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Freddie Gray case: Get ready for six separate trials

Freddie Gray case: Get ready for six separate trials

Court rules each defendant must be tried separately, and Prosecutor Mosby can stay.

Yesterday Judge Barry Williams made several important rulings on the Freddie Gray case, in which six Baltimore police officers have been charged with various felonies in the death of the arrested drug suspect, reports the Baltimore Sun.

Key among these are that each of the officers will receive a separate trial, and that Prosecutor Marilyn Mosby will not be forced to recuse herself from the proceedings.

Left unanswered until a successive hearing next week is whether the trials will be held in Baltimore, where the alleged crimes occurred, or outside the city where defense lawyers argue a less tainted jury pool is available.

These rulings strike me as being consistent with reasonable due process as well as political decision-making.

The six officers charged were each involved in some, but not all, of the activities around Gray’s arrest and later apparent injury while being transported in the police vehicle. This is reflected in the differing charges against each of them. As a result, the evidence relevant and admissible in one officer’s prosecution might well not be either in another officer’s prosecution. Expecting a jury to keep all this straight in a simultaneous trial of six defendants would be unrealistic, to say the least. Indeed, I very much expect the press and the general public will find doing so all but impossible. (I anticipate we’ll be seeing a lot of bad legal analysis as a result.)

To refresh our recollection, here’s a table listing the six defendants, the charges against them, and their defense counsel. This might well prove a handy reference moving forward:

Freddie Gray charges 9-3-15

As far as the political dynamics, perhaps the best thing that could have happened for Mosby would have been for the court to order her to recuse herself. Her management of the case has been stumbling at best, bizarre at worst. Had she been ordered to recuse herself she could have escaped further responsibility and embarrassment.

Instead, Judge Williams has essentially told her “you own this.” Further, the closer we get to trial the less Mosby will be able to hide behind political rhetoric and the more she will be required to put actual evidence of criminal misconduct–evidence capable to exceeding a reasonable doubt of guilt–on the table. And she will have to do so, discretely, for six distinct prosecutions.

Based on past performance I doubt the ability of Mosby herself or her office to pull this off with anything approaching professionalism–but regardless of my expectations, Judge Williams has ensured that we’ll get to see Mosby make the effort.

Having seen nothing like the level of evidence required to prove any of the officers guilty beyond a reasonable doubt, I very much suspect that as in the Zimmerman case the prosecution simply doesn’t have what it needs to even approach the prospects for a guilty verdict (absent, of course, a runaway jury). Soon we will see whether they do or not, and Mosby will still be at the helm of that ship when this is revealed. And that’s how it should be.

Should the curtain be pulled back to reveal that Mosby’s charges against these officers were largely or entirely based on ephemeral dreams of personal grandeur and political advancement, I can’t say that I’ll be surprised in the least.

Speaking of evidence, very little additional evidence was newly revealed to the public at yesterday’s hearing–actually, none, as far as I can tell. What new evidence was presented to the court was apparently kept under seal, and thus away from public scrutiny.

Those of you who have followed our legal analysis in the past here at Legal Insurrection will know that we very much take an evidence-based approach. Speculation and innuendo has (or, at least, should have) little or no role in a criminal prosecution of any type. We certainly very much look forward to having access to the relevant evidence in these now six separate cases.

In terms of the “riotestors,” yesterday’s hearings apparently saw “mostly peaceful” protesting. Of course, none of Judge Williams’ rulings were of a sort that might have been seen as explicitly contrary to Mosby’s prosecution of the officers–as recusing Mosby might well have been, or how a change of venue next week still might be. Certainly, with six separate trials, and the prospects for six successive acquittals, I expect that there will be plenty of grist for the protesting mill, especially of the violent “loot-and-burn” variety. A prudent person will plan to their visits to inner-city Baltimore accordingly.

That’s it for now, more to come as events warrant. Keep your eyes here, of course, for the very best in Freddie Gray coverage.

–-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 blogging, books, live seminars & online training (both accredited for CLE), public speaking engagements, and individualized legal consultation.
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The word was this judge was very good. Given Mosby’s lack of ability, it is almost six one way half a dozen the other letting her stay on. But the critical decision is having or not having the trials in Baltimore.

Does anyone care to opine on whether these trials will be moved from Baltimore. “Activists” are already threatening to take to the streets if the trials are moved.

No matter what happens this will all get retried at the Federal level.

Any bets on some of the charges being dropped? Or more likely at least one or two of the cases being dropped?

    Hard to guess, with the prosecution hiding and obscuring the evidence.

    For example. I’ve yet to hear the prosecution cite what, exactly, Goodson (van driver) was supposed to have done that constitutes second-degree depraved-heart murder. If they have the evidence to support such a charge, I’d expect them to be screaming it from the roof tops. They gain nothing from hiding such evidence–unless, of course, doing so is necessary to conceal the fact that they don’t actually have any evidence.

    Much of the remainder of the charges seem vaguely based on acts of omission rather than commission. The charges against White and Porter, for example, can only be based on a claim that they should have, but failed to, obtain medical care for Gray sooner than they did. Given that nobody really knows at what moment Gray was injured, and thus cannot know at what point he was in immediate need of medical care, nor whether medical care was closer than the destination of Police HQ, I find it difficult to imagine that even these vague charges can be proven beyond a reasonable doubt.

    The whole affair strikes me as a catastrophically laughable bit of political theater by a young and foolish prosecutor who is not nearly–not NEARLY–as smart as she thinks she is.

    But again, absent evidence, that’s all largely speculative.

    Of course, the burden is ultimately on the prosecution to prove their case beyond a reasonable doubt, so sooner or later they have to come up with the evidence necessary to meet that burden or they (and the city of Baltimore, I expect) must suffer the slings and arrows of sequential acquittals.

    –Andrew, @LawSelfDefense

      As far as evidence goes, this has long struck me as “hope one of them flips and blames the others” or even blames one of them as the primary prosecution strategy.

      …Of course, the burden is ultimately on the prosecution to prove their case beyond a reasonable doubt…

      Not quite. If the prosecution can put enough pressure on all six of these officers until one or two of them will testify under oath to things that will keep them out of jail (most likely untrue or several degrees from reality testimony), that can be used to crank up the pressure on the rest until they’re all willing to take a plea agreement. If so, Mosby can still win this.

      Of course that means destroying the lives of six police officers and their families, as well as bankrupting them, but I don’t think she considers that a bad thing.

      Char Char Binks in reply to Andrew Branca. | September 3, 2015 at 12:44 pm

      In order to convict at least one white cop, which is their goal, they’re willing to throw at least one black cop under the van.

        Wow. That was even higher up the “cynical meter” than the way I was thinking, but you may well be right!

          Char Char Binks in reply to Twanger. | September 3, 2015 at 7:02 pm

          Matter of fact, they’re be willing to convict three black cops in the hopes of convicting even one white cop. This case never would have been brought without the video of Freddie being arrested by the “slave patrol”. That some Blacks-turned-blue may have to suffer is just collateral damage.

          Gremlin1974 in reply to Twanger. | September 3, 2015 at 7:20 pm

          @Char Char Binks

          Actually many times blacks on the police force as seen a “traitors” to their friends and families. So getting these 3 black cops convicted wouldn’t bother them one bit.

          I had an eye opening conversation with a friend who is a young black man who grew up in Detroit and I was struck by the difference in attitudes between a man growing up in the inner city someone who grew up in the rural south. He was raised to never trust cops, period, regardless of color. In fact he said that he had a couple of cousins who are basically shunned because they chose to go into law enforcement. It is certainly a huge difference between someone like me who knew all of the cops in my area and could end up going over to one of their houses for dinner on any given night.

          The Friendly Grizzly in reply to Twanger. | September 3, 2015 at 9:09 pm

          This is in fact a reply to Gremlin1974’s remark.

          Growing up in an area where you get to know your cops (the rural south) is massively different from growing up in the big city where the only time you see an officer get out of his car is to hassle you about something. That, or butt in line at the food stand or fast-feeder, giving you a nasty expression that says “what’re YOU looking at?!?”

          I grew up in Los Angeles. Say hi to a cop, you’d get the evil eye. There was billy-club smashing of tail-lights; hassles for driving while young; and nonsense like cops shouting faux-German and making stiff-arm salutes at students when Fairfax High let out in the afternoon. That was in the 1960s when the school was virtually all-Jewish, and many of the kids were those of people who survived German experiments with the new world order.

          As for me: I don’t “hate” cops. I am polite, but keep it brief and no chit-chat. SCOTUS has given them carte blanche to lie, so I trust them about as far as I can throw an automobile.

          As to the topic at hand: Unless the driver of the van “tuned up” Gray by brake-slamming, cornering hard, and weaving, I don’t believe any of these officers are guilty of anything.

          DaveGinOly in reply to Twanger. | September 4, 2015 at 12:03 am

          This is for Grizz:
          Posted elsewhere on the interwebs by “inspectorudy” –
          I personally treat every cop I see like I would a rattle snake with his rattler going. It’s not personal but I walk around both.

          ConradCA in reply to Twanger. | September 4, 2015 at 12:36 pm

          I think the difference between attitudes towards cops is explained by the person and their relatives embrace of criminality. Criminals hate the police. Honest people like and support them. The BLM movement is an organization of criminals and progressive fascists who are pandering to the for their votes.

Andrew, was Judge Williams sitting as the administrative judge for the jurisdiction, or will he preside over each of the individual trials?

Hopefully none of the officers end up with an “OJ” jury and a weak judge like Ito.

    DaveGinOly in reply to snopercod. | September 4, 2015 at 12:00 am

    A judge (like Ito) can’t do anything about a “not guilty” verdict. But to anyone who is worried about the venue (Baltimore) or the prospect of a runaway verdict, that’s what a directed verdict of not guilty is for when the judge thinks the prosecution’s case failed. Would a judge in one of these cases have the guts to void a jury verdict of guilty? Time may tell.

Arthur Aidala and Mark Eiglarsh (her regulars) were discussing this in detail with Megyn last night, though I can’t find a video for it yet.

One of them mentioned the great advantage of knowing what testimony would be after the first trial, for the defense of the others. iirc, they also thought much would be dropped.

Just thinking about this cynically, if they charge them and try them separately it’s then possible to go easy on select officers, and over-punish the rest. After all, that’s really what Mosby and most of Baltimore wants. I’ll leave it as an exercise to the reader to decide which group is which.

When you have split trials with one prosecutor… is she under any obligation to stick to a single narrative of the crime?

That is, can she tell one jury a narrative that makes the defendant in front of them responsible, and the tell another jury a conflicting narrative that would have exonerated the first defendant?

    Ragspierre in reply to clintack. | September 3, 2015 at 2:23 pm

    I can’t think of a bar, but it would be suicidal. A court record is admissible in another trial (I do believe), and an awake defense attorney would have it read to the jury.

      Milhouse in reply to Ragspierre. | September 3, 2015 at 7:43 pm

      Yes, technically it can be done. I vaguely recall a case years ago, I think in Florida, where two defendants were convicted by separate juries on incompatible theories of the crime, and they both appealed. I don’t remember what the outcome of the appeal was.

Andrew, missed seeing your articles lately, hope is it because you have been hella busy, as in making money and spreading the word on legal self defense.

My question would be, say the first couple of cops are acquitted, it would seem to me that an honest and competent prosecutor would re-evaluate continuing with the prosecution of the other 4 or 5. Do you think that the outcome of the first trial will be indicative of the most likely outcome of the others and cause Mosby to back off or do you think she has “dug the hole to deep” and will just have to persist?

    It would be fun to say I did something naughty and got a suspension from Legal Insurrection, but I’m afraid I’m too old to be naughty.

    I’ve just been swamped with work, and there’s been a paucity of real self-defense stories interesting enough to drag me back.

    Of course, the Baltimore fiasco isn’t a self-defense case, either, but it’s such an apparent miscarriage of justice that it offends my due process sensibilities. 🙂

    As to your question, I have no way of predicting what Mosby might do: she’s not a rational person. Normal rules of reason don’t apply to her decision-making.

    –Andrew, @LawSelfDefense

      Gremlin1974 in reply to Andrew Branca. | September 3, 2015 at 7:14 pm

      Glad to know you are doing well.

      I don’t guess we should complain about the lack of self defense cases to discuss, since it may mean that after the last two total disasters folks have calmed down.

IRRC when the coroner’s report said it was a homicide, there were news reports that Mosley had pressured him to say this. If this is true and it comes out at the trials, the prosecution case would be seriously weakened.

    Gremlin1974 in reply to blacksburger. | September 3, 2015 at 6:59 pm

    There have been some rumors of that happening, but I don’t remember ever seeing any hard evidence.

      DaveGinOly in reply to Gremlin1974. | September 4, 2015 at 12:09 am

      Put the coroner on the stand and ask him point-blank, “Were you pressured by the prosecutor, or by anyone in her office, to label this death a homicide?” It’s an opportunity to come clean, if it’s true. And, if true, why would the coroner take a potential fall (perjury) for Mosby?

JackRussellTerrierist | September 3, 2015 at 6:30 pm

I still don’t see the strategic benefit to the defense in separating the trials. I don’t think Mosby will give up even if she loses the first one. I see this as her now having six bites at the apple instead of one.

Andrew, please tell me what I’m not seeing in the defense’s decisions to seek separate trials.

    Char Char Binks in reply to JackRussellTerrierist. | September 3, 2015 at 6:49 pm

    First, let me apologize for not being Andrew. If the pros. got the groupings they wanted, they could have insinuated guilt by association, maybe, to a compliant jury. And they could have gotten a “better” outcome, racially, with their “gerrymandered” groupings, so to speak. I know “gerrymandered” isn’t quite the correct word, but I really don’t see any logic in their proposed groupings, except that they wanted to insure the “right” outcomes, so I believe it was political manipulation, in a sense. And they will look awfully silly the longer they go with no convictions, which may make it tougher on the first few to be tried.

      Gremlin1974 in reply to Char Char Binks. | September 3, 2015 at 7:09 pm

      I don’t know where the request to separate the trials cam from, but it will also have the effect of dragging this issue out so the people that benefit from it can get some more mileage out of it.

6 trials, six riots , six chances for Nick Mosby to do speeches. Word is he is running for mayor, She can’t pass up that opportunity .
If there are six trials she will probably go with the the one she thinks she’s got the best shot at winning and have to play all her cards . This will help the others to know what strategy is coming. If she loses ,it could all fall like dominoes. I can’t imagine she would go with her weakest first. I do wonder about the other officer that was involved , but not charged , what does he have to offer .

Was there a motion to dismiss the charges denied today?

The reason I ask is because my local paper framed it as “a Judge refused to drop the charges against 6 officer for the death of Freddie Gray”

If there wasn’t a motion to dismiss I want to raise crap with the pitiful excuse of a liberal rag we have here and demand a correction.

Andrew writes: “Had she been ordered to recuse herself she could have escaped further responsibility and embarrassment.
Instead, Judge Williams has essentially told her ‘you own this.’”

Ain’t that the truth. I’m betting she doesn’t have much of a career, political or legal, once this fiasco has reached its logical and forgone conclusion.

I must disagree with those who say separate trials is a blow to Mosby. It would be if her goal were convictions, but I don’t see how she can imagine they’re possible, and therefore how that can be her goal. I have long thought that her goal was to get acquittals with the aim of getting black voters to the polls in November 2016. But I wasn’t sure how she was going to drag it out that far. If the acquittals come in the winter, which is not rioting weather, the whole thing may be forgotten by summer, and certainly by next November. Splitting the trials may let her drag it out far enough for her purposes.

    Char Char Binks in reply to Milhouse. | September 3, 2015 at 9:35 pm

    She’ll get whatever she can out of this. If she wins even one conviction, she’ll be the victorious champion. If she loses completely, she’ll be valiant in defeat, and still the champion of the poor, oppressed black folks of Baltimore, so oppressed that they only have a majority on the police force and the city council, a black city council president, a black sheriff, a black mayor, and a black prosecutor on their case avenging the death of the best and brightest youth they had to offer, Freddie Gray. There will be no forgetting any of this during this decade.

Andrew, could you get this fragment fixed? Thanks

“We certainly very much look forward to having access to the relevant evidence in these now six separate cases, and”

If there is no change in venue then the best the defense can hope for is a hung jury. Any panel of city residents will be under tremendous pressure to convict regardless of the evidence. Reference was made to the OJ trial. IIRC in that case jurors were not going to convict “the juice” because of fear of reprisals. The reverse dynamic applies here. This is, after all, a show trial to placate the mob.

It’s also possible that there could be a mis-trial for any number of reasons: e.g. juror failing to disclose previous criminal activity, or juror reporting to judge that he is being pressured by friends or neighbors to vote guilty.

If there is a change in venue it would have to be to either Eastern Shore or Western Maryland in order to get away from mob influence on possible jurors.

DA Mosby Will win every trial. Unlike the gooseegg Anne Colt Leitess laid.

    Ragspierre in reply to m1. | September 4, 2015 at 12:24 pm

    You mean the OTHER Deemocrat DA?

    You’re just a racist.

      The other DEMOCRATIC DA you and the other WVI practitioners and hypocrites at LI never had a issue with. Mosby Will win every trial. Coming soon my follow up on the aftermath of the Detective Joseph Walker acquittal of the dirtbag racist criminal he rightfully toetagged

        Ragspierre in reply to m1. | September 4, 2015 at 2:15 pm

        I don’t remember her making herself a racial pandering POS. as has the incompetent Mrs. Mosby.

        Which is the sole reason you are giving Mosby a tongue bath here. You are both racists and both idiots.

        Gremlin1974 in reply to m1. | September 4, 2015 at 10:35 pm

        Hey, your Mom just yelled down the stairs for you to put the clothes in the dryer, and quit forgetting the damn dryer sheets.

    ConradCA in reply to m1. | September 4, 2015 at 12:43 pm

    M1 can you explain how she is going to win these cases? The knife was illegal according to Baltimore city law so the arrest was legal. The autopsy showed that Gray chose to stand up in a moving vehicle and his injury occurred when he fell. These facts prove that the officers didn’t murder Gray. Is it that the facts don’t matter?

      Gremlin1974 in reply to ConradCA. | September 4, 2015 at 10:37 pm

      Reality, logic, and reason have little interest for M1. He is a simple little troll that we pretty much keep around as our “token meta-human”, we find him mildly entertaining. As far as his predictions for outcomes so far he is 100%…wrong. So just bet on the opposite of what he says and you are pretty safe.

Isn’t it going to be almost impossible to convict these officers because of the autopsy report which showed that it was Gray’s decision to stand up in a moving vehicle that caused his death.

Getting back to the question of why the coroner called it homicide. I simply don’t see the evidence for this. He reported that Gray’s head hit a projection inside the van and this caused the fatal injury. I don’t know of any evidence on how he came to hit the projection. There were no police officers in his part of the van at the time.

    Gremlin1974 in reply to blacksburger. | September 4, 2015 at 10:42 pm

    The same day the ME reports came out and Mrs. Mosby “heard the cries for ‘No Justice, No Peace'” there was a rumor swirling around that the ME had found Mr. Grays death to be accidental. However, the ME was then called into a meeting with certain people and decided to change his report to “homicide”. Now this is nothing but rumor and speculation but it is certainly easy for me to believe.

    What this “prosecution” strikes me as so far is the old analogy of throwing feces against a wall and hope something sticks. If they get even on conviction on even the most minor charge they will proclaim it to the high heavens as if they won the whole kit and kaboodle.

Did I hear that they awarded the family $6 million?????? What the heck? No trial?

    Twanger in reply to heyjoojoo. | September 9, 2015 at 10:52 am

    I guess the city lawyers are running scared … betting that convictions would jack up the price-tag if they waited until after the trial.

    Of course, the flip side is that there are no convictions and the award money would be far less, or zero.

    Do you think city lawyers made a mistake, or is this a telegraph of how the trial will go?