The “Freddie Gray trial” of Lieutenant Brian Rice began today with opening statements and the state’s first two witnesses, reports the Baltimore Sun (the tweets embedded below are also provided by Baltimore Sun reporters).  Rice has chosen a bench trial before trial Judge Barry Williams.  The last two “Freddie Gray” defendants, who also chose bench trials, were both acquitted of all charges.

Although the state dropped one of the minor charges against Rice–the misconduct charge associated with the arrest in which he was not involved–they continue to pursue charges of involuntary manslaughter, second-degree assault, reckless endangerment and a second misconduct in office charge.

The Baltimore Sun reports:

During his opening statement, Chief Deputy State’s Attorney Michael Schatzow presented no new factual allegations since the previous trials, and did not cite Rice’s statement to police investigators. He stressed Rice’s position as the highest-ranking officer on duty in the Western District on the day of Gray’s arrest, with authority over the other officers there.

“He was in charge,” Schatzow said.

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So it seems the state has spun the “Theories of the Case” wheel and it stopped with the pointer positioned at “Manslaughter by Failure to Seatbelt,” with a side-order of “because Lieutenant.”

Lt. Rice had been assigned to a team of officers sent to crack down on drug dealing around the Gilmore Homes at the request of City Councilman Nick Mosby, husband to State’s Attorney Marilyn Mosby, who ordered the prosecution of these “Freddie Gray” cases.  When he observed Gray flee at the sight of police, he called for other officers to stop Gray.  Officer Garrett Miller, also scheduled to be tried, made the stop, found an illegal knife on Gray’s person, and arrested Gray on that charge.

Rice’s only active involvement in Gray’s arrest and transport, claims the defense, is a nine-second window of time during which he became convinced that attempting to seatbelt Gray was ill advised and dangerous under the circumstances. In support of this judgment the defense notes the growing and angry crowds on scene, Gray’s combativeness, and the van’s very confined interior.

Rice’s defense also noted that Gray never exhibited external signs of injury at any of the stops where Rice was present, facts that would be relevant if the State decided to change their theory of the case mid-trial (as they did with the prior trial of Caesar Goodson) and begin to argue “Manslaughter by failure to provide medical care.”

The Baltimore Sun also reports on the opening statement of Chief Deputy State’s Attorney Michael Schatzow:

Based on Schatzow’s opening remarks, the prosecution will focus on Rice’s rank to establish that he knew the guidelines and the risks associated with breaking them. Schatzow noted that acquiring the ranks of both sergeant and lieutenant require “studying for” and passing exams on general orders, and said Rice is “not an inexperienced officer.”

It is notable that at the immediately preceding trial of van driver Caesar Goodson, Schatzow’s opening statement focused almost exclusively on the theory that Goodson had murdered Gray by way of a “rough ride” in the police van.  By the end of that trial the following week, Schatzow had essentially abandoned that theory, and instead argued that Goodson had murdered Gray by way of failure to provide medical care.  Regardless, Goodson was acquitted of all charges by trial Judge Barry Williams.

Given that history, one looks to Schatzow’s opening statement as an indicator of the state’s likely arguments to come at one’s own jeopardy.

Following opening statements the state called its first witness, Medical Examiner Dr. Carol Allan.  Dr. Allan has previously testified in earlier trials that she always believed Gray’s death to have been a homicide, not an accident.  This claim was seriously impeached by testimony by the lead investigator on the case who noted that Allan had originally believed Gray’s death was the result of an accident.

Today Allan testified that Gray would not have suffered his ultimately fatal neck injuries had he been seat belted in, but also that the failure to seat belt alone did not constitute homicide in her opinion.

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Rather, a finding of homicide also required the failure to provide prompt medical care.

Given this testimony by the state’s own medical examiner it is difficult to understand how the state believes it can convict on manslaughter beyond a reasonable doubt given that there’s little evidence that Rice was aware of a substantive need to provide Gray with immediate medical care.

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Interestingly, the Baltimore Sun reports that:

[Allan] said she believed Gray got out of the prone position on the floor where he was left by Rice and other officers before he was injured.

If so, this is entirely consistent with a theory of the case in which the manacled Gray was solely responsible for his injuries, in that he left the position of safety in which the police placed him, and thus was positioned to fall forward on his head in a “shallow dive” type of accident when the van made a routine change in speed or direction.

Next up as state’s witness was Captain Martin Bartness, the author of the Baltimore Police Departments new “mandatory” seat belt policy implemented on April 9, 2015, just three days before Gray’s arrest on April 12, 2015.  In contrast, the prior “optional” seat belt policy had been in effect for 18 years.

A key argument of the defense has been the lack of evidence that any of the involved officers were actually informed of the new mandatory seatbelt rule, and also that even if so informed that there was an expectation that there was practical flexibility based on the circumstances in the application of the new rule.

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On the issue of “practical flexibility” in application of the “mandatory” rule, the defense found an interesting angle of attack:

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The defendant Brian Rice, however, is a mere Lieutenant, not a Captain or a Major.

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On the issue of whether Rice was substantively informed of the new regulation, the defense also found an interesting avenue of attack:

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OK, folks, that’s all I have for now. More “Freddie Gray trial” shenanigans to follow tomorrow, I expect.

–-Andrew, @LawSelfDefense


Attorney Andrew Branca and his firm Law of Self Defense have been providing internationally-recognized expertise in American self-defense law for almost 20 years in the form of books, live seminars & online training (both accredited for CLE), public speaking engagements, and individualized legal consultation.
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[Featured image: Baltimore Sun]