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Freddie Gray Day #4: Prosecution’s “Rough Ride” Theory Implodes

Freddie Gray Day #4: Prosecution’s “Rough Ride” Theory Implodes

State’s own witness, Detective Boyd, says he has no evidence of “rough ride”

The fourth day of the “Freddie Gray” trial of van driver Officer Caesar Goodson is most notable for the implosion of the state’s “rough ride” theory of the case for lack of evidence.

Prosecutors were compelled to throw this theory into the mix for the first time on the first day of Goodson’s trial after it appeared the foundation had been pulled out from under their preferred “failure to provide timely medical care” theory of the case.

Goodson is charged with depraved-heart murder,manslaughter, second-degree assault, misconduct in office and reckless endangerment in the death of Freddie Gray.

The state has presented three different theories of the case in their prosecution of Freddie Gray, which we’ve covered at length in prior posts, including:

Freddie Gray: Trial of Van Driver Caesar Goodson, Day #3

Freddie Gray: The Relevance of Donte Allen’s Changing Eyewitness Testimony

Theory #1: Murder by Failure to Seatbelt, and Theory #2: Murder by Failure to Provide Medical Care now seem to be out of reach for the prosecution, leaving them desperately clinging to their final theory for why Caesar Goodson should be sentenced to prison for 30 years, Theory #3: Murder by Rough Ride.

The difficulty with this third theory, as with the other two, is that prosecutors do not appear to actually possess any evidence they can introduce in support of their theory.

Officer Caesar Goodson

Officer Caesar Goodson

According to reporting by the Baltimore Sun, the prosecution has to this point submitted into evidence surveillance video showing Goodson driving the van over the center line of the road and making a rolling-stop right-hand turn at a stop sign.  Neither of these acts of driving would generate the abrupt changes in velocity (speed or direction) indicating a malicious “rough ride.”  At worst, Goodson might be cited for traffic violations, but hardly convicted of depraved-heart murder.

In addition, yesterday the State also called as a witness Detective Michael Boyd.  We’ve previously seen mention of Detective Boyd because he was one of two detectives to interview Donte Allen, a co-passenger for the final portion of Gray’s transport in the police van, the very afternoon following Gray’s injury.  I’ll come back to that in a moment.

Detective Boyd’s questioning by prosecutors yesterday was focused on his reconstruction of the route taken by the police van while it was transporting Gray.  This reconstruction was based on city surveillance footage and Boyd’s own recollection of the police investigation (presumably including his contemporaneous interview with Donte Allen).

Curiously, although Boyd was the State’s own witness, prosecutors never asked Boyd to describe the manner in which Goodson was driving the van.

Defense counsel, however, was not so reticent on cross-examination.  As reported by the Baltimore Sun:

Attorney Matthew Fraling asked Boyd whether he saw any evidence that Goodson made an abrupt stop, start or turn while Gray was in the van.

“No, sir,” Boyd said.

Touching back now to Det. Boyd’s (with colleague Det. Poremski) interview with co-passenger Donte Allen on April 12, immediately following the van ride, it is worth recalling the relevant portions of the transcript of that interview:

Det. Poremski: Okay. And your ride over, do you remember, when you were riding there, did you hit any big bumps, potholes? Did you — was it a smooth ride? Was it rough? Was it, you know, any kind of —

Mr. Allen: I was fine.

Det. Boyd: There wasn’t no tossing or turning, no like sudden stops or nothing like that?

Mr. Allen: No.

Det. Boyd: Didn’t speed up, slam on the brakes and slam you, nothing like that?

Mr. Allen: — over the railroad tracks real fast.

Det. Boyd: So it was just a smooth ride?

Mr. Allen: Smooth ride.

Det. Boyd: So nothing? At any point, you didn’t hit your head. You didn’t — a bump or anything like that?

Mr. Allen: Ain’t no reason to.

Det. Boyd: So it’s safe to say, in your opinion, if [Gray] was banging his head, he was doing it of his own accord?

Mr. Allen: Yes sir.

Det. Boyd: Wasn’t nobody force him? It wasn’t like the way the officer was driving or anything like that?

Mr. Allen: No sir.

One must reasonably presume that if prosecutors had more compelling evidence of the alleged “rough ride” they would at this point have no reason to have held it back from the court. It seems, then, that they’ve “shot their wad” on this last theory of the case.

On the basis of this kind of evidence, or rather lack thereof, the Baltimore State’s Attorneys are standing in a criminal court and seeking to have a Baltimore Police Officer with an apparently unblemished record sent to prison for a minimum of 30 years.

Shameful.

–-Andrew, @LawSelfDefense


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Comments

My guess is acquittal

    Gremlin1974 in reply to dmi60ex. | June 15, 2016 at 7:29 pm

    Though this judge is doing a much better job than I expected him to I am gonna put my 2 cents in and say that since he is obviously the prosecution’s best chance for a conviction I am gonna go with Acquittal of all but misconduct in office.

    I am betting the judge convicts on that one charge under the theory that even though there is mountains of evidence that he didn’t know about the seat belt rule, he should have known and that ignorance is no defense, basically. That will of course never survive appeal.

Richard Aubrey | June 15, 2016 at 8:32 am

Decades ago, the fictional lord-and-detective, Peter Wimsey said, “Lord, protect us from the hired advocate.” He’d been speaking to an attorney who was suggesting an underhanded and possibly illegal way of getting out of some kind of trouble. Like many mercenaries, the paycheck covers a multitude of sins. You’d have to be an idiot to believe the state’s case here and so either the prosecutors are true-believing partisans…or they’re idiots. Pick one.

    userpen in reply to Richard Aubrey. | June 15, 2016 at 8:36 am

    Idiots.

    TX-rifraph in reply to Richard Aubrey. | June 15, 2016 at 8:36 am

    “…true-believing partisans…or they’re idiots. Pick one.”

    And what is the difference between the two? Can I pick both?

      userpen in reply to TX-rifraph. | June 15, 2016 at 10:01 am

      No one in their right mind, with all their faculties and an IQ higher than a turnip, could truly believe these lies. In order to believe they would have to be certifiable idiots.

        clintack in reply to userpen. | June 15, 2016 at 10:35 am

        Alas, lots of people in their right mind, with all their faculties, and average or higher IQ can truly believe all kinds of lies, including these.

        A right mind, mental faculties, and intelligence give you the *capability* to process evidence and evaluate lies.

        But there are lots of lies out there — too many to process and evaluate. It takes time and effort.

        A reasonable person who has heard all the evidence presented in the Freddie Gray trials thinks one thing. A reasonable person who has just heard the mass-media accounts of Freddie Gray’s death thinks something else. And most people don’t have the motivation to spend an hour checking into any given media story.

        (Neither do you and I or anyone else. The real trick is to try to calibrate your certainty to how much time and effort you’ve spent looking into something. (And if you figure out how, let me know!) It’s human nature that we’re often far more certain of the things we just assume to be true (like: He was alive and healthy when he got in the van, and he came out with a broken spine while in police custody. Obviously the cops did something to him.), and far more skeptical of the things we’ve got far more reason to believe — because real evidence is always more layered and tentative than the simple stories we paint over less data.)

          userpen in reply to clintack. | June 15, 2016 at 11:52 am

          “…either the prosecutors are true-believing partisans…or they’re idiots.” We’re talking about the prosecutors. They have the facts. If, based on the facts, they believe Goodson is guilty of murder they are idiots. But they find themselves in a bad situation. Either they do what Mosby says or they look for another job. Partisan hypocrites, idiots, or fill in the blank ___________.

        Gremlin1974 in reply to userpen. | June 15, 2016 at 7:42 pm

        It’s actually less a question of intellect and more a question of attitude. Most people are to lazy to be more than sheep these days.

    The Friendly Grizzly in reply to Richard Aubrey. | June 15, 2016 at 2:47 pm

    Or, they want the scalps.

    Matthew Carberry in reply to Richard Aubrey. | June 15, 2016 at 9:52 pm

    As they say at Instapundit, embrace the power of “and.”

I think Mosby planned to obtain plea deals from the cops. She would use the criminal charges to feed her political plans. No plea deals made for work but she still had two dimensions to balance — political and criminal.

With the civil suits, she now has three dimensions. Even a smart person would have great difficulty pulling that off. Consequently, she is displaying desperation on the criminal front as I am sure she is trying to limit her civil and political risk. She can’t pull off a three ring circus. The civil suit created a situation that is analogous to the “three body problem” in physics that is extremely difficult to solve whereas the two body problem is not difficult. She is not smart enough to give up and cut her losses. She continues to demonstrate that she is an arrogant (I am smart, powerful) SJW (applied stupidity) liberal and I will crush my enemies. The cops are paying now. I hope she pays soon.

    Vancomycin in reply to TX-rifraph. | June 15, 2016 at 8:52 am

    I think that’s probably not a bad description of what’s going on. Actually though, the civil suit probably means she can’t give up on the criminal investigation, because if she were to call of the criminal trials, it would *look* like she is doing exactly what the civil suit alleges (malicious prosecution…etc).

    She’s screwed either way.

      Ragspierre in reply to Vancomycin. | June 15, 2016 at 9:13 am

      One essential element of the malicious prosecution tort is that the plaintiff was not convicted.

      She can’t let go of these tigers tails now without giving the officers that element of their cases.

      Wasn’t the $6.4 million show-me-the-money given to the Gray Family a civil suit settlement?

        davod in reply to EOSredux. | June 15, 2016 at 10:38 am

        I don’t believe the family went to court. The city settled before any papers were filed.

        Merlin01 in reply to EOSredux. | June 15, 2016 at 11:58 am

        #BLM<$$$

        Milhouse in reply to EOSredux. | June 15, 2016 at 12:36 pm

        Not that civil suit. We’re talking about the policemen’s civil suit against Mosby for malicious prosecution.

        Gremlin1974 in reply to EOSredux. | June 15, 2016 at 7:45 pm

        Nope, that was to prevent a civil suit, which at this point looks like would have been the cheaper route to let them sue. Same for however much the HOA paid to the parents of St. Trayvon of the Sacred Hoodie.

      RodFC in reply to Vancomycin. | June 15, 2016 at 11:41 am

      I was thinking just the opposite. To continue on with trials if Goodson is acquitted buy the judge exposes mosby to significant risk.

      At this point malice can be debated, but if their strongest case ( which no honest lawyer can deny ) fails, then to continue would strongly bolster the argument for malice.

      What is more, to continue on could expose Mosby to greater punitive damages.

In another era, when honor was held in higher esteem, officers of the court (at least broadly) saw themselves as holding a public trust. Perhaps in that era a policy of prosecutorial immunity made sense.

Not any more. Mosby is the poster child for constraints on immunity.

Has the prosecution found any “street cops” to testify that they actually saw amended Policy 1114 before this incident?

What is Judge Williams trying to say (or not say) when he writes that amended Policy 1114 “may not have gone into effect until after the incident in question”?

    Valerie in reply to archon41. | June 15, 2016 at 11:25 am

    That the prosecution has failed to meet its burden to show that the rule had been implemented.

      Gremlin1974 in reply to Valerie. | June 15, 2016 at 7:50 pm

      Or even effectively communicated, it certainly had not been “trained” on.

      Remember the relevant seat belt guideline was buried in 14 pages of policy changes that the police department can’t even say was fully distributed.

      From working in the medical field for years I can tell you I have seen more than my fair share of those kids of documents and can tell you they rarely get read in any real detail, especially when I have 2 more patients than I am supposed to and my aid called in sick or whatever craziness is going on that shift.

The two most compelling State arguments were the rough ride and failure to obtain timely medical attention. Those were the two real questions the cops had to face, and they were reasonable questions.

Not any more. Case demolished.

    Milhouse in reply to Mannie. | June 15, 2016 at 12:42 pm

    The “rough ride” was never a reasonable question, because there was never any foundation for it. It was nothing but a wild random speculation by some reporter. It was no more a fair question to ask whether Goodson gave Grey a “rough ride” than it is to ask whether Joe Biden murdered his first wife. It’s possible — such things have been known to happen — but there’s no reason to suppose he did so.

      Gremlin1974 in reply to Milhouse. | June 15, 2016 at 7:51 pm

      Well if you look at Mosbey’s case it does seem to be based more on sensational news reports than anything approaching facts.

      Mannie in reply to Milhouse. | June 16, 2016 at 10:10 am

      There is particularly no reason to do so, now that the legs have been cut from under that argument.

Common Sense | June 15, 2016 at 9:30 am

Slow motion destruction of the States non-case!
It seems that the States Attorney is incompetent.
If they can not convict Officer Caesar Goodson this
is over.

The prosecution has Mr. Goodson dead to rights (as Mr. Branca and another poster pointed out in an earlier post) on at least two charges: crossing the center line; and failure to come to a complete stop at a stop sign.

    JPL17 in reply to sequester. | June 15, 2016 at 10:12 am

    Yes, but unfortunately for the prosecution, “crossing center line” and “failure to come to complete stop at stop sign” aren’t lesser included offenses of homicide. The jury therefore won’t be instructed on those offenses, and the prosecution will be left standing naked.

      murkyv in reply to JPL17. | June 15, 2016 at 10:29 am

      Except for one thing. Goodsons trial has no jury.

        JPL17 in reply to murkyv. | June 15, 2016 at 12:05 pm

        Of course you’re factually correct, but my legal point remains valid, because in a bench trial, the judge serves as BOTH judge AND jury. I.e., in his role as jury, the judge will NOT have the power to return a verdict on “crossing center line” or “failure to come to complete stop at stop sign”, since those charges aren’t lesser included offenses of homicide. That result doesn’t change simply because it’s a bench trial instead of a jury trial.

      Murder With Intent To Commit Minor Traffic Offenses?

    Milhouse in reply to sequester. | June 15, 2016 at 12:46 pm

    Aren’t police, while driving official vehicles in the course of their job, immune from those laws?

      sequester in reply to Milhouse. | June 15, 2016 at 12:55 pm

      The exact technical details vary by State. But as a general rule police must follow traffic laws unless responding to an emergency (often with lights and/or sirens).

        Gremlin1974 in reply to sequester. | June 15, 2016 at 7:55 pm

        And even in the case of emergencies they may still be very limited in what traffic laws they are allowed to ignore. Like here Police, fire, and ambulance can only break the speed limit if running code 3, which means full lights and sirens and even then they are only allowed to go 15 mph over the posted. Of course cops who are in a chase situation is a different story.

It seems, at this point, that the prosecution has to be totally embarrassed to be standing up there and making these unfounded and unsupported accusations. They have to KNOW that they have bupkiss.

“Your honor, we’ve got nuthin’. Please rule quickly so the embarrassment will be over.”

    Elliott in reply to Twanger. | June 15, 2016 at 11:08 am

    None of the staff in this prosecutor’s office has shown any kind of shame. Not the attorney’s, investigative staff, probably not even clerks or paralegals. It would appear to be a condition of employment. The fish rots from the head.

    Gremlin1974 in reply to Twanger. | June 15, 2016 at 7:57 pm

    Honestly, I wish I could be there for this closing argument from the prosecution because it should be very entertaining.

What are the odds that the defense doesn’t have to put on a case?

Is that something that really happens, or just in TV dramas?

    Valerie in reply to clintack. | June 15, 2016 at 11:31 am

    This is something that really happens, in real cases where the prosecution craters, sometimes due to the death of a key witness, sometimes due to a new witness, evidence, or confession. It is not always the prosecution’s fault.

    This case is a show trial, brought by the prosecution in an atmosphere of public fury. For that reason, and because the defense is already there and most of the expenses and inconvenience to the defendants has been incurred, I would not be surprised if the judge required the defense to lay out its evidence in full.

      The Friendly Grizzly in reply to Valerie. | June 15, 2016 at 2:56 pm

      I’m not a lawyer, so forgive what may sound like an ignorant question.

      If the defense was to present no arguments, that is, effective says “the defense rests” before doing anything, and the judge comes back with a verdict of innocent/not guilty, may the prosecution then appeal the case BECAUSE of this? That is, they don’t get a chance to try to refute (or trip up) the testimony of the defense witnesses?

        No, they don’t, for two reasons:

        1. The prosecution’s duty is to prove the defendant’s guilt; the defendant doesn’t have to prove anything. The only purpose of a defense case is to rebut whatever case the prosecution presented; if the prosecution didn’t make a case in the first place then there’s nothing to rebut.

        2. In any event, an acquittal can never be appealed. Double jeopardy.

      Gremlin1974 in reply to Valerie. | June 15, 2016 at 8:01 pm

      He will have the defense present, for one simple reason, it will give him the threads he needs to weave his acquittal. While any casual observer can see the flaws in the prosecution’s case he needs the defense to lay out the arguments for him and to provide refuting testimony.

    Ragspierre in reply to clintack. | June 15, 2016 at 11:45 am

    Given the number of trials across the U.S., and the really VAST variation in the quality of the criminal defense bar, sure it happens. I’ve sat in on some criminal trials just as an observer, and been appalled at how crappy some defense attorneys are.

    Sometimes, as a trial strategy, it can send a powerful message to a jury. But it is a very high-risk play.

    In this case, I would put on all the defense I had developed because the stakes are so high. There’s no harm in spiking the ball in this kind of scenario.

    gulfbreeze in reply to clintack. | June 16, 2016 at 12:38 pm

    “What are the odds that the defense doesn’t have to put on a case?

    Is that something that really happens, or just in TV dramas?”

    Much more common than the defense choosing not to present their case is after the prosecution rests its case, the defense making a motion to dismiss the case because the evidence presented did not prove the defendant guilty beyond a reasonable doubt. I’ve never read a statistic detailing how often this is successful, but while I have rarely seen it granted, it is successful when warranted, even in federal criminal cases.

    My best memory of the success of such a motion was in a federal criminal case where an Exec VP of a firm pled guilty to various crimes in exchange for testifying against the CEO (this was a case where the feds didn’t have much of a case for fraud, but had multiple charges of IRS violations and postal service use by the CEO in the commission of the acts). A third employee was charged with perjury as he had given three different versions of his involvement with specific financial dealings with the Exec VP to federal investigators (again, mostly IRS and US Postal Service).

    Unfortunately for the government, the original witness to the lying employee’s fibs was the Exec VP that had taken the plea deal (and whose testimony had convicted the CEO who got about a decade of hard time in a medium security fed prison and massive fines).

    The last trial was the perjury case, and after the CEO has already been sentenced perhaps most defendants would have folded and pressed for a plea agreement on a lesser charge. But the liar (and to most court watchers he seemed to have definitely lied his butt off) rolled the dice, and went to trial. After the prosecution rested, defense counsel made the somewhat standard motion to dismiss because the evidence presented did not prove the defendant guilty beyond a reasonable doubt.

    To the surprise of most everyone in the court (especially the fed prosecutors), the federal judge immediately granted the motion.

    So lessons learned were it never hurts to make the motion to dismiss, and if your doing shady stuff, don’t use the postal service and pay taxes on your gains (see Al Capone, et al).

Richard Aubrey | June 15, 2016 at 10:42 am

Clintack.
Good points, about the rest of us. But I was referring to the prosecutors. They’re true-believing partisans (BAMN), or they’re idiots. They’re in a position to know what they’re peddling.
Protect us from the hired advocate. But, to give the devil his due, meaning the prosecutors, if they’re bought, they stay bought. “bought” meaning they can’t see themselves getting another job and so they have to ride this one no matter where it takes them.

    clintack in reply to Richard Aubrey. | June 15, 2016 at 11:49 am

    Oh. Right. *blush*

    Yeah. I’m sure the prosecutors know better. And, in my more charitable moments, I suspect they have “good intentions” too. It’s possible that Marilyn Mosby is primarily motivated by ambition and greed — but it’s also possible that she thinks an aggressive prosecution will reduce the chances of another riot, or that the Baltimore PD is corrupt and racist and that this is the push-back that will make thousands of police officers behave better. Or something.

    Of course, that’s an abuse of the public trust and the power she’s been given. And if it can be proven, it’s probably criminal. But it’s also really common — the greater good has justified far worse than venal self-interest ever could.

JimMtnViewCaUSA | June 15, 2016 at 11:20 am

The phrase “rush to judgment” comes to mind…

Char Char Binks | June 15, 2016 at 11:59 am

Goodson was as guilty as Sandra Bland for that rolling stop.

If Goodson is found not guilty, wouldn’t the judge effectively be forced to shut down the rest of the trials? If the defense made pretrial motions to dismiss, wouldn’t the judge have to grant them?

    Gremlin1974 in reply to RodFC. | June 15, 2016 at 8:09 pm

    Why? Just because this one wasn’t guilty maybe the next one will be. Remember one case technically has nothing to do with the others.

And now it transpires that Mosby was sitting on an admission by her medical examiner to a Detective Taylor that this incident was an “accident.”

Breaking! Breaking!
Turns out that “homework” Williams ordered on the prosecution may pay off for the defense. Supposedly there are notes from a detective which say that Dr. Allan told him that she considered ruling the death an accident. Contradicting her testiomony.

Can’t believe that someone hasn’t reeled Mosby in for the embarrassment she is causing

    Gremlin1974 in reply to stl. | June 15, 2016 at 8:11 pm

    Remember with these folks it isn’t about right and wrong it’s always about moving a political idea forward.

If I were unfortunate enough to live in Baltimore, I would have no problem supporting Judge Williams for higher elected office.

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