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Freddie Gray Trial: The Schadenfreude Edition

Freddie Gray Trial: The Schadenfreude Edition

Why Porter’s mistrial outcome is an unmitigated disaster for Marilyn Mosby

I have been rather amused the last 48 hours or so watching the Progressive news media (but I repeat myself) in the aftermath of the hung jury in the “Freddie Gray” trial of Baltimore Police Officer William Porter.

The media’s efforts to avoid acknowledging what an unmitigated disaster this outcome was for much-heralded State’s Attorney Marilyn Mosby brings to mind the combat scene between King Arthur and the Black Knight in “Monty Python and the Holy Grail.” Even as King Arthur cleaves off the Black Knight’s limbs in succession, the Black Knight adamantly insists “its only a flesh wound!”

Before we get to why this was such a disaster for Mosby, however, it is worth a moment to bask in the schadenfreude of those seeking to defend Ms. Mosby in the aftermath of this Hindenberg-like conflagration.

Don’t Panic! “Marilyn Mosby’s Still Got This”

One of the more amusing of these efforts is a piece posted on NewsOne.com, which bills itself as “your destination for news and information for and about Blacks in America.” The post is authored by Lynette Holloway, and is structured as a Q-and-A with legal analyst Damario Solomon-Simmons. The posts tone of desperation begins with the headline: “Marilyn Mosby’s Still Got This: A Legal Analyst Defends The Baltimore Prosecutor After Mistrial.”

In fairness, the post’s author does not shy away from the truth, opening her piece with the sentence: “A judge’s declaration of a mistrial for officer William Porter on Wednesday in the death of Freddie Gray dealt a devastating blow to Baltimore prosecutor Marilyn Mosby’s case.”

(emphasis added, just because)

Rather, it is the subject of her Q-and-A that brings the chuckles to this post.

The first brow-raiser was, I’m sure, an unintentional one. In noting that Porter, like all criminal defendants, cannot be subject to self-incrimination, legal analyst Solomon-Simmons apparently feels it necessary to explain in elementary school language what this means:

“But because of the 5th Amendment, Porter cannot be forced to incriminate (tell on) himself.”

(emphasis added)

Apparently Solomon-Simmons doesn’t think much the intelligence of his anticipated audience.

More substantively, asked if perhaps “Marilyn Mosby made a rookie mistake of overcharging the officers and pushing the case too soon,” Solomon-Simmons provides a laugh-out-loud worthy response.

He starts:

“It is impossible to know if Mosby moved too fast in bringing this case.”

OK, fair enough, I suppose reasonable people can disagree on that point (I know, just play along). And at least Solomon-Simmons is acknowledging that it’s a reasonable possibility that “Mosby made a rookie mistake of overcharging the officers and pushing the case too soon.” Maybe, maybe not, it’s just impossible to know.

It’s what Solomon-Simmons says in the next sentence that’s the howler:

“However, it is obvious that Mosby is an extremely bold, intelligent, and savvy legal professional focused on doing what she believes is best for her constituents.”

Wait, what? Solomon-Simmons acknowledges that Mosby may have overcharged the officers and pushed the case too soon, yet at the same time believes her to be “an extremely bold, intelligent, and savvy legal professional.” How’s that work, exactly?

Solomon-Simmons goes on to say:

“So, I’m positive that [Mosby] would not have moved forward with trial if she didn’t think she had everything she needed to secure a conviction.”

Oofah. Now that we’ve all had an opportunity to see the State’s case in an actual trial, no reasonable person could believe that a professional prosecutor would have believed they “had everything needed to secure a conviction.” They arguably didn’t have everything they needed to bring criminal charges in the first place, much less unanimously convince 12 jurors of guilt beyond a reasonable doubt.

Either Solomon-Simmons is a “legal analyst” incapable of recognizing this paucity of evidence, or he’s acknowledging that Mosby herself is incapable of recognizing this paucity of evidence.  Talk about damning with faint praise.

Prosecutor Mosby’s Very Bad, Terrible, No Good Trial Outcome

Bottom line, however, even Solomon-Simmons has to acknowledge the catastrophe that this trial outcome is for Mosby. With three possible outcomes, Mosby managed to achieve the one that was by far the worst for her aspirations.

Best for her, of course, would have been a guilty verdict. In that event she would have claimed a clear win for “justice.”  As important for her next trials, she could have compelled Porter to testify in the trials of the other five officers, as he would no longer be under legal jeopardy and thus no longer could avail himself of his 5th Amendment right to not incriminate himself.

Even better with a guilty verdict, because Mosby would have influence over Porter’s prison sentence she would have an enormous stick with which to guide his testimony. Porter would understand implicitly that testimony facilitating Mosby’s later prosecutions would tend towards a lighter sentence and testimony frustrating those efforts would tend towards a heavier sentence.

Alas, a guilty verdict was not to be.

Almost as good, however, would have been a verdict of not guilty. True, it would look like she’d “lost” the case, as indeed she would have. Nevertheless, she could at least say she’d tried.

More to the point, even a verdict of not guilty would have enabled Mosby to compel Porter to testify against the other five officers, for the same reason that he would no longer himself be under legal jeopardy. True, she wouldn’t have the big stick of influence over his prison sentence to “guide” his testimony, but he’d nevertheless be testifying under oath and subject to prosecution for perjury if he should provably dissemble.

But Mosby was unable to achieve even that much less favorable outcome. She did worse. Much worse. She ended up with a mistrial.

Because of this mistrial, Porter is subject to being retried, and all indications to date are that the State fully intends to try him again.

As a result, Porter remains under legal jeopardy, and therefore remains entitled to the protections offered by the 5th Amendment against self-incrimination. He thus can not be compelled to testify against the other officers in their own trials—at least, not until his own case is fully adjudicated.

The very reason that Mosby chose Porter to stand trial first is because she considered his testimony to be essential to her prospects of getting a conviction of the van driver, Officer Caesar Goodson, who among the six charged officers is the only one to have actually been charged with murder. Indeed, it is Goodson who is scheduled to be tried next, and Porter was planned as a material witness in that case.

Without Porter’s testimony Mosby’s murder case against Goodson becomes, almost unimaginably, even more laughable.

Mosby does have several options available to her. First, she can seek to delay the trial of Goodson (and, presumably, the other officers) until she’s had the opportunity to re-try Porter. Having now seen her case against Porter, however, it seems a long shot indeed that a unanimous jury would find him guilty of these criminal charges even on re-trial. (That said, “juries be crazy,” so one never knows what might happen.)

Alternatively, she could offer Porter immunity from prosecution. Such immunity would remove Porter’s legal jeopardy, and thus put him in a position in which he could be compelled to testify. Offering immunity, however, to a man that her prosecutors only days ago were characterizing as a lying and malicious killer would seem, uh, awkward. (Incidentally, Mosby’s prosecutors arguing in the first trial that Porter is a liar can hardly have improved his utility for them as a State’s witness in later trials. Also awkward.)

But, hey, according to legal analyst Solomon-Simmons “Mosby is an extremely bold, intelligent, and savvy legal professional” who “would not have moved forward with trial if she didn’t think she had everything she needed to secure a conviction.” And according to the NewsOne.com headline writers “Mosby’s Still Got This.”

Perhaps. But I’d want long odds.

Even The New York Times Can’t Put a Shine This One

Incidentally, it’s not just obscure “news” sources such as NewsOne.com struggling with how to cast Mosby’s disaster in a favorable light. Even that dying newspaper The New York Times finds itself having to ask questions awkward to the “Mosby is Awesome” narrative:

Did it mean that Ms. Mosby had overreached — as her critics have said — in an overzealous rush to prosecute? Did it mean that she had succeeded, against all expectations, in convincing at least some jurors that Officer Porter — who was not even involved in Mr. Gray’s arrest — was guilty of manslaughter, as she had charged? Or did it simply mean 12 people could not agree?

“It was a weak enough case that they didn’t win,” said Geoff Alpert, a professor of criminology and expert on police use of force at the University of South Carolina. “You can call it a mistrial, but the prosecution lost.”

If only someone had pointed this out early on.

–-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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Comments

Questions:

1. If Porter were convicted, wouldn’t he retain his right not to incriminate himself while his case was being appealed?

2. As Porter testified, hasn’t he waived his right not to incriminate himself?

    “1. If Porter were convicted, wouldn’t he retain his right not to incriminate himself while his case was being appealed?”

    An appeal is not a “do over” of the trial. The rules change profoundly once the defendant has found guilty at trial. He’s no longer presumed to be innocent, and the burden to prove otherwise is on the State, he’s now presumed to be (IS) guilty. All legal presumptions of the appellate courts will be in the favor of the verdict of guilt.

    “2. As Porter testified, hasn’t he waived his right not to incriminate himself?”

    Certainly he did so during his testimony. And, indeed, he subjected himself to cross-examination and never once claimed the 5th. Unlike an appeal, however, re-trial after a mistrial IS a “do over” of the trial, and everything is set back to step zero, as if the first trial never happened. So Porter has his right to not incriminate himself before his re-trial just as he did before his first trial.

    –Andrew, @LawSelfDefense

      I understand your answer to Q2, but on Q1, what about his right not to incriminate himself in other Defendants’ trials while his was on appeal?

        Started writing up an answer, but it’s just too complicated a set of issues to deal with in a blog post comment, especially given that it’s a total hypothetical, because Porter was NOT found guilty or not guilty and CAN NOT be compelled to testify. And I’ve got a big stack of work on my desk. 🙂

        –Andrew, @LawSelfDefense

          HaHa. OK. I forgot to thank you for the yeoman work you do on these trials. You are truly the “go to” guy for insightful analysis, mixed with a bit of sarcasm and humor.

          HandyGandy in reply to Andrew Branca. | December 18, 2015 at 2:52 pm

          As I understand it, in an appeal the facts are presumed to be correct given the evidence. There is no presumption about the law. His conviction can be set aside because of inadmissible evidence, wrong interpretation of statues, unconstitutionality of some laws etc. That would mean that he could be retried, and any testimony he now gives is admissible.

          That seems like a straightforward argument, but hey sometimes courts are as murky as juries are.

          If Mosby was determined to have him testify, couldn’t she grant him some sort of partial immunity? Basically saying that anything he says in a particular trial cannot be used against him? I think it’s called limited immunity.

          I also think that it is a minefield in practice. I seem to remember that Oliver North’s convictions were st aside because of limited immunity he was granted.

      Sammy Finkelman in reply to Andrew Branca. | December 18, 2015 at 1:57 pm

      So Porter has his right to not incriminate himself before his re-trial just as he did before his first trial.

      But the prosecution can, if it wants, read his entire testimony (complete with cross-examination) into the record. It is certainly true for any other witness who becomes unavailable.

      Or is that wrong?

      I would think they could use it, because anything he says can be used against him, and testifying constitutes awaiver of the right to remain silent.

      They just can’t call him again for further cross-examination.

        Not-a-lawyer, but I wouldn’t think the prosecution can read in Porter’s testimony if he asserts his right against self-incrimination because the defense can’t cross-examine him.

        Of course it can do that, at his trial or at the others’, but nothing he said helps them. What they’d hoped was that once he lost his immunity they could make him testify in the other defendants’ trials, and elicit testimony that was helpful to them, assuming he had any to give. Now they can’t do that.

        “I would think they could use it, because anything he says can be used against him, and testifying constitutes awaiver of the right to remain silent.”

        If you are suggesting that his prior testimony could be read into the record at the trial of one of his co-defendants, I think you are wrong. If Porter refuses to testify, then there would be a confrontation issue with allowing his testimony to be read to the jury. The co-defendant would not be able to cross-examine Porter.

I have to preface this with my I’m-not-a-lawyer-but:

“…Best for her, of course, would have been a guilty verdict. In that event she would have claimed a clear win for “justice.” As important for her next trials, she could have compelled Porter to testify in the trials of the other five officers, as he would no longer be under legal jeopardy and thus no longer could avail himself of his 5th Amendment right to not incriminate himself….”

Having been found guilty of *this* charge by the State does not mean Porter could not be charged with additional State charges, let alone Federal charges (such as civil rights violations, as in the Rodney King officer case). How could he be compelled to testify with such a sword hanging over his head? Mosby can NOT grant him immunity to Federal charges, but any Federal case would certainly be able to use his testimony in this case to convict him. Right?

    The doctrine of collateral estoppel would most likely preclude the State from trying Porter in a second trial on additional charges arising from the same events. They’re supposed to decide what they are going to try him on, and do it. If they leave charges on the table, that’s on them. Otherwise prosecutors could take innumerable swings at the ball, and that’s not generally permitted.

    With respect to Federal charges, what do you have in mind? Civil rights violations? There’s no evidence of it, besides the fact that both Porter and Gray are/were African American would greatly complicate any claim that Porter acted as he did from racial animus.

    –Andrew @LawSelfDefense

      I see a “most likely” and a “greatly complicate” in there, leading me to believe if I were in Porter’s shoes, I would be advised to keep my mouth shut and not testify in any other case. Advice that I would not hesitate a moment to take.

        Estragon in reply to georgfelis. | December 18, 2015 at 6:40 pm

        I damned sure would assert my 5th Amendment right until a judge forced me to testify.

          Heck, if I were Porter, I’d plead the 5th, let them hold me in contempt, and hang out in jail catching up on my reading.

          What are they going to do? Try to convict him of manslaughter on trumped up charges? Oh, wait.

          Man, I would LOVE to catch up on my reading. 🙂

          –Andrew, @LawSelfDefense

      HandyGandy in reply to Andrew Branca. | December 18, 2015 at 3:00 pm

      There may not be any evidence of racial animus, but I have heard that the DoJ/FBI is investigating Porter for civil rights violations, because well… Holder and Lynch.

      Shame it’s Porter and not White that would have made a great pun,

      Violation of civil rights is not limited to interracial cases, is it?

        Technically, no. But the Prosecutor STILL has to sell the narrative to the jury. Much easier if it’s a white cop, black suspect. Much harder if it’s a black cop and a black suspect.

        –Andrew, @LawSelfDefense

      DaveGinOly in reply to Andrew Branca. | December 18, 2015 at 10:59 pm

      “With respect to Federal charges, what do you have in mind? Civil rights violations? There’s no evidence of it…”

      There was no evidence that Porter was guilty of the charges in the late trial. That didn’t stop the state from making a run at him. Does Loretta Lynch have more compunction about needing evidence to bring trial than does Mosby? I’d not risk my neck on it.

JimMtnViewCaUSA | December 18, 2015 at 1:45 pm

Of course, though it is an unmitigated disaster for Mosby, the local gov’t has already turned over millions of tax payer money presumably feeling there is some guilt.
And the gov’t has allowed law and order to become a shambles.
And they’ve wasted time on this trial. Etc. Etc. Etc.

So the “unmitigated” part carries over to the People as well.

Sammy Finkelman | December 18, 2015 at 1:58 pm

I don’t think it is an accident that the first policeman put on trial was black.

That wasn’t in anticipation of a guilty verdict – that was in anticipation of a not guilty verdict.

    Not necessarily. They could have been hoping to railroad Porter and get a guilty verdict, which would likely have triggered all the other defendants to plead guilty in plea-bargains. Porter was among the weakest of the prosecution’s cases. If he had gone down, everyone else would have thought, “man, if *he* went down at trial, *I* have no chance to win” (with the white defendants adding “…especially as a white person when even a black officer is getting convicted in a racially-charged incident”).

      CalFed in reply to Ichneumon. | December 18, 2015 at 3:20 pm

      I don’t think it is clear that Porter’s case is among the weakest. That remains to be seen.

      Even less clear is the validity of Sammy’s belief that the Prosecution chose to try Porter first in anticipation of a not guilty verdict. What possible strategy would be served by first trying a defendant whom you expected to be acquitted?

        Char Char Binks in reply to CalFed. | December 19, 2015 at 5:53 pm

        They had the least to lose with a not guilty verdict against Porter. If they lost against Goodson, for instance, that would probably have blown everything for them.

      Char Char Binks in reply to Ichneumon. | December 19, 2015 at 12:52 pm

      Sam and Ich, you’re both right. Any loss, would be a blow to the pros., but a loss to white cop would destroy the very purpose of the trials. The longer she can keep them under threat, the better. The process is the punishment.

    I agree. No accident. This whole trial is about throwing these officers to the lions in order to keep the peace in Baltimore. She must have known the case was weak. A not guilty verdict for a black officer would create far far less tension that a white officer being acquitted. It a way to less the city down easy.

      CalFed in reply to phiremin. | December 18, 2015 at 4:58 pm

      “She must have known the case was weak.”

      Perhaps. Or maybe she is a clueless politico with a law degree and no real sense for the law.

    She thought it was win-win. If not guilty, the riots would influence the juries for the other trials.

    So a mistrial was the worst possible outcome, as Andrew said.

Have another helping of shadenfreude, Andrew. Heck, have two or three. LOL

Ni! Could it be? “Neee-wom!” Mosby’s list of charges may have been the prototype for the college kid’s demand lists? “Peng!”

I think that the prosecutors can use any interviews Porter gave before the trial but not his testimony during the trial. I believe that Mr. Branca answered this when he said that “re-trial after a mistrial IS a “do over” of the trial, and everything is set back to step zero, as if the first trial never happened.”

    Bruce Hayden in reply to factsaregood. | December 18, 2015 at 3:15 pm

    Naw – the prosecution can’t make him testify, but they can use his previous testimony by reading it to the jury.

      HandyGandy in reply to Bruce Hayden. | December 18, 2015 at 3:37 pm

      No you cannot. Generally you cannot introduce testimony where opposing counsel cannot cross examine.

        Milhouse in reply to HandyGandy. | December 18, 2015 at 4:25 pm

        But opposing counsel can cross-examine him by calling him. If it chooses not to, surely that’s their problem.

          CalFed in reply to Milhouse. | December 18, 2015 at 5:03 pm

          I don’t think so.

          If he indicates that he intends to take the fifth, then he can not be cross examined by opposing counsel

          ecreegan in reply to Milhouse. | December 18, 2015 at 5:38 pm

          Huh? Porter can plead self-incrimination and stfu whether he’s called by the prosecution or the defense; therefore, if he takes the fifth the defense can’t cross-examine him. (Not-a-lawyer, but I see no loopholes thus far; when exactly you can call someone who can’t be cross-examined I don’t know, but I do know it’s very rare.)

          ConradCA in reply to Milhouse. | December 18, 2015 at 11:38 pm

          She is clearly a victim of affirmative action racism.

          http://www.stattorney.org/office/meet-marilyn-mosby

          Marilyn Mosby is Baltimore City’s newly elected State’s Attorney. She is the youngest chief prosecutor of any major city in America.

          After graduating from Boston College Law School, Mosby joined the Baltimore City State’s Attorney’s Office. After five months of service as an Assistant State’s Attorney, she was promoted to Supervisor of the Early Resolution Court where she managed and trained newly sworn prosecutors and support staff on courtroom decorum and docket management. By 2011, Mosby had advanced from District Court to the General Trial Division, where she prosecuted some of the most heinous felonies in the state.

      Ragspierre in reply to Bruce Hayden. | December 18, 2015 at 5:25 pm

      I do believe that fits squarely in the definition of HEARSAY, and I can’t think of an exception.

    “I think that the prosecutors can use any interviews Porter gave before the trial ”

    I do not believe that is true. If he chooses not to testify, statements made by Porter outside of court are generally inadmissible hearsay. An exception to the hearsay rule are statements against interest. That is why confessions made outside of court are allowed as an exception to the hearsay rule.

      “I do not believe that is true. If he chooses not to testify, statements made by Porter outside of court are generally inadmissible hearsay. An exception to the hearsay rule are statements against interest. That is why confessions made outside of court are allowed as an exception to the hearsay rule.”

      Concur.

      –Andrew, @LawSelfDefense

      Estragon in reply to CalFed. | December 18, 2015 at 11:51 pm

      Exactly: anything you say can be used AGAINST you in court. But if you give the cop interviewing you exculpatory evidence, it’s hearsay and inadmissible (unless it doesn’t check out, in which case it can be used against you, such as a phony alibi). Another reason speaking to police is often the dumbest possible thing you can do.

I have not yet finished reading the articles here, so forgive me if I dup.

The Baltimore Sun has an article on problems the prosecution created for itself.

http://www.baltimoresun.com/news/maryland/freddie-gray/bs-md-ci-porter-credibility-20151217-story.html

Specifically, Schaztow called Porter a liar in closing statements.
If Porter is called as a witness in othjeer cases that statement might be used to impeach him.

    Bruce Hayden in reply to HandyGandy. | December 18, 2015 at 3:27 pm

    This is interesting. The prosecution essentially called Porter a lier in their summation. If the prosecution then uses Porter as a witness against other officers, to what extent can that be taken as an admission by the prosecution that Porter is a lier? Which, would, arguably be admissible, or maybe even keep the prosecution from denying that Porter is a lier.

Even if Porter was acquitted or convicted, could he be called to testify?

He is reportedly still under investigation for federal civil rights violations. Unless they make those go away he can still plead the fifth.

Something I have not heard addressed. Can they move the other trial back? Would that create speedy trial problems? Especially for the later prosecutions.

    Bruce Hayden in reply to HandyGandy. | December 18, 2015 at 3:29 pm

    That is another good question that that Baltimore Sun article brings up. They point out that the prosecution typically can bring cases in whatever order they want. But, this would seemingly mean that all the rest of the cases be pushed back, and that means, in particular, rescheduling the next one. That, to me, would smell a bit.

      HandyGandy in reply to Bruce Hayden. | December 18, 2015 at 8:53 pm

      No the Sun article does not address the issue.

      The question is does moving back the other defendents trial impinge on their 6th amendment right to a speedy trial.

      Many places say that a trial must begin in a certain amount of time. A general practice is that trials cannot be delayed without a good reason. After a trial is scheduled, I think a delay because they want to modify the docket to schedule a retrial is not a good reason.
      Not when the retrial cannot be scheduled for after your trial.

So the fool didn’t get what she wanted.

Would I be wrong in thinking that almost all competent blacks migrate to the GOP? Of course, this is somewhat true with whites as well, but the white Democrats seem somewhat better at hiding their incompetence and the blacks don’t seem to feel the need to bother – they are generally in safe positions (elected or appointed) and don’t even need to pretend they know what there are doing. Besides, no matter how incompetent, they know the MSM will cover for them. Marilyn Mosby is just the latest example.

“However, it is obvious that Mosby is an extremely bold, intelligent, and savvy legal professional focused on doing what she believes is best for her constituents.”

Are not the police officers constituents too? Does she believe that she acted in THEIR best interests? More likely she again set them up for failure.

Worse the police are the ones that will have to clean up her mess. She has built up the “black community” – her intended constituents – to believe that “justice” will be brought to bear. Seems like she is inciting MORE TROUBLE, as she knew, OR SHOULD HAVE KNOWN, the case was weak and should never have been brought on the merits.

“However, it is obvious that Mosby is an extremely bold, intelligent, and savvy legal professional focused on doing what she believes is best for her constituents.”

Since when is a prosecutors’ duty to their constituents vs the law and a fair and just application of the law??? Thats like saying if the majority of her constituents thought I was guilty even though I’m thousands of miles away, I should be charged… Thats not the country I live in and have served.

“Wait, what? Solomon-Simmons acknowledges that Mosby may have overcharged the officers and pushed the case too soon, yet at the same time believes her to be “an extremely bold, intelligent, and savvy legal professional.” How’s that work, exactly?”

Note the nice mocha color of her skin. THAT is how that works, exactly.

    DaveGinOly in reply to Paul. | December 18, 2015 at 11:05 pm

    Note that even in a candid photo she is scowling. She and Mooch are what are known in the black community as “evil black women.”

@Andrew let me raise a technical point your statement “As important for her next trials, she could have compelled Porter to testify in the trials of the other five officers, as he would no longer be under legal jeopardy”

Sadly, the Supreme Court, using the notion of “dual sovereignty” has ruled that a State prosecution is not a bar to a successive Federal Prosecution. Stoner’s Law Review Article provides a good primer.

Dual prosecutions are governed by the “Petite Policy”, which may be found in 9-2.031 of the US Attorney’s Manual.

In the case of Porter’s acquittal the US Attorney would be free to conclude “The second substantive prerequisite is that the prior prosecution must have left that substantial federal interest demonstrably unvindicated”

    I’m well aware of the dual sovereignty issues.

    (1) I simply don’t see a credible Civil Rights claim against Porter. Think about it, what’s the narrative? Porter denied Gray his civil rights due to racial animus?

    (2) Just because Porter could potentially be compelled to testify doesn’t mean that such compelled testimony could necessarily be used against him in a later prosecution.

    But again, these are complex areas of the law involving a great many issues and subject to a great many variables, and in this case they are entirely speculative because Porter can NOT be compelled to testify.

    –Andrew, @LawSelfDefense

      objection in reply to Andrew Branca. | December 18, 2015 at 6:18 pm

      What bothers me, is that I don’t see a prosecutable case on the State level against Porter. It is pure politics. Until the Administration changes, Federal charges, of similar merit to the State charges, can be brought.

      Your second point is absolutely fascinating from a legal perspective. Certainly trial counsel would assert that claim in a United States District Court. I don’t think there is much case law on the issue, but I don’t want to take the time to research the matter.

      Most District Court Judges are of high caliber. Under ordinary circumstances, Point (2) would be very persuasive just on the equities. But if it is a politically charged case …?

      I’d like to take a moment to salute defense counsel in this case. It takes real courage to defend a man under these highly charged circumstances.

      HandyGandy in reply to Andrew Branca. | December 18, 2015 at 6:31 pm

      I think this is murky area, but I would argue to the judge ( I am not a lawyer ):
      The state has granted me immunity, the federal government has not. There are crimes which could cover the basic circumstances. Those circumstances are a black person hurt while interacting with a policeman. This is exactly what the civil rights laws were meant to govern. So there is a potential case against me.

      I don’t have to prove there is an actual case against me. I don’t have to lay out a primae facae case. For the court to require me to lay out a case, is in fact a violation of my fifth amendment rights.

      Once I show there is some potential case against me, then it is up to the state to prove that I will not be charged by the federal government.

      DaveGinOly in reply to Andrew Branca. | December 18, 2015 at 11:14 pm

      Officer Porter was wielding the authority of the state against a black citizen. I don’t think personal racial animus is necessary to sustain a civil rights claim against him. The Civil Rights Act was, in part, intended to bring the States’ authority to heel with respect to how they treat minorities. Officer Porter, in his capacity as a LEO, represents the State and its authority, and is able to direct abuse at minorities in its name.

        I’ll bet a Guinness that Porter is not within the next two years brought to trial on a Federal DOJ Civil rights violation over the death of Freddie Gray.

        There’s theory, and there’s reality. I’m betting on reality. 🙂

        –Andrew, @LawSelfDefense

          The point is not that he WILL be so charged but that he COULD be, so he cannot be required to give evidence against himself.

          Char Char Binks in reply to Andrew Branca. | December 19, 2015 at 1:56 pm

          I’ll see that Guinness and raise you a porter. I don’t actually think the state or the feds have a stout case against Porter, so I doubt even a Dem. DOJ head hops on that for the sake of social justice, I just like puns. And beer is good for what ails you.

DINORightMarie | December 18, 2015 at 3:58 pm

I weep for our judicial system.

And I laugh with you that people are twisting themselves up so completely to justify this woman’s incompetence, this travesty.

All charges should be dropped, IMHO, for this man and all the rest of the officers.

Thanks for the great coverage – given how busy you are. 🙂

These cops who did their jobs will not be made whole again. That is the tragedy.

It sends a strong message to criminals and to cops who are there to protect us.

This woman is an idiot. May God set it right in the cosmic scenery of time.

MARILYN MOSBY, BALTIMORE’S SISYPHUS

All us fans of Greek tragedies remember the tale of Sisyphus, who, for eternity, pushed the rock up the mountain, only to see it roll back down, time after time. I see State’s Attorney Marilyn Mosby as the modern day Sisyphus, condemned by her social justice animus to try each of the six cases, have the result be a hung jury, and then be forced to try the same case again, and again, and again . . .

What a tragedy . . .

The look on Mrs. Mosby’s face in that picture above is just priceless. She realizes just how bad an outcome it was for her and by proxy her husband.

Aside from testifying to participating in a conspiracy with the driver to give Gray a “rough ride”, what can Porter testify to that would support murder 2?
All I heard so far in regard to the driver is Porter saying
1 he is responsible for Gray’s safety
2 he notified the driver Gray wanted a medic

Is anyone sure Ms. Mosby has a law degree? And if so shouldn’t we pointing and laughing at the law school that let her graduate with one?

In any case I appreciate the keen legal analytical expertise Solomon-Simmons who has graciously voxsplained what self-incrimination means. (tell on).

I never would have figured that out.

Need I say, not a lawyer?

Any idea where she will be pole dancing during spring break?

I keep hearing faint echoes from the George Zimmerman case: going around the grand jury, a prosecutor seeking “justice” for the victim but seemingly not for the accused, an arrest affidavit that doesn’t support the charges, charges that shouldn’t have been brought in the first place, a prosecution that calls on the jury to speculate and fill in the gaps, expert testimony that severely undermines the prosecution’s case, financial settlements that happen before the trial, prosecution withholding evidence from the defense, etc., etc. Did no one learn anything from Zimmerman?

The burning issue to me is how long will it be before the jury split on the Porter mistrial leaks out.

I would love to see the break-down for each of the four counts. After all, wouldn’t it be a hoot if the Black jurors were pushing for a guilty verdict and the white jurors were standing firm for not guilty. For the Black cop.

Shades of Atticus Finch.

    If I had to bet, I would go for a 11:1 or 10:2 split in favor of Not Guilty on all charges.

    Reasoning (and wild guessing): It seemed as if the judge wanted a guilty verdict. Guilty would have made the next trials much easier, prevented him from being blamed for looting, etc… The jury was pulled after a fairly short period. Guilty verdicts seem to take a lot longer to deliberate. (If they go through 100 points, and the second one is Reasonable Doubt, bang, done. If they have to go through all 100, it takes forever.)

    So given that as a wild guess/theory, if the judge heard that the jury is 11:1 in favor of guilty, he would give them as many weeks as they need. On the other hand, if the jury reports 11:1 in favor of not guilty, it’s time to pull the plug before that one holdout bails and the resulting riots get blamed on the judge.

    Mind you, this is a baseless theory and my own personal opinion on the innocence of the officer. It could have been just that the whole jury pool wanted to see the opening day of Star Wars…

Should Bledsoe even be involved in the prosecution…?

In theory, she has two competing and conflicting duties here: 1) as Gray’s former attorney, she is bound by privilege to not disclose any confidential information she may have learned during her representation of Gray, but at the same time 2) she has a duty to disclose any exculpatory evidence she has knowledge of to the defense.

Granted, she hasn’t changed sides so to speak and is representing Gray’s interests in both cases, but she also had a duty to investigate the matter thoroughly to ensure that she isn’t prosecuting an innocent defendant. That being said, she seemingly used an existing knowledge of Gray’s crash-for-cash schemes when she instructed her investigators to not go looking under certain rocks.

Oops! This link points to this article not an earlier one.

If only someone had pointed this out early on. (https://legalinsurrection.com/2015/12/freddie-gray-trial-the-schadenfreude-edition)

Prediction

Yesterday they were supposed to schedule the retrial but didn’t.

If I were the judge I would be thinking that the next five trials are likely to be hung again. So I now have six more trials on my docket. Remember judges have a lot of work too.

Then I would strongly hint to the prosecution, you get one retrial then I dismiss.

I’m sure the prosecution does not want to retry either. The case is more trouble then it’s worth.

So what they will do is go through the motions of retrying, but as the other trials go on, the prosecution will simply miss the deadline to refile charges. They will hope that the next trials distract people.

This prediction goes out the window if the vote was 10:2 or 11:1 to
convict.

Sadly, my experiences in providing police services to the Brooklyn, NY community Shawn Jay Z Carter raps about attempting to destroy by selling dangerous life harming addicitve drugs to his depressed neighbors and using his semi-automatic Mack Milli to dominate and instill fear in his peaceful neighbors, tells me young Freddie Gray, much like young Shawn, young Kendrick Lamar and young Tupac Shakur, was a victim of America’s expanding and shameful *National Epidemic of Childhood Abuse and Neglect*, aka *Poverty*, that for more than two generations has deprived Mr, Freddie Gray and untold numbers of American kids from experiencing and enjoying a fairly happy American kid childhood with *Safe Streets* to travel and play on.

*Child Abuse and Neglect* that is primarily responsible for populating our prisons with depressed, angry, frustrated, undisciplined, unpredictable, sometimes suicidal teens and adults full of resentment for irresponsibly being introduced to a life of hardships and struggles.

*Early Childhood Abuse and Neglect* that often leads depressed, sometimes suicidal *(NY Times May 18, 2015 – Rise in Suicide by Black Children Surprises Researchers)* children to develop into depressed, angry, frustrated, unpredictable, sometimes suicidal teens and adults lacking empathy and compassion for others, though needing to vent their pent up negative emotions, often causing emotional and physical harm to peaceful people…instead of venting their anger, resentment and pain on the immature single moms and/or dads who introduced them to a life of pain and struggle by irresponsibly building a family before acquiring the practical skills, *PATIENCE* and means to successfully raise and nurture a developing young child like Mr. Freddie Gray who matures into a fairly happy responsible teen and adult with mostly fond memories of his or her childhood.

The question all concerned, compassionate Americans should seriously be asking ourselves, our elected, civil, social, community and religious leaders is, “What real, substantial changes in our society’s attitude and laws need to occur to prevent abuse that often causes young kids like Freddie Gray to mature into depressed, frustrated, angry teens and adults as a result of experiencing the *emotional and/or physical trauma of an abusive childhood?”*

*Suicidal Behaviors in the African American Community*

http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1615885/

https://knutesniche.wordpress.com/2015/11/28/is-police-misconduct-and-child-abuse-neglect-intertwined/

https://knutesniche.wordpress.com/2015/12/09/abiola-abrams-the-myth-of-the-strong-black-woman-is-killing-us-literally/

Black *(Children’s)* Lives Matter; Take Pride In Parenting; *End Our National Epidemic of Child Abuse and Neglect*; End Community Violence, Police Fear & Educator’s Frustrations

What I noticed that by stating that Freddie was up shaking the van at the second stop, the prosecution has deconstructed their own cases against Miller ,Nero and Rice. The ME stating that if Freddie had remained as he was placed ,would not have been injured, does not help. I get the feeling the ME was just going thru the motions and did not completely buy her own story. I would imagine any who go against Mosby do so at their own peril , I read where 37 out of 120 prosecutors have left this year. She apparently fires people by going in their office and making a throat cut motion to them.

    Char Char Binks in reply to dmi60ex. | December 19, 2015 at 5:41 pm

    It doesn’t matter that Freddie was shaking the van, or when. Goodson should have stopped the van, or the other officers should have prevented Goodson from driving it when Gray started shaking it, or before, and forced Fredidie to live. After all, he was black, and his life mattered.

    Agreed. A point I have made in previous threads: If Porter walks, every single cop who touched Freddie prior to Porter walks. That is why Porter’s conviction is the linchpin for the prosecution.

Char Char Binks | December 19, 2015 at 5:47 pm

Damario Solomon-Simmons definitely has the Wisdom of Simmons.

I like this one.
http://www.baltimoresun.com/news/maryland/freddie-gray/bs-md-hung-juries-20151219-story.html
Which implies that the prosecution should be favored because 70% of retrials result in convictions. What they ignore is that this statistic says that 30% of the cherry-picked-by-the-prosecution retrials result in an acquital.

We know this case was not cherry picked, it was picked for political reasons.

“A judge’s declaration of a mistrial for officer William Porter on Wednesday in the death of Freddie Gray dealt a devastating blow to Baltimore prosecutor Marilyn Mosby’s case.”

Not a blow to her case but a blow to her political aspirations.

The Presidency is out, but there is still the AG.

Could the next Republican president pardon these officers and thereby stop their persecution at the hands of the progressive fascists? Do you think that it’s like that they would be pardoned?

    ConradCA in reply to ConradCA. | December 22, 2015 at 12:35 am

    Also, did Officer Porter’s attorney move to have the charges dropped because the obviously wasn’t enough evidence to prove guilt?

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