The defense rested yesterday in the current “Freddie Gray trial” of Baltimore Police Department Lieutenant Brian Rice, and closing arguments are scheduled for Thursday.  Given the past practice of trial judge Barry Williams a verdict in this bench trial is likely to be delivered by him no sooner than early next week (to wit, after the weekend).

The regular reader of Legal Insurrection (and you’d be a fool not to be) will have noted that we haven’t done as many posts on this latest “Freddie Gray trial” of Lieutenant Rice as we have of the previous failed prosecutions of Officer William Porter, Officer Edward Nero, and Officer Caesar Goodson.  The explanation for that apparent lapse is straightforward–there’s little new to post about.

The ongoing legal battle between the police officers’ defense counsel and the State’s Attorney prosecutors is reminiscent in a pathetically bizarre “Groundhog Day” fashion of the battle of Waterloo, after which the defending Duke of Wellington dismissively noted of Napoleon’s attacking army, “They came on in the same old way, and we saw them off in the same old way.”

This sentiment is captured nicely in the trial of Lt. Brian Rice by University of Baltimore law professor David Jaros, who is quoted by the Baltimore Sun as stating:

We are left in position that feels very familiar. There does not seem to be a great deal to differentiate [the trial of Lt. Rice] from the [failed “Freddie Gray” prosecutions] that came before.

Before the trial of Lt. Rice had even begun trial judge Brian Williams dismissed one of the misconduct in office charges against him, in particular the misconduct charge premised on assault.  By the time the State had rested Judge Williams was also obliged to dismiss the assault charge itself, on the grounds that prosecutors had failed to provide any evidence that Rice had committed or conspired to commit an assault upon Gray.

Still remaining are charges of involuntary manslaughter, reckless endangerment, and a still remaining misconduct in office charge.  Given that this is a bench trial without a jury, a conviction on any of these remaining charges would require that Judge Williams be convinced of Rice’s guilt beyond a reasonable doubt.  This seems unlikely in the extreme if the judgment is made on the relevant law applied to the evidence in the case, a process that Judge Williams has followed faithfully in the bench trials of Nero and Goodson, both of whom he acquitted of all charges.

As State prosecutors have long threatened to do, they compelled the testimony of Officers Porter and Nero, the former on the basis of limited immunity and the latter on the basis of his earlier acquittal.  In the case of each witness, however, their testimony not only did not strengthen the State’s case it actually helped the defense.

For example, the officers spoke of the growing and excited crowd gathering around the scene of Gray’s arrest, which contributes to the reasonableness of their decision to be hasty in moving Gray from the scene and not taking the time to seat belt him into the police van.  This testimony was buttressed when the defense called a third officer, Zachary Novak, not charged in Gray’ death, whose testimony was reported by the Baltimore Sun as follows:

The defense, using the testimony of Nero and another officer, Zachary Novak, described a growing crowd of people “emptying out” of the Gilmor Homes public housing, surrounding and outnumbering the officers.

“There wasn’t enough of us,” Nero said.

Also among the defense’s mere four witnesses they also called two medical experts who both disputed the claims of the State’s medical examiner Carol Allen that Gray’s death was a homicide, arguing in expert testimony that in fact Gray’s death was an accident.  It is notable in this context that surprise testimony in the previous trial of van driver Caesar Goodson had revealed that Dr. Allen herself had initially believed Gray’s death to have been an accident, and that she only changed her finding to homicide after a private meeting with prosecutors.  Evidence of Dr. Allen’s early belief and the circumstances of her changed opinion had been hidden from the legal defense by prosecutors.

The defense medical experts also argued that Gray’s injuries would have been acute in nature, and thus could only have occurred very late in his transport (well after Rice’s involvement in Gray’s arrest had ended), and not progressive as claimed by Dr. Allen (which would have allowed for Gray’s injury to have occurred while Rice was still involved).  The defense’s medical experts, in contrast, said the results of Gray’s injuries would have been acute, suggesting that he could have suffered them only during the last leg of the van’s trip, long after Rice interacted with Gray. Arden, a former medical examiner, said Gray’s death should have been ruled an accident, not a homicide.

Ironically, perhaps the best thing to have occurred in recent days for State’s Attorney Marilyn Mosby, the “master-mind” behind these groundless and quixotic prosecutions, in terms of diverting press coverage has been the execution in Dallas of five white police officers by a violent black radical racist, followed by President Obama’s crass speech at the officers’ memorial in which he argued at length that the police themselves held substantial institutional guilt for the assassinations of their colleagues.

Sometimes, I suppose, when you’re a Marilyn Mosby it’s better to be lucky than bad.

Ok, folks, that’s it for now.  More after the closing arguments on Thursday, I suppose.

–-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]