  4. The knife was- and is- legal. A spring-assisted knife isn't a switchblade. The only thing that saves the arresting officers on that front is the courts have decided those who enforce the law don't have to know the law.

    1. I take it your not actually following the cases? The overzealous prosecution is not even using that theory.

    2. Are you kidding. It has now been well documented that the officer charged Mr. Gray under city law. The knife has been ruled to be illegal by the police department under the city ordinance. Please check your facts before commenting.

  5. Miss Croyder,
    As I stated in an earlier comment to your A Texas-Sized Lesson, I'm not only troubled by the speed of the charges, I'm still wondering who did the investigation and what is their experience in death investigations.

    It was obvious from the show-boating reading of the charges by Mosby, to the most recent trial that there was no criminal intent on the part of any of the six officers. These officers were charged for something they didn't do--put a seatbelt on the arrestee. It's just mind boggling how a departmental general order/regulation infraction was transformed into a crime. Of course it's only an infraction if the officer is aware of the regulation.

    Let's say criminal charges were never filed, but the family brought a civil suit against an officer(s). The following was reported in The Sun on June 24, 2015:
    Though Gray was loaded into the van on his belly, the medical examiner surmised that he may have gotten to his feet and was thrown into the wall during an abrupt change in direction. He was not belted in, but his wrists and ankles were shackled, putting him "at risk for an unsupported fall during acceleration or deceleration of the van."

    The officers put the arrestee in that position, because he had apparently been tossing himself around in the van. The medical examiner speculates that Gray was put at risk for an unsupported fall. For Gray to have fell, he would have had to have stood up. So he took himself out of the safe position the officers had put him in. In a Maryland civil case, wouldn't that be deemed as contributory negligence? And as a result, the family would not recover any damages?

    Speaking of speculation on the part of the medical examiner, how could she make manner of death anything but accidental, or undetermined?

    Once again, thanks for your blog
    Charles Gilbert