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. 


  1. Another excellent comment on the Freddie Gray trials. I think you're on to something fishy at the Court of Appeals. That they have not yet published their reasons for forcing Porter to testify speaks volumes about their own sensitivity to politics. I'd hoped for better from Chief Judge Barbera.

  2. They didn't reasonably believe the knife was illegal. The arresting officer described the knife in the report and also quoted the ordinance banning switchblades. The knife he described doesn't have an "automatic spring," a "switch" or "other device" to open the blade.

    1. I would note that after claiming the knife was legal at the outset, the prosecutors have essentially abandoned that line of argument.

  3. I like your acknowledgement that police officers sometimes plant evidence. How do we know the knife wasn't planted here?

    Apparently Gray said that evidence was planted on him during a previous encounter:

    1. The prosecution has thrown the book at these officers, yet omitted that charge.

  4. I had the unfortunate pleasure of having Colbert in law school a few moons ago. He publicized his belief that all poor black defendants in the criminal justice system are merely victims of society and none can be guilty of crime because it's society's fault for neglecting them. The fact that people keep treating him as some kind of "expert" and as if his positions are anywhere close to neutral is absurd.