Prosecutors in the case of six Baltimore police officers charged in the death of Freddie Gray continue their farcical efforts to deny evidence to the officers’ defense counsel, according to a report yesterday in the Baltimore Sun.

The deadline for Prosecutor Marilyn Mosby’s office to meet its discovery obligations to the defense is Friday, June 26, now less than two weeks away.

Granted, it is possible that some discovery is still being gathered.  Other evidence, however, is explicitly available right now, such as Gray’s knife, his autopsy results, and surveillance video of the scene. There seems no rational basis for delaying the sharing of such evidence with the defense for another two weeks, except that the sharing will expose that the prosecution utterly lacks the evidence needed to support the charges it has brought against the officers.

Indeed, the notion that the State simply lacks the evidence to support its charges is not an unusual one.  The Baltimore Sun just ran a poll asking people that exact question:

Do you believe the Baltimore prosecutors have the evidence to support the harshest charges against the officers who interacted with Freddie Gray?

The results as of the writing of this post? Over 88% responded “No,” as shown in the featured image, above.

Inspires confidence, no?  No.

The fact that the prosecutors have made so little effort to explain precisely what it is each officer actually did that constitutes criminal misconduct is also disturbing, especially given the severity of the charges brought against them, as reported in the Baltimore Sun two days ago.

Kurt Nachtman, a defense attorney and former prosecutor in the Baltimore State’s Attorney’s office, said he found it surprising the state didn’t lay out more clearly what it believes each officer did.

“I don’t think for a case as serious as this that you should bring actual allegations that are so tenuous,” he said. “That’s a huge stretch of the law.”

Prosecutors did tenuously claim that the second-assault, reckless endangerment, and misconduct charges against Goodson, White, Rice and Porter, as well as the misconduct and reckless endangerment charges against Nero and Miller, all hinged on the purported failure of the officers to fasten Gray into the van with a seatbelt. Reports the same June 11 Baltimore Sun article:

[Prosecutors] said each officer “caused physical harm” to Gray by failing to secure him in the back of the van, and that the van then acted as an “instrumentality” of each of them and “made harmful contact” with Gray.

Thus fully 12 of the 28 charges brought against the officers hang from that single purported failure to use a seatbelt when placing Gray in the van.

For half of the officers (Rice, White, and Porter), the seatbelt accounts for all of the charges against them, except for their manslaughter charges.  Prosecutors have still not enunciated a rational evidentiary basis to support either these manslaughter charges or the second-degree depraved-heart murder charge brought against Officer Goodson, the driver of the van.

In the case of Goodson, these “seatbelt” charges effectively account for half the charges brought against him.

This strikes me as a laughable number of charges against an astonishing number of officers to hang from a single seatbelt, and more so given that the alleged “act” of harm was in fact a “non-act.” This is especially so given that the policy alleged to have been violated had been in effect only 9 days at the time Gray was arrested, according to reporting by Baltimore CBS.

Further, all policies of any sort always have as an implicit caveat that the policy is to be followed unless there is a good reason not to do so.  As noted in the Baltimore CBS piece:

[Police expert] Robert Stewart, a former police chief who consults with departments and the Department of Justice on procedures the use of force[,] said strapping [suspects] in with seatbelts is “not the Torah,” but should be adhered to whenever feasible.

Given that the arresting officers had already thought it necessary not just to handcuff Gray but also to place him in leg restraints suggests that Gray was being non-compliant with arrest.  This non-compliance would be consistent with his initial flight from the arresting officers.

Attorney Michael Davey, one of the defense lawyers in this case, is quoted in the same article as saying that although department policy requires seatbelts:

[P]olicy is policy, practice is something else. It is not always possible or safe for officers to enter the rear of those transport vans that are very small, and this one was very small.

It would seem that a disinclination to place oneself in a small space with a combative and non-compliant suspect for the purpose of belting him into a seat, especially when he had already been placed on the floor of the vehicle, is certainly rational, and at the very least not a type of gross negligence sufficient to support criminal charges.

Interestingly, state prosecutors are also refusing to turn over to the defense documents pertaining to the training of Baltimore Police Officers, according to Friday’s Baltimore Sun report, calling the defenses’ request for these documents a “fishing expedition.”One can’t help but wonder if prosecutors are withholding the training documents because these training documents themselves had not yet, at the time of Gray’s arrest, been updated with the just-changed seatbelt policy?

Is there any evidence that any of the officers had actually been substantively informed of the new policy?  Certainly it has been my experience that such policy changes take some time to percolate through a large organization.

While officers might possibly be held responsible on a strict liability basis for all policies, promulgated or not, for purposes of internal police discipline, such would not apply to the criminal charges brought against them.

There’s more to come, folks, count on it.

–-Andrew, @LawSelfDefense

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Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog (autographed copies available) and (paperback and Kindle). He also holds Law of Self Defense Seminars around the country, and provides free online self-defense law video lectures at the Law of Self Defense Institute and podcasts through iTunes, Stitcher, and elsewhere.


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