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Freddie Gray Analysis: Day 6: Closing Arguments

Freddie Gray Analysis: Day 6: Closing Arguments

When the judge acts as jury

Today the prosecutors and defense presented their closing arguments in the “Freddie Gray” trial of Baltimore Police Officer Edward Nero. Naturally, nothing much new emerged, and each side simply summarized their theory of the case.

There was one unusual facet of these closing arguments, however. Normally, closing arguments are presented as monologues to a jury, and the jury must simply sit and listen. In this bench trial, however, trial Judge Barry Williams is serving as the jury, and has the opportunity to ask questions of the lawyers as they close. It appears from news reports in the Baltimore Sun that Judge Williams took full advantage of this opportunity, particularly with respect to the prosecution’s closing.

State’s Attorney Bledsoe presented the state’s theory of the case: Officer Nero committed the crime of second-degree assault by touching Gray without having independently determined reasonable suspicion or probable cause for stopping and arresting Gray, respectively. Further, Nero committed the crime of reckless endangerment because he was responsible for ensuring that Gray was seat belted into the police van following his arrest.

Judge Williams appeared to be particularly concerned about the novel nature of the state’s theory on the second-degree assault charge, asking Bledsoe “”Every time there is an arrest without probable cause, it is a crime?” Bledsoe at first responded that it depends on the circumstances, but when further pressed by Williams she stated that it every arrest without probable cause is, indeed, a crime.

The novelty—some would say insanity–of this theory is obvious on its face. A substantial fraction of police arrests are determined by prosecutors after the fact to lack sufficient probable cause to justify prosecution. There is no record in any state of this extremely common purported failing by an officer otherwise operating in good faith being used to justify criminal prosecution of the officer. Instead, charges are dismissed and or seized evidence is deemed inadmissible.

On the reckless endangerment charge re: the alleged failure of duty on the part of Nero to seat belt Gray into the van , Bledsoe argued that it was simply impossible that Nero would not know the safety concerns related to placing someone in a vehicle without a seat belt. This argument was presumably made with a straight face, even though the Baltimore Police Department for it’s enter history had no requirement to seat belt suspects in police vans until adopting such a policy for the first time mere days before Gray’s arrest. So, the policy that was perfectly acceptable to the Baltimore Police Department for decades is now supposed to have been obviously reckless endangerment by a patrol officer a few days after the policy change.

Defense counsel Marc Zayon argued in his closing that Nero violated no laws, that he had no awareness that he was doing anything wrong, and that he acted in good faith an in accordance with his training and long-standing department practice throughout his interaction with Gray.

Further, whatever Nero’s role in Gray’s arrest and transport it was secondary to that of other officers—particularly Officer Garrett Miller in the context of Gray’s arrest and van driver Officer Caesar Goodson in the context of Gray’s transport.

As to the state’s argument that the use of the collective pronoun “we” in reporting on Gray’s arrest and transport to investigators, Zayon argued that this does not literally mean that every officer present was substantively involved with every facet of the arrest and transport. “If [football quarterback] Joe Flacco says ‘We had a great game, we had three interceptions, we kept the other team to 7 points,’ he means the team as a collective, he doesn’t mean he personally made an interception.”

Zayon also argued that Nero had never received training on seat belting prisoners in police vans, that there was no evidence that Nero had actually been informed of the just-adopted seat belt policy, that even if he had been informed he retained discretion to not seat belt depending on the circumstances, and that in any case it wasn’t Nero’s responsibility, but Goodson’s, to make sure Gray was seat belted in accordance with departmental policy. Further, such general orders as the seat belt policy are not laws for which criminal liability can be imposed.

Zayon further argued that the state’s reckless endangerment statute excludes incidents that involve the “use of vehicles,” (which are covered by other statutes that would generally be read as limited to the operators of the vehicles and thus would be inapplicable to Nero). Even if the reckless endangerment did apply, however, it would require that it was Gray’s ultimate injury was foreseeable to Nero and that there was no intervening act that was the causal mechanism of the injury—such as Gray deciding to stand up in the van while shackled at the wrists and ankles.

The state’s rebuttal to the defense closing was presented by Chief Deputy State’s Attorney Michael Schatzow. Schatzow immediately began to back-pedal on his colleague’s claim that any arrest without probable cause constitutes a criminal assault. He is quoted by the Baltimore Sun as stating:

Our position is that not every arrest that occurs without probable cause is a crime. Our position is that every arrest that occurs without probable cause and for which conduct for officers is not objectively reasonable contains all the elements necessary for a crime. Schatzow then argued that Nero’s failure to ask Lieutenant Rice—the commanding officer who initiated the pursuit of Gray—why they were pursuing Gray makes Nero’s participation unreasonable, and by extension unlawful.

Williams interjected with questions at this point, asking Schatzow: “The heart of your case is … the failure to ask means he’s committed a crime? It’s not a civil issue, it’s a criminal issue?”

Defense counsel Zayon had mentioned in his closing that Lieutenant Rice was during the relevant time period still pursing a second suspect, and not immediately available to be questioned by Nero. In response to this point, Schatzow suggested that Nero could have asked Gray why he was being arrested in an effort to determine reasonable suspicion and probable cause.

Judge Williams responded to this line of argument by saying, “I don’t understand the argument that it is the responsibility of anyone to ask Mr. Gray questions.”

On the reckless endangerment charge Schatzow said it was simply common sense that there was a risk to Gray’s life if he wasn’t seat belted into the van, and any police officer would know this. In response Judge Williams noted that the defense had sought to introduce into evidence the policies of other departments on seat belting, that the State had objected to this evidence, and that Williams had agreed to exclude it.

Schatzow and Williams also spent time going back and forth on just who really had legal custody of Gray once he was placed in the van. The defense position is that once the suspect is in the van he is in the custody of the van driver (here, Goodson), and no longer in the custody of the arresting officer. The state argues that Nero never in fact transferred custody to the driver.

To the state’s argument on this point Judge Williams inquired “When an individual is placed in the van, you’re saying custody stays with Nero until … when?”

And that’s about it for the closing arguments.

Among the interesting facets of this trial are the things once claimed to be all-important by state prosecutors that were, in fact, never raised at any point in the trial. Among these issues are: whether Gray’s knife was unlawful, whether the neighborhood in which Gray was arrested was a high-crime neighborhood (a factor in his Terry stop), and whether Nero responding to his superior’s (Lt. Rice) call for assistance in the pursuit of Gray was reasonable.

In any case, trial Judge Barry Williams has announced that he anticipates announcing his verdict in this trial at 10:30am on Monday, May 23.

In other news, I’ve just arrived at the NRA Annual Meeting in Louisville KY—indeed, I’m writing this post while in the media room, as I have press credentials this year. The meeting proper really begins tomorrow and runs through Sunday, and I expect I’ll have a post or two each of those days for those of you interested in gun stuff.

–-Andrew, @LawSelfDefense

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I guess that the little 5 year old girl that was expelled for a bubble “gun” in Colorado should be glad she and her parents don’t live in baltimore. Based upon the INSANITY displayed by the prosecution in the gray case, she might be facing felony charges!

Going out on a limb here…

Williams essentially decided this case already.

Acquittal on all charges.

    Gremlin1974 in reply to Ragspierre. | May 19, 2016 at 8:31 pm

    It sure sounds like he is into the “Oh hell, what did I get myself into” mode.

    I wonder if the cases being presented to him even come close to matching what was shown to him when he agreed to let this prosecution go forward?

      alaskabob in reply to Gremlin1974. | May 19, 2016 at 9:32 pm

      Hung jury… hung judge? Does he HAVE to make a ruling? Novel… yes… but unprecedented?

      Ragspierre in reply to Gremlin1974. | May 19, 2016 at 9:44 pm

      That’s a very nice question. I’ve seen it in civil trials, where the promised evidence just never appears.

      But that’s what summary judgment is for…in civil trials. In most civil jurisdictions, we have a “no-evidence” form of summary judgment where we can challenge evidence way up-stream from a trial. In Texas, the rules say a trial court has to rule on it, too. But that doesn’t mean a court WILL. Some courts simply will not issue rulings. I’ve never understood why a judge goes to the trouble of getting their fanny on a bench when they’re too chicken to rule.

      In Texas, according to my very limited knowledge of criminal procedure, there is no analog to summary judgement.

        “In Texas, according to my very limited knowledge of criminal procedure, there is no analog to summary judgement.”

        Huh. I don’t claim any particular expertise in criminal procedure, but I would find the absence of any provision for the defense to move that the prosecution has simply failed as a matter of law to prove a crime (e.g, failed on one or more element(s) of the crime charged to produce ANY evidence in support) rather odd.

        –Andrew, @LawSelfDefense

          Ragspierre in reply to Andrew Branca. | May 19, 2016 at 10:15 pm

          There’s a motion to dismiss, of course.

          I’m told by my criminal bar buds that they rarely file one, since it is so rarely successful if all they can do is challenge the evidence the prosecutor has.

          But I dunno…

          Oh, sure, if all they can do is CHALLENGE the EVIDENCE, well the evidence is the purview of the jury. The judge is just going to hand it over to them. At least, I would.

          But sometimes the prosecution literally has NO evidence on an element of the crime. In that case it’s simply not possible for a rational jury to arrive at a verdict of guilty, because that element (and therefore the overall crime) can’t be proven beyond a reasonable doubt as a simple function of reason.

          In any case, I think we’re talking in circles. 🙂 Motion to dismiss is what I had in mind. In some jurisdictions it’s rarely used because it’s rarely successful, and in other jurisdictions it’s often used despite the fact that it’s rarely successful. But when it’s used appropriately, it has its place.

          –Andrew, @LawSelfDefense

        DaveGinOly in reply to Ragspierre. | May 20, 2016 at 1:02 am

        In a criminal trial, there can’t possibly be a “hung” judge.

        The burden of proof is entirely on the prosecution. The prosecution’s failure to prove its case leaves the presumption of innocence intact; a judge has no choice but to declare the defendant “not guilty” as a matter of law. This would be so even if the judge thought the defense case weak, because the defense is under no obligation to prove anything. Indeed, the defense doesn’t even have to put on a defense – all that’s necessary for an acquittal is the prosecution’s failure to convince the judge (or a jury) of a defendant’s guilt.

        A judge can’t say to the defense, “I didn’t hear enough testimony or see enough evidence to support your case,” because the defense isn’t burdened with proof. However, if a judge says the same thing to the prosecution, the prosecution has failed – the defendant is “not guilty.”

    Estragon in reply to Ragspierre. | May 20, 2016 at 8:26 am

    I hope the judge rebukes the prosecution for bringing the case to trial. It’s ridiculous. I don’t see a reasonable case against any of the officers.

    Twanger in reply to Ragspierre. | May 20, 2016 at 11:52 am

    I agree Rags.
    Based on the line of questioning by the Judge is seems pretty clear that he is almost incredulous that the prosecution would even make such claims.

      Ragspierre in reply to Twanger. | May 20, 2016 at 12:05 pm

      It’s also telling that you have two different representations of the legal theories from two prosecutors.

      That ain’t never good…

“…Schatzow suggested that Nero could have asked Gray why he was being arrested in an effort to determine reasonable suspicion and probable cause…”

The stupid just drips off this statement.

When was the last time… skip that, when was the *first* time a felon being arrested told the arresting officer, “Why yes, officer. I am being arrested for committing a felony out there on the street corner.”

I would tend to believe the conversation nearly always goes, “I didn’t do nutthin’ at all, the cops all got it in for me, I don’t know where those drugs came from, that’s not my knife, it got planted on me, I’m gonna sue you and the department for false arrest…”

stevewhitemd | May 19, 2016 at 8:04 pm

If arresting someone without probable cause is a felony crime, there are a large number of guilty cops walking free today.

What is the standard used by a police officer to arrest someone on the street? That is the standard to which Officer Nero, and every police officer, should be held. If it isn’t “probable cause”, then what is it? Must an officer be required to articulate every element of the crime — Colonel Mustard, in the dining room, with the candlestick?

Further, does the state of Maryland (or any state) currently make arresting someone without “probable cause” a felony crime? Is that statute in the books? If not, why does the prosecutor get to make that argument? If ever there’s a call for the old principle of mens rea, it’s clearly in this situation. No reasonable person would see a simple mistaken or improper arrest to be a felony without some aggravating circumstance. The prosecutor certainly didn’t articulate such circumstances in this case.

    Gremlin1974 in reply to stevewhitemd. | May 19, 2016 at 8:36 pm

    Well it was my understanding that cops only mention what crimes that they think the suspect can be charged with, it is the prosecutor’s final decision as to what charges are actually brought and they can be different than the arresting charges.

    So if a cop arrests for attempted murder and the prosecutor charges the person with Assault and Battery does that mean the cop is responsible for arresting for the wrong charge?

    JackRussellTerrierist in reply to stevewhitemd. | May 19, 2016 at 8:47 pm

    That’s because the knife was illegal.

    Estragon in reply to stevewhitemd. | May 20, 2016 at 8:31 am

    “Probable cause” usually includes any crime, the details of charges come after all evidence is gathered. And it means for the officers’ belief at the time, not how it turns out.

    There is a huge gap between lack of probable cause and a malicious abuse of authority which is what the prosecution seems to allege here.

Char Char Binks | May 19, 2016 at 8:27 pm

Still, Nero IS blatantly white.

Gremlin1974 | May 19, 2016 at 8:28 pm

” Schatzow then argued that Nero’s failure to ask Lieutenant Rice—the commanding officer who initiated the pursuit of Gray—why they were pursuing Gray makes Nero’s participation unreasonable, and by extension unlawful.”

“Schatzow suggested that Nero could have asked Gray why he was being arrested in an effort to determine reasonable suspicion and probable cause.”

Yea just ask the suspect I am sure it will work out fine, lmao.

“Judge Williams noted that the defense had sought to introduce into evidence the policies of other departments on seat belting, that the State had objected to this evidence, and that Williams had agreed to exclude it.”

Ouch, that had to hurt.

Gremlin1974 | May 19, 2016 at 8:29 pm

Oh, Andrew have a great time at the meeting. I wish I was able to be there with the rest of you crazy gun nuts!

Federal Judge just slammed the Department of Justice for their bold face lies…

“Now, however, having studied the Government’s filings in this case, its admissions make one conclusion indisputably clear: the Justice Department lawyers knew the true facts and misrepresented those facts to the citizens of the 26 Plaintiff States, their lawyers and this Court on multiple occasions.”

Re-education camps for assistant U.S.Attorneys…

“…hereby orders that any attorney employed at the Justice Department in Washington, D.C. who appears, or seeks to appear, in a court (state or federal) in any of the 26 Plaintiff States annually attend a legal ethics course.”

and for Holders attack dogs from Main Justice…

“The Court does not have the power to disbar the counsel in this case, but it does have the power to revoke the pro hac vice status of out-of-state lawyers who act unethically in court. By a separate sealed order that it is simultaneously issuing, that is being done”

Can we get the names of these mutants?

    Gremlin1974 in reply to catscradle. | May 19, 2016 at 8:38 pm

    Yep, Obammies Department of (Social) Justice just ran into an actual justice, lol.

    WOWZA. That should be its own post.

    Paging Professor Jacobson. Paging Professor Jacobson.

    –Andrew, @LawSelfDefense

    alaskabob in reply to catscradle. | May 20, 2016 at 12:08 am

    I would draw from another movie ..”Serenity” where the assassin reminds the doctor that in olden days men who failed so badly would throw themselves on their swords. I am reminded that one DOJ attorney did that after ruining Senator Ted Stevens’ life. This is a reminder that Leftist Prog lawyers are entrenched in Justice as in other government offices. I do not hold out hope that Lynch is any different than Holder, and deceit and lies are functional tools of these people. If I am wrong, good. I am not an officer of the court so I am relatively free to such opinions although who knows how long is the arm of prog social justice.

I still think Williams may get Nero on the reckless endangerment or the misconduct.

Zayon brought up that the reckless endangerment charge excluded vehicles and when I read the statute that was my interpretation too.

Maybe someone here would be able to read it and opine.

It would not surprise me that Mosby would charge the wrong statute.

legacyrepublican | May 19, 2016 at 10:21 pm

Excuse me for a moment. Something just jumped out at me.

Further, Nero committed the crime of reckless endangerment because he was responsible for ensuring that Gray was seat belted into the police van following his arrest.

If I am reading the arguments of the state correctly, as was summarized in the above quote, hasn’t the state in their closing argument in effect exonerated Officer Goodson, the van driver, by saying he wasn’t responsible for insuring the safety of the occupant but that it was only the responsibility of the officer who placed him in the van?

The seatbelt seems to fit negligence. In Wa State all the requirements were met.

You had a duty to do something.
You didn’t do it.
Not doing it resulted in an injury.
That injury is recognized as an injury by the state (not an imaginary injury).

    Ragspierre in reply to Andy. | May 20, 2016 at 12:38 pm

    That’s a fair…but VERY abbreviated…formulation of civil tort law.

    It has nothing to do with criminal law, however.

    Moreover, there is no causal link here. No proof that the Dead Fred resulted from a failure to belt the punk. There is some “expert” speculation, but not in this trial from what we have, and nothing even charged here.

Richard Aubrey | May 20, 2016 at 7:41 am

Andy. WRT the WA state law: Is “duty” spelled out in department policy or statute? Or is it something that ought to be done by a competent individual but not prescribed?
In the Nero case, it appears that the prescription that an individual should be belted is an issue. Was there really department policy on belting? Had it been communicated? Could Nero and his colleagues be expected to have known it?

    rabidfox in reply to Richard Aubrey. | May 20, 2016 at 3:45 pm

    Not only that, Mr. Aubrey, but also the ‘out’ that lets the officer off the hook if it might be dangerous for him to belt a suspect. In fact, wasn’t there testimony to the effect that the two belt system used by Baltimore is inherently dangerous for the officer?

The whole seat belt thing sounds to me like a bureaucratic rule that the ranking officers on the street pretended their guys do and the big wigs at the Office pretended to believe was being done.
Mosby just latched on to it because it happened to be in the new rulebook and she hung her hat on that .
It was not even important enough to go over at roll call .All bureaucracies have safety rules that are given lip service for liability issues,
Freddie wanted to move around and he could have easily slipped out of a seatbelt .

Seat belting prisoners is not a policy in most of the Us , most of Maryland and most of the surrounding counties .
Are all of those Officers guilty of reckless endangerment ?

It appears that the judge is not as amused by the prosecutor’s line of thinking as it initially appeared. I think he allowed the trial to go the way it did simply to placate the angry mobs. He’s asking questions of the ADAs that indicate he’s not buying what they’re selling.

Ruling on a Monday, instead of a “Burn it down!” Friday. Not Guilty

If the judge hearing the case finds them guilty then there are certain to be appeals on apparently many grounds would the judge care should his decision be overturned? Is it all kabuki?

In my unlearned option. Knowing Elected Judge (Really All Judges) hate to make any decision. Decisions are to be avoided at all cost. He will find guilty laying out the case entirely as the prosecutors have alleged. This giving the defense a reasonable chance to appeal.

Of course the State Appeals court is also elected so this will have to go the route of a federal appeal using Terry as the sledge hammer. By the time it works its way up and down the other cases will have been postponed to see the results of the appeals.

But that is just my opinion.