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Freddie Gray Case: Prosecutors Withhold Evidence as Discovery Looms

Freddie Gray Case: Prosecutors Withhold Evidence as Discovery Looms

90% polled do not believe prosecutors have evidence for most serious charges

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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“Granted, it is possible that some discovery is still being gathered.”

Which, rationally and in most jurisdictions, you are allowed to “supplement” as it becomes available.

IF the other side has requested it, YOU can’t use it UNLESS you’ve supplemented your responses.

That “fishing expedition” objection in the face of the defense request for training materials (and other stuff) was PRICELESS…!!!

NOTHING could be more germane in a case where the PA has to PROVE “knowingly”.

Plus…AMATEURSVILLE…!!! You just told your opposing counsel where the chink in your armor exists. You either make a sound objection or you suck your teeth and understand your case weaknesses and live with them.


Anticipating the aftermath as SJWs’ heads explode due to Mosby’s failed crusade.

    Voyager in reply to Rab. | June 13, 2015 at 10:13 pm

    Honestly, I’ve come to the conclusion that convictions are not the main goal here. Rather, it is to stoke the fires of racial hatred to rally their troops to their cause.

    If they didn’t have a race war to fight, what would be their justification for power?

      Milhouse in reply to Voyager. | June 14, 2015 at 1:39 pm

      Convictions are not a goal at all. Mosby knows very well that she can’t get any convictions. Her purpose is to produce acquittals, which will stoke the rage. But ideally she’d like those acquittals to come next summer, so she’ll try to drag things out as long as she can.

    Estragon in reply to Rab. | June 14, 2015 at 12:27 am

    She should have quit while she was ahead and stepped aside for a special prosecutor from the state. Then she could blame them for the failure to convict. But she doesn’t appear all that bright when you don’t add the extra points to her score.

Students, this is a prime example of how to NOT prosecute a case. Pay attention and bring popcorn.

I am awaiting Mosby’s indictment for agravated dereliction of duty.

Is this what Mosby meant by “justice by any means necessary”?

Meanwhile in Texas, the state bar has disbarred a former D A that sent an innocent man to death row for 18 years.

    Stan25 in reply to Stan25. | June 13, 2015 at 2:04 pm

    When I first saw the headline, I thought that Ronnie Earl, D A of Travis County had been the one that it happened to. No such luck.

    Richard Aubrey in reply to Stan25. | June 13, 2015 at 5:11 pm

    WRT the Sebasta case in TX. His penalty would be the equivalent of Bernie Madoff retiring with all the money but losing his securities license.

    ScottTheEngineer in reply to Stan25. | June 15, 2015 at 12:57 pm
    I read the article and they failed to mention exactly what evidence was withheld. Why would they omit that? Seems important no?
    “Graves’ lead counsel, Calvin Garvie, was asked under oath during an ‘Evidentiary Hearing’ before a Federal Magistrate in 2004 if Mr. Sebesta had told him about Carter’s statement saying that he had committed the murders all by himself. Garvie responded by saying that he didn’t “recall” if he had been told.”

Subotai Bahadur | June 13, 2015 at 2:24 pm

There is an assumption here that may well not be warranted. Granting that the prosecution is making a football-bat appear perfectly functional; people are acting as if it wants convictions. If the cops, justly or manifestly unjustly, are convicted then the opportunities for race baiting and agitation are less. If they get off on any of the charges, even with absolute legitimacy, then the riots begin again in Baltimore and spread nationwide. Which politically serves certain agendas.

We are long past the point where we can assume any minimum level of good faith efforts by our government, regardless of party.

    platypus in reply to Subotai Bahadur. | June 13, 2015 at 7:23 pm

    I truly hope you are wrong. If you’re right, it takes cynicism and shamelessness to a whole ‘nother universe.

    JackRussellTerrierist in reply to Subotai Bahadur. | June 13, 2015 at 8:07 pm

    Well, Sab, we have the drooling class, the schooling class, and the ruling class.

    The drooling class are the plantation rathole ghetto dwellers and those living slightly above their ranks with no aspiration except a 60″ flat screen TV. They have nothing to give except their voting power. They cannot exist without the other two classes. The schooling class, still largest in number, although only slightly, are those who learn, work, and want and rely on truths. They have much to give, such as wealth, industry, work ethic, and a belief and value system which includes service to their fellow man and neighbors and the free markets of ideas and commerce. They can subsist without the drooling class or the ruling class and in fact thrive without the burdens those classes bring. The ruling class are those who have to maintain or are aspiring to great power and wealth, so they can only take. They cannot subsist without the other two classes either, and must use the voting power of the drooling class to take from and control the schooling class to gain the wealth and power they seek.

    The Mosbys are aspirants to the ruling class, where they hope to join the rich and powerful, such as the white trash Clintons and the black trash Obamas.

    So these six officers from the schooling class are paying the freight for the Mosbys movin’ on up to the east side, thanks to the symbiosis between the droolers and the rulers.

    Twanger in reply to Subotai Bahadur. | June 15, 2015 at 3:17 pm

    Subotai – very insightful.

    It’s all about getting the votes. There is nothing else.
    Every press release, every platform, every word of every speech, and every action is about getting votes.

    Democrats have discovered how to actually use Republican’s money to buy votes from JRT’s “drooling class.”

Does her behavior make sense if her primary objective is a coverup of the use of her office to help her husband’s political career by “ordering” increased policing in the Freddie neighborhood? That is a police issue and the PA should only be providing legal advice not operational direction. The PA must be able to objectively judge the case as best he/she can and not be part of it (as has been pointed out earlier here at LI).

She knows she has nothing legally but she must buy time for the coverup (I guess). She has silenced her conscience long ago…if she ever had one. She is delaying her own sentencing by dragging this out. Think junior high school behavior (delay & deny). Perhaps she is also fashion shopping for the right rain suit for when the fan gets rolled out.

Sorry, but I find it hard to believe that anybody is as stupid as she appears to be. But, she was voted in.

    Ragspierre in reply to TX-rifraph. | June 13, 2015 at 2:42 pm

    But Occam is whispering that we can’t overlook a few other possibilities.

    The MOST obvious is that she’s a not-very-bright student of common prosecutorial practice, and she just VERY in-artfully over-charged the hell out of this mess in hopes of rattling a plea out of some of the LEOs.

    It often works, after all. And the costs for doing it are really pretty negligible.

      Char Char Binks in reply to Ragspierre. | June 13, 2015 at 3:55 pm

      The mayor also suspended the defendants without pay, so they’ve already achieved part of their goal of punishing them. Just as when many SJW’s enjoyed and celebrated the hell they put Zimmerman through, and continue to, the prosecution is the punishment. And if they lose the case, they’ll get to complain even more, and more strongly, about how a black man can’t get justice.

    Anchovy in reply to TX-rifraph. | June 13, 2015 at 3:32 pm

    One does not have to be overly smart to be elected as a Prosecutor. One need only get more votes or have an in with whoever counts the votes.

MouseTheLuckyDog | June 13, 2015 at 2:53 pm×375.jpg

One pretends to be black, one pretends to be a lawyer. Which is which.

RE SEAT BELT Per the most eminent Yogi Berra In theory there is no difference between theory and practice.In practice there is.Is Yogi still alive maybe he should try the case.If I was a lawyer I’d try that one in court just to show how ridiculous it is

Mosby abridged urban dictionary Probable Cause. THEY probably did it ,Cause I said so. E GAD My mother could have been Baltimore’s States ATTORNEY

Would overcharging police officers to elicit plea likely to work. They really know how it works.And there is the blue line .My guess is she is hoping judge maybe throws a hint her way to recuse and someone else gets this loser

    Estragon in reply to dmi60ex. | June 14, 2015 at 12:32 am

    The tendency of juries who perceive defendants have been over-charged unreasonably is to acquit on all charges even with lesser included counts. So over-charging runs a big risk.

    And these cases appear so weak, no sane defendant is going to cop to a plea at all.

Or maybe the lawyers are working off her arrogance And hoping she just rages to get into court RE Jack Crabbe movie quote (And that’s when I knowed I had him)

It’s looking more and more like Mosby is in over her head.

    Stan25 in reply to Cassie. | June 13, 2015 at 4:14 pm

    She has been in over her head. the day she started running for the office. It was her husband’s political influence that got her elected.

Since she has linked all to the van , how does that work with the exclusion of motor vehicles for reckless endangerment in Maryland. Can someone define instrumentality and how does it apply to this charge

    JackRussellTerrierist in reply to dmi60ex. | June 13, 2015 at 7:29 pm

    Heh. The van was the instrumentality? Okay. How? Swerving? With Freddie not belted, there would still have to have been something related to the driving to cause the claimed injuries otherwise the seatbelt policy would have always been in place there and elsewhere. So, there’s still no claim about what was specifically done to cause Freddie’s injuries as she charges. The fact that they filed this and still have nothing is just like showing the same movie twice and claiming the second showing is proof of the first showing. It also reminds of the old CC Revival rendition of Midnight Special, “Ain’t no food up on the table, ain’t no pork up in the pan, but you better not complain, boy, you’ll get in trouble with the man.” Marilyn, bring on the chow.

    If those officers had really done something deliberate to Freddie, she’d be shouting it from the rooftops. The racebaiters wouldn’t allow her to maintain this position.

It’s all about rousing the rabble. Mosby’s strategy was developed in consultation with the White House, which recently announced Obama would focus on out-of-control policing for the rest of his term. The rabble roused by Obama’s and Holder’s racemongering will be, by design and desire, Obama’s legacy. The agitated racists and progressives will make it easier to further the fundamental transformation.

Loved the Midnight Special reference May I. If you go to Mckinney,oh you better do right,You better say nothing if you’re in a pool fight,Or the mob Will grab,Of that we are sotired,The next thing you know girl,you’re behind is fired