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.  


  1. Page--your analysis ought to be dispositive of all the Freddie Gray charges. Too bad we can't compel Judge Williams to read it! I for one am indeed grateful that Williams is as unpolitical as he is. I don't think we can expect him to put an end to this fiasco as a matter of law. I think he did indeed postpone the verdict for three days just to make sure there'd be no trouble over Preakness week-end, which in itself puts extra strain on the police.

  2. "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."

    Wouldn't that charge motivate a change in policy for the Baltimore police? In this instance Nero was found not guilty, but the principle remains. The prosecutor says in effect to the police "if your arrest is later found to be without probable cause you will be charged with a crime." In light of that, it seems to me that police supervisors would instruct officers not to make an arrest unless they have absolute certainty that probable cause exists. Or worse yet, what officer would want to risk his career and his liberty by making any arrest? I mean, legal scholars can disagree over what counts as probable cause, but in Baltimore it appears that the police are supposed to have perfect judgment in that regard.

  3. We appear to have two cases, one in Ferguson and one in Baltimore, where prosecutors felt pressured to take immediate action in order to to prevent civic unrest. The Ferguson prosecutor chose complete disclosure of all of the evidence in front of a Grand Jury for which he was roundly criticized in some circles. In Baltimore the prosecutor chose to lay charges either as the result of a rush to judgment, or irrespective of the evidence.

    If the decision in the later was made by Shatzow, let's hope voters in Baltimore do the right thing and rid themselves of an incompetent State Prosecutor for Baltimore when they get the chance.

  4. Dear Ms Croyder, I have only come to know of your blog since this case. I wanted to let you know how much I appreciate your incite and ability to decifer and explain in plain terms some of the relative issues with this case.
    In my opinion your clearminded analysis of this entire debacle has been spot on. Your writing has been the lifeboat of reason in a sea of bias. I look forward to your next commentary. Sincerely, Appreciative

  5. What a messed up world we live in.

    funny how the other passenger didn't have one injury, huh?

    Let's cross our fingers and pray for the next 5.

  6. I know two medical professionals as well as myself who concluded from the

    video of Freddie Gray being hauled to the van that he was already paralyzed

    before he got to the van. Furthermore, it appears that his spine was

    snapped by roughly hauling him to his feet, as you can hear him yell in

    agony at that spefici moment.
    Now I have never heard the details of what happened immediately prior to

    this incident, but here are are my worst suspicions:-

    Freddie Gray was being pursued on a bike by bike cops. They tazed him and

    he fell of his bike and injured his spine.
    The morons interpeted his inability to move as "disobeying a police

    officer" and called for reinforcements.
    A burly cop came and hauled him to his feet, snapping an already injured

    spine and causing him to cry out in agony.
    They then dragged him, paralyzed, to the van and threw him in.
    He was now unable to breathe due to paralyusis from the neck down and

    Instead of throwing him the van, he needed a neck brace, stretcher and

    ambulance ride to the ER.

    While it may well have been an accident, it was caused by gross negligence

    by the police.

  7. You have to wonder why these prosecutors, hell-bent for convictions, never presented such a theory.

    1. He always looked seriously injured to me outside the van, yet so many, ahem, experts said, nah, he wasn't.