Patterico's Pontifications

7/18/2016

Fourth Officer Acquittal in Baltimore

Filed under: General — JVW @ 11:14 am



[guest post by JVW]

Judge Barry Williams as found Baltimore Police Lieutenant Brian Rice not guilty of all charges filed against him stemming from the death of Freddie Gray in 2015. From the Baltimore Sun: “Williams cleared Rice, 42, of involuntary manslaughter, reckless endangerment and misconduct in office in a downtown Baltimore courtroom on Monday morning. The judge had dismissed a second-degree assault charge at the trial’s midpoint, and prosecutors dropped a second misconduct charge at the start.”

Baltimore State’s Attorney Marilyn Mosby is now zero-for-four in prosecutions against the officers who were present during Gray’s arrest, transportation to jail, and tragic death. The lone defendant who faced a jury trial, Officer William Porter, had his case declared a mistrial last December when the jury could not reach a decision. The other three defendants, Rice, Officer Edward Nero, and Officer Caesar Goodwin, all opted for bench trials in front of Judge Williams and all three have now been acquitted.

Mosby was not present in the courtroom for the verdict, and at this point common sense should suggest to her that it will be a waste of taxpayers’ resources to continue with the trials against Officer Garrett Miller, scheduled to begin next week, and Sergeant Alicia White, scheduled to begin in mid-October.

ADDENDUM: I forgot to add that further posts on the Freddie Gray situation can be found here.

– JVW

35 Responses to “Fourth Officer Acquittal in Baltimore”

  1. Good.

    Denver Guy (21d3a4)

  2. If you read through the link to the article in the Sun, you will get the obligatory quote from the presumably left-wing law professor who believes that the prosecutions should continue in order to “mak[e] sure no one else suffers the fate” that Gray faced. Leave it to an academic to justify wasting tax dollars in order to make a political point.

    JVW (eabb2a)

  3. The judge said, at one point, the prosecution was arguing that the mere failure to use a seatbelt was the crime. The defense argued (maybe they figured it out by now) that Freddie Gray suffered his fatal injury because he stood up while the van was moving (but couldn’t brace himself or break his fall because he was handcuffed)

    Sammy Finkelman (643dcd)

  4. remember the court of last resort for the black community is not the supreme court but the street. ask reginald denny or the police of dallas or baton rouge.

    freddy (5a37e2)

  5. It’s too bad Mosby can’t be prosecuted for malicious prosecution or prosecutorial misconduct. SHAMEFUL.

    Colonel Haiku (d58e4f)

  6. Sad little Perry…

    Colonel Haiku (d58e4f)

  7. Sad little Perry…

    Worse than sad is the fact that he is malevolent. Just a truly defective personality type.

    JVW (6a1e21)

  8. Judge Barry Williams is one brave (black) judge. I hope he stays safe.

    Patricia (5fc097)

  9. It’s too bad Mosby can’t be prosecuted for malicious prosecution or prosecutorial misconduct. SHAMEFUL.

    Actually, an acquittal is the basic requirement for instituting a false arrest/false prosecution charge.

    It’s just that the rest of the elements of the charge are nearly impossible to meet unless there is a whistleblower in the DA office willing to disclose the dirt.

    Steve Malynn (4bc33a)

  10. An interesting question for investigative journalists and for good government advocates is what other business of the Baltimore State’s Attorney office has been placed on the back-burner while they have chosen to pursue these reckless prosecutions. Are there other murder prosecutions that are being slow-walked or public corruption cases that are going to slip through the cracks because so many resources are being devoted to the futile prosecution of these six officers?

    JVW (6a1e21)

  11. #9… Steve… Would the withholding of exculpatory evidence suffice?

    Colonel Haiku (d58e4f)

  12. Colonel – withholding exculpatory evidence is its own tort – but it would only be evidence leading to an inference for the three elements:

    Froehlich v. Ohio Dep’t of Mental Health, 114 Ohio St.3d 286, 2007 Ohio 4161, 871 N.E.2d 1159 (“The tort of malicious prosecution in a criminal setting requires proof of three essential elements: ‘(1) malice in instituting or continuing the prosecution, (2) lack of probable cause, and (3) termination of the prosecution in favor of the accused,'”)

    The termination of the prosecution (a not guilty verdict) is really the only objective criteria, the other two criteria – Malice and Lack of Probable Cause are the nearly impossible subjective criteria to meet.

    Withholding Exculpatory Evidence can certainly give rise to an inference of Malice, and that the Prosecution was without Probable Cause – but it would have to be absolutely dis-positive evidence (as in an air-tight alibi) and not some version of he-said, she said – as a prosecutor will be given the benefit of the doubt if she chose to believe one witness over another.

    Manufacturing fake evidence would be an stronger case for malicious prosecution – as that shows both Malice and fake “probable cause”.

    Steve Malynn (4bc33a)

  13. For what its worth, Ohio pretty much follows the Restatement of Torts in the formulation of the Tort – I would only be guessing what Maryland does.

    In any case, it is an absolutely hellaciously difficult case to prove.

    Steve Malynn (4bc33a)

  14. Also, I don’t recall if Moseby referred this to a Grand Jury – if she did, and the Grand Jury indicted, then she is going to get a pass on the 2d element – probable cause.

    Steve Malynn (4bc33a)

  15. #4 freddy,

    So you admit that as a left winger, you aspire to mob violence rather than the rule of law?
    I bet you voted for Barack.

    Cruz Supporter (102c9a)

  16. The judge said, at one point, the prosecution was arguing that the mere failure to use a seatbelt was the crime

    Not “at one point”. Rice’s failure to seatbelt Gray was the entire case. All the charges were based on that one decision.

    Milhouse (5a188d)

  17. I love this line: “This Court finds that a police wagon or van constitutes a motor vehicle [duh] and that the reckless endangerment statute would prohibit prosecution of conduct arising from the use of a motor vehicle in this case, a police transport wagon. This court finds that the Reckless Endangerment charge should fail as a matter of law because the alleged reckless conduct is failing to seat belt Mr. Gray in a vehicle.”

    In other words, utterly incompetent lawyering by the prosecution. I wonder, though, if the statute simply doesn’t apply, why the judge didn’t dismiss this charge in the first place, as he did the assault charge.

    Milhouse (5a188d)

  18. It’s just that the rest of the elements of the charge are nearly impossible to meet unless there is a whistleblower in the DA office willing to disclose the dirt.

    What about discovery in the civil suit? Could that yield the evidence necessary to support a prosecution?

    Milhouse (5a188d)

  19. Greetings:

    One of the things that I haven’t seen mentioned as the Baltimore genocide has wound its way through the media has to do with a TV program that used to air on the dreaded Fox network. The program was “Cops” and it involved camera crews that followed police officers on their rounds and rounds. Every so often, an arrestee would, after being uncomfortably encapsulated in the back of a patrol car, begin to physically damage himself by throwing his body against whatever parts of the car he could reach. Alternatively, the arrestee might just try to damage the taxpayers property.

    11B40 (6abb5c)

  20. Also, I don’t recall if Moseby referred this to a Grand Jury – if she did, and the Grand Jury indicted, then she is going to get a pass on the 2d element – probable cause.

    She did, but at the last trial it emerged that the police detective who testified to the grand jury had been given a script by Mosby’s staff, and was not allowed to tell them the truth.

    Milhouse (5a188d)

  21. The judge said, at one point, the prosecution was arguing that the mere failure to use a seatbelt was the crime.

    Milhouse (5a188d) — 7/18/2016 @ 3:58 pm

    Not “at one point”. Rice’s failure to seatbelt Gray was the entire case. All the charges were based on that one decision.

    That’s what I said.

    At one point in the trial (near the end) the judge said the prosecution was arguing that the mere failure to use a seatbelt was the crime.

    Milhouse @17.

    I love this line: “This Court finds that a police wagon or van constitutes a motor vehicle [duh] and that the reckless endangerment statute would prohibit prosecution of conduct arising from the use of a motor vehicle in this case, a police transport wagon. This court finds that the Reckless Endangerment charge should fail as a matter of law because the alleged reckless conduct is failing to seat belt Mr. Gray in a vehicle.”

    So failure to use a seatbelt is, by definition not reckkless endangerment, whch the state legislature evidently must have put in to prevent motorists from being regularly charged with manslaughter.

    A difference here could be that Freddie Gray was both handcuffed, and put in an irregular vehicle, making him more vulnerable to injury than an ordinary passenger in an ordinary vehicle, and was not present voluntarily. Usually it’s the passenger’s decision not to use a seatbelt, at least in part. That was not the case here. Nor was Freddie Gray warned about the dangers of standing up while the van was in motion, especially while handcuffed, not that anybody realized it.

    In other words, utterly incompetent lawyering by the prosecution. I wonder, though, if the statute simply doesn’t apply, why the judge didn’t dismiss this charge

    He had to wait and see whether any additional reckless endangerment was alleged. He warned the prosecution, as the case came toward an end, that they weren’t alleging anything else.

    It’s not incompetent lawyering – this was a politically driven case. If they had alleged that the usual reasons that failure to belt someone in is not reckless endangerment didn’t apply, they’d maybe had had something to argue. But still, it’s hard to argue that common practice is doing something “reckless.”

    Sammy Finkelman (372aad)

  22. Thanks, Steve! I always like to be educated about things I have little knowledge of.

    Colonel Haiku (d58e4f)

  23. Sammy, the entire reckless endangerment statute doesn’t apply in a vehicle. So why didn’t the judge dismiss the charge as soon as the prosecution rested?

    Milhouse (5a188d)

  24. 23. Milhouse (5a188d) — 7/18/2016 @ 5:52 pm

    Sammy, the entire reckless endangerment statute doesn’t apply in a vehicle. So why didn’t the judge dismiss the charge as soon as the prosecution rested?

    Originally, the accusation was they ignored Freddie Gray when he complained about being in distress, and they had ignored it.

    Freddie Gray had complained, early on, but probably so he could be taken to a hospital instead of the jail, and it wasn’t genuine (they checked his condition) and in any case was not related too the injury which killed him.

    Maybe what happened here is that the prosecution dropped that claim in this case, or the judge dismissed it. The injury was such that he could not have verbally complained after it happened. So it all boiled down to the failure to use a seatbelt. They had nothing else.

    The judge let them proceed in case they did have something else, but he warned them that their case seemed to be just the failure to use a seatbelt. He didn’t rule on that until it was time.

    Sammy Finkelman (372aad)

  25. Sammy, the time to dismiss that charge was when the prosecution rested. Given what the judge said today, that the statute on reckless endangerment specifically excludes conduct involving the use of a motor vehicle, the defense was entitled to summary judgment on this charge. Nothing you have suggested even attempts to explain why he allowed the charge to proceed.

    Milhouse (5a188d)

  26. There is no summary judgment in criminal cases, and indictments only have to allege the elements of the charge. The standard for directed verdict at the end of the prosecution’s case in chief is “viewing the evidence in the light most favorable to the prosecution” which includes all permissible inferences that can be drawn from it. For verdict-verdict, there is no such requirement — the finder of fact may give evidence and testimony whatever weight it pleases and decline to draw any inferences.

    nk (dbc370)

  27. *elements of the offense*

    nk (dbc370)

  28. The naked truth is that prosecutors cannot win cases without the cooperation of the police.

    nk (dbc370)

  29. There is no summary judgment in criminal cases

    But there is dismissal for failure to make a case. That’s what the defense was entitled to here.

    indictments only have to allege the elements of the charge.

    And here it didn’t, because the statute explicitly excludes conduct involving the use of a motor vehicle. “Conduct not involving the use of a motor vehicle” is thus an element of the charge, which was not alleged.

    Milhouse (5a188d)

  30. Milhouse, NK answered your question. The earliest a court will dismiss a criminal case is as the close of the prosecutors case – anything earlier comes only as a result of proven misconduct on the part of the state.

    Steve Malynn (4bc33a)

  31. Illinois also distinguishes between involuntary manslaughter and vehicular homicide the way Maryland seems to. I had a case like that — my client was drag-racing and his friend in the passenger seat was killed when he crashed. That’s an easy one. But, this is important, the recklessness was in the operation of the motor vehicle.

    Here’s a harder one. There’s a lady in the news who put her five-year old and three-year old kids in the trunk of her Corvette and drove around town with them. Thankfully it did not happen, but what if the Corvette had been rear-ended and the kids killed? Was the recklessness in the operation of the motor vehicle or in putting the kids in the trunk and does it make a difference?

    Taking the case at hand, in a motion for a directed finding, the judge had to give the benefit of every permissible inference to the State and I presume that included the inference that the recklessness was not in the operation of the paddy wagon but in the way the prisoner was restrained. However, “when the rubber hit the road”, when it was time for a finding of guilty beyond a reasonable doubt, the Court was free to disregard that inference as not supported by the evidence beyond a reasonable doubt.

    Another reason judges are slow to dismiss criminal cases after the jurors or witnesses have been sworn is double jeopardy. The State cannot appeal, reverse the conviction, and retry the defendant, except in extraordinary circumstances such as bribery or intimidation, not for a judgment call. So the judge gave the State all the rope he could and in the end found that it was still not enough to hang the defendant.

    nk (dbc370)

  32. And here’s an interesting question, to which I do not know the answer, and I suspect varies from local practice to local practice. Does the rule of lenity — an ambiguity in a criminal statute must be construed in favor of the defendant — apply in a motion for directed verdict/finding, or does the State gets the benefit of its theory of the case until it is time for final judgment?

    nk (dbc370)

  33. Well it’s good thing for the black folks of Baltimore that the mayor and prosecutor decided upon this counter-productive witch-hunt of a prosecution, because they want to discourage police from doing this sort of thing again.

    Wait, what’s that, you say? Murders in Baltimore are up 78% as police are reluctant to do anything that might get them metaphorically burned at the stake?

    Some Dude (53806b)

  34. At what point does this farce become an ethical problem for Moseby?

    As in disbarred. The vilest person to hold the position of prosecutor since
    Nifong. At the very least I hope the cops bankrupt her. And the city. Normally

    Steve57 (193d96)

  35. …Normally I hate it when a public official is sued for misconduct because the taxpayers generally get stuck with the tab. But hopefully there is a way to sue her personally and the city of Baltimore because I’m looking at this klown and mayor “space to destroy” whatshername and I figure the citizens of Baltimore deserve whatever they get.

    Steve57 (193d96)


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