Bet on the Baltimore Police Show Trials Continuing

The acquittal of Baltimore City police officer Caesar Goodson in the Freddie Gray case has led to a flurry of speculation as to whether state's attorney Marilyn Mosby will continue the prosecutions of Goodson's fellow officers, having so far lost two of three (with hung jury in the other).  The speculation is misplaced.  These trials are political, not legal in nature.  Were Mosby a competent and ethical prosecutor, she would have never brought the cases.  If she drops charges against the remaining officers she will be ruined politically, and she is not about to let ethical or legal scruples guide her now.

Mosby pursued the prosecutions out of purely political motivation from the start, in the wake of Gray's death and the riots that followed, absurdly taking the side of the rioters rather than of the law-abiding citizens of the city.  The officers were charged before a thorough inquiry into Gray's death could be completed by professional police investigators, and instead went forward based mostly on the biased and cursory work of Mosby's own office.  Since that time, Mosby and her prosecution team have repeatedly tried to hide evidence uncovered during their investigation, in clear violation of their legal and ethical duties.

Although it seemed unlikely that the officers could receive fair trials in the racially polarized city, especially after Mosby publicly and forcefully prejudged their guilt, she vehemently opposed a change of venue, successfully forcing the trials in city courts.  The judge who denied the change of venue was Barry G. Williams.  Williams was then assigned to try all the cases, despite the strong possibility that defendants might ask for bench trials rather than take their chances with jurors who might let emotion or fear sway their decisions.

This is exactly what happened when the jury in the trial of the first officer, William Porter, deadlocked.  That led the second officer, Edward Nero, to request a bench trial before Williams.  

Mosby no doubt thought she had a ringer in Williams, an African-American jurist who had previously served as a civil rights prosecutor.  And Williams's early decisions did not disappoint. Not only did he deny the defendants changes of venue, but he ruled in favor of the prosecution on two other critical issues.  First, after Mosby decided to retry Porter, Williams ruled that Porter could be compelled to testify under only limited immunity in the trial of Goodson, which indeed happened.  Second, Williams ruled that the fact that police found a folding knife on Gray during his arrest could not be presented in court.  The type of knife Gray had, while legal in most of Maryland, is illegal to possess in Baltimore City.  Ludicrously, Mosby's office argued that the knife was legal, although clearly Gray believed it was not (which is why he fled police when they saw him), and certainly the officers who arrested Gray realized he possessed an illegal weapon.  Rather than resolving the issue, Williams punted, giving the prosecution the advantage.

Since then, Williams has proved to be a thorn in Mosby's side, acquitting Nero and now Goodson.  Given William's ruling in Goodson's case, it is practically impossible to see him convicting Porter, in his retrial, or another defendant, Sergeant Alicia White.  The charges against Porter and White relate to the time after Gray's arrest during his transport to booking when he suffered his fatal injury.  The evidentiary chain of events, as found by Williams in Goodson's trial, show that Porter was less responsible for Gray's well-being than Goodson, while White's involvement was even more minimal and supervisory.  Reading Williams's opinion in Goodson's case, it's hard to see how he could convict Porter or White.  Both defendants are sure to request bench trials. 

Mosby almost surely will demand that Williams recuse himself before trying either Porter or White, but if he refuses, even she should understand that those cases are unwinnable.  

Fortunately for Mosby, she doesn't have to cross that bridge yet.  The Gray case essentially involved two sets of officers, by chance one all white, the other all black.  Goodson, Porter, and White (all black) were (or are) implicated in Gray's transport and death.  The other three officers – Nero, Garrett Miller, and Lieutenant Brian Rice (all white) – were involved in Gray's initial arrest.  Williams acquitted Nero, but as I noted here, he did so on narrow grounds.  Even under the prosecution's theories of the case, Nero was the least culpable officer, having had little role in Gray's arrest or transport. 

The next officer up for trial is Lieutenant Brian Rice.  Rice was the officer who initiated the chase that led to Gray's arrest and directly supervised it.  The prosecution's theory of the case against the three arresting officers is novel and also preposterous – that they made a technically improper Terry stop (a stop-and-frisk based on reasonable suspicion of criminal activity) and for that are criminally liable.  Rice (like Nero and Miller a bicycle cop) caught Gray's eye in a crime-ridden section of West Baltimore and gave chase, joined by the other two.  The prosecution doesn't allege that this was improper, as it is well established that flight in such an area is sufficient grounds for a Terry stop.  But when they caught Gray, they placed him in handcuffs, thereafter discovering the knife.  The whole of the prosecution's case against these three officers boils down to Mosby's contention that they should not have cuffed (and thereby arrested) Gray, merely have patted him down.

Now of course, had they just done that, the officers would have discovered Gray's knife anyway and then arrested him – which is why the prosecution had to argue that the knife was legal (when it almost certainly was not).  As it happened, placing the recalcitrant Gray in cuffs at the time was downright smart, since he might otherwise had gone for the knife, placing himself and the officers in greater danger.  Taking the knife out of the equation helps Mosby. 

Williams did not deal with the prosecution's odd theory of the case in Nero's trial.  He seemed to deliberately avoid it.  That leaves hope for Mosby that Williams just might buy into the prosecution's argument in Rice's trial or afterward Miller's.  Certainly, it is more than enough to keep Mosby going in these political show trials, and the fact that both of these officers are white probably helps.

Will she ride them all out for her own political interests, at the cost of these officers' lives and reputations, the expense of the taxpayers, and the peace of the city she is supposed to serve?  It's a good bet she will, and if she loses them all, she'll blame the "racist" system for it – regardless of the fact that the judge and half the defendants are black.

For sure she will try Lieutenant Rice.

The acquittal of Baltimore City police officer Caesar Goodson in the Freddie Gray case has led to a flurry of speculation as to whether state's attorney Marilyn Mosby will continue the prosecutions of Goodson's fellow officers, having so far lost two of three (with hung jury in the other).  The speculation is misplaced.  These trials are political, not legal in nature.  Were Mosby a competent and ethical prosecutor, she would have never brought the cases.  If she drops charges against the remaining officers she will be ruined politically, and she is not about to let ethical or legal scruples guide her now.

Mosby pursued the prosecutions out of purely political motivation from the start, in the wake of Gray's death and the riots that followed, absurdly taking the side of the rioters rather than of the law-abiding citizens of the city.  The officers were charged before a thorough inquiry into Gray's death could be completed by professional police investigators, and instead went forward based mostly on the biased and cursory work of Mosby's own office.  Since that time, Mosby and her prosecution team have repeatedly tried to hide evidence uncovered during their investigation, in clear violation of their legal and ethical duties.

Although it seemed unlikely that the officers could receive fair trials in the racially polarized city, especially after Mosby publicly and forcefully prejudged their guilt, she vehemently opposed a change of venue, successfully forcing the trials in city courts.  The judge who denied the change of venue was Barry G. Williams.  Williams was then assigned to try all the cases, despite the strong possibility that defendants might ask for bench trials rather than take their chances with jurors who might let emotion or fear sway their decisions.

This is exactly what happened when the jury in the trial of the first officer, William Porter, deadlocked.  That led the second officer, Edward Nero, to request a bench trial before Williams.  

Mosby no doubt thought she had a ringer in Williams, an African-American jurist who had previously served as a civil rights prosecutor.  And Williams's early decisions did not disappoint. Not only did he deny the defendants changes of venue, but he ruled in favor of the prosecution on two other critical issues.  First, after Mosby decided to retry Porter, Williams ruled that Porter could be compelled to testify under only limited immunity in the trial of Goodson, which indeed happened.  Second, Williams ruled that the fact that police found a folding knife on Gray during his arrest could not be presented in court.  The type of knife Gray had, while legal in most of Maryland, is illegal to possess in Baltimore City.  Ludicrously, Mosby's office argued that the knife was legal, although clearly Gray believed it was not (which is why he fled police when they saw him), and certainly the officers who arrested Gray realized he possessed an illegal weapon.  Rather than resolving the issue, Williams punted, giving the prosecution the advantage.

Since then, Williams has proved to be a thorn in Mosby's side, acquitting Nero and now Goodson.  Given William's ruling in Goodson's case, it is practically impossible to see him convicting Porter, in his retrial, or another defendant, Sergeant Alicia White.  The charges against Porter and White relate to the time after Gray's arrest during his transport to booking when he suffered his fatal injury.  The evidentiary chain of events, as found by Williams in Goodson's trial, show that Porter was less responsible for Gray's well-being than Goodson, while White's involvement was even more minimal and supervisory.  Reading Williams's opinion in Goodson's case, it's hard to see how he could convict Porter or White.  Both defendants are sure to request bench trials. 

Mosby almost surely will demand that Williams recuse himself before trying either Porter or White, but if he refuses, even she should understand that those cases are unwinnable.  

Fortunately for Mosby, she doesn't have to cross that bridge yet.  The Gray case essentially involved two sets of officers, by chance one all white, the other all black.  Goodson, Porter, and White (all black) were (or are) implicated in Gray's transport and death.  The other three officers – Nero, Garrett Miller, and Lieutenant Brian Rice (all white) – were involved in Gray's initial arrest.  Williams acquitted Nero, but as I noted here, he did so on narrow grounds.  Even under the prosecution's theories of the case, Nero was the least culpable officer, having had little role in Gray's arrest or transport. 

The next officer up for trial is Lieutenant Brian Rice.  Rice was the officer who initiated the chase that led to Gray's arrest and directly supervised it.  The prosecution's theory of the case against the three arresting officers is novel and also preposterous – that they made a technically improper Terry stop (a stop-and-frisk based on reasonable suspicion of criminal activity) and for that are criminally liable.  Rice (like Nero and Miller a bicycle cop) caught Gray's eye in a crime-ridden section of West Baltimore and gave chase, joined by the other two.  The prosecution doesn't allege that this was improper, as it is well established that flight in such an area is sufficient grounds for a Terry stop.  But when they caught Gray, they placed him in handcuffs, thereafter discovering the knife.  The whole of the prosecution's case against these three officers boils down to Mosby's contention that they should not have cuffed (and thereby arrested) Gray, merely have patted him down.

Now of course, had they just done that, the officers would have discovered Gray's knife anyway and then arrested him – which is why the prosecution had to argue that the knife was legal (when it almost certainly was not).  As it happened, placing the recalcitrant Gray in cuffs at the time was downright smart, since he might otherwise had gone for the knife, placing himself and the officers in greater danger.  Taking the knife out of the equation helps Mosby. 

Williams did not deal with the prosecution's odd theory of the case in Nero's trial.  He seemed to deliberately avoid it.  That leaves hope for Mosby that Williams just might buy into the prosecution's argument in Rice's trial or afterward Miller's.  Certainly, it is more than enough to keep Mosby going in these political show trials, and the fact that both of these officers are white probably helps.

Will she ride them all out for her own political interests, at the cost of these officers' lives and reputations, the expense of the taxpayers, and the peace of the city she is supposed to serve?  It's a good bet she will, and if she loses them all, she'll blame the "racist" system for it – regardless of the fact that the judge and half the defendants are black.

For sure she will try Lieutenant Rice.