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Freddie Gray: Sheriff Who Swore Charges Against Officers Says He Never Investigated

Freddie Gray: Sheriff Who Swore Charges Against Officers Says He Never Investigated

Is It Just Me, Or Does It Smell Like Perjury in Here?

Well, well, well.  It looks like the civil suits filed against State’s Attorney Marilyn Mosby (who brought the prosecution againt the officers) and Baltimore Assistant Sheriff Cogen (who swore out the charges against the officers) is beginning to bear strategic fruit, just as I’d predicted was their true immediate purpose.

Today the Baltimore Sun reports that Cogen now claims in an affidavit that he had “no involvement in the investigation whatsoever.” Instead, he was simply presented with purported evidence by the prosecution and told what the prosecutors had already themselves determined to be the facts of the case.  Cogen affidavit states:

I was also presented with a narrative that formed the basis of the application for statement of charges that I completed by the State’s Attorney’s Office.  The facts, information and legal conclusions contained within … as well as the charges lodged against plaintiff came entirely from members of the State’s Attorney’s Office.

Normally, prosecutors such as Mosby and law enforcement such as Cogen have legal immunity from civil suit for conduct undertaken in the performance of their offices.  Such immunity does not, however, apply where such personnel commit perjury or otherwise act with actual malice.  The officers suing Mosby and Cogen are necessarily claiming exactly such circumstances in order to avoid dismissal of their suit on immunity grounds.

Today’s affidavit from Cogen would appear to be sacrificing the State’s Attorney’s office generally, and Mosby in particular, in an effort to preserve his own immunity, by claiming that he reasonably relied upon the prosecutors’ representations, and that his role in the charges against the officers was sufficient minuscule as to excuse him from any liability that might exist. In his affidavit Cogen states:

My involvement was limited to a review of the fruits of the investigations done by the Police Department and State’s Attorney’s Office. [I was shown a chart identifying] the charges to be brought, the evidence supporting those charges, and the related legal analysis [explained by Chief Deputy State’s Attorney Schatzow and prosecutor Bledsoe].

Cogen goes on to explain that he was also given a narrative that formed the basis of the information entered on the warrant.

Cogen is being defended by attorneys from city solicitor’s office, and they are arguing that Cogen acted reasonably in deferring to the the representations and legal judgments of the prosecutors’ office.

As one example of such reasonable reliance Cogen’s attorney’s cite one of the early (but since memory-holed) claims of prosecutors was the knife in Freddie Gray’s possession that was the basis of his arrest was in fact legal under Maryland state law.  In fact, however, the knife is illegal under Baltimore City Code, and it is under that code that Gray was charged.  The Baltimore Sun reports:

Cogen says Deputy State’s Attorney Antonio Gioia told him that the knife recovered from Gray was legal — a contention prosecutors have since backed off from. Of the legality of the knife, Cogen’s attorneys wrote: “The knife was lawful under Maryland state law and he, as a non-lawyer and a sheriff who does not engage in routine enforcement of City ordinance violations, relied on the considered judgment and determination of a deputy prosecutor as to the knife’s legality.”

“This is the very situation for which such a strong preference for qualified immunity for law enforcement officers was created,” assistant solicitors Jason R. Foltin and Sara E. Gross wrote.

“It was eminently justifiable for Major Cogen to conclude that the information he obtained from the Office of the State’s Attorney as a result of its independent investigation was accurate and complete, and that the legal conclusions of prosecutors were proper,” they said.

This is, however, going to be a difficult argument for Cogen to make.  As noted by Mike McDaniel over at his blog Stately McDaniel Manor (who has been doing consistently excellent work covering the “Freddie Gray” trials), by signing the statement of charges against the six officers Cogen was attesting that:

I solemnly affirm under the penalties of perjury that the contents of the Application are true to the best of my knowledge, information and belief.

Cogen sworn charges

Now, however, Cogen says that he was part of no investigation and in fact possessed no personal knowledge, information, or reasonably held belief of the truth of the charges.  Perjury, if the courts determine this to be, would strip Cogen of immunity in the suits against him.

As Mike McDaniel notes, the disclosure that the prosecutor’s “parallel investigation” was conducted not by the Baltimore Sheriffs Office, as prosecutors had claimed, but by the prosecutors themselves re-opens the door to the prosecutors being compelled to testify at witnesses in the criminal trials.

Normally prosecutors may not be called as witnesses because they typically have had no personal participation in the investigation that generated the evidence to be introduced at trial; instead, the police investigators themselves are called to testify.  If the prosecutors were themselves also the investigators, as seems now to be the case in these Freddie Gray trials, the bar to calling them as witnesses would no longer seem applicable.

Mike McDaniel has additional insights on this news that I encourage you to take a look at over at his blog, particularly the peculiarity of a senior police officer (Cogen is a Major) swearing out charges.

So, the Mosby Six-Ring Circus continues on its merry way.

Tomorrow around 10AM we expect to hear Judge Williams verdict in the trial of van driver Officer Caesar Goodson, who is charged (based on the sworn statement of Cogen) with murder, multiple counts of manslaughter, second-degree assault, misconduct in office and reckless endangerment. If convicted Officer Goodson, an officer with an unblemised record, faces up to 30 years in prison.

See you all tomorrow morning, folks.

–-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 books, live seminars & online training (both accredited for CLE), public speaking engagements, and individualized legal consultation.
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Comments

What kind of dumbazz sheriff would sign out charges on a case he knew nothing about?

As I observed on the other thread…

Oh! CHIT…!!!

Civil suit manna from heaven!

Richard Aubrey | June 22, 2016 at 7:05 pm

Cogen did one of two things:
He did something extra special under some kind of pressure, if only impassioned pleading, that he rarely if ever did.
He, and by extension other guys in roughly similar positions, do this all the time and so he expect to get away with it. In fact, he may have thought there was nothing to get away with. Routine.
Could other cases be retried?

    Gremlin1974 in reply to Richard Aubrey. | June 22, 2016 at 8:10 pm

    It would seem to me that at the very least it could open up the Sheriff’s department to investigation into their procedures and policies.

“I solemnly affirm under the penalties of perjury that the contents of the Application are true to the best of my knowledge, information and belief.”

That’s a VERY interesting statement. In Texas, that equivocal a declaration will get a civil affidavit basically thrown out as useful evidence. To be useful a affiant has to state definitively that they have personal knowledge of the facts they relate, and they are true and correct.

“To the best of my knowledge” is considered weasel-wording to avoid perjury.

    Gremlin1974 in reply to Ragspierre. | June 22, 2016 at 8:05 pm

    Democrat run City and State Rags, weasel tactics is how they stay out of jail.

    rabidfox in reply to Ragspierre. | June 22, 2016 at 8:18 pm

    Thank you Rags – that was my first impression also. And why did they have to go to the Sheriff’s office anyway? Did they think that no one within the Baltimore PD would arrest these officers?

      Ragspierre in reply to rabidfox. | June 22, 2016 at 8:51 pm

      As to your latter questions, I dunno. Could be a procedural thing. Andrew or his buddy McDaniel might be able to answer those. I know in many places, police agencies are considered totally competent to investigate and charge LEO wrongdoing, but that’s sometimes what the Texas Rangers are for, too.

      Char Char Binks in reply to rabidfox. | June 23, 2016 at 12:04 pm

      Maybe partly because Baltimore has a city sheriff’s department, unlike the usual county arrangement, and thus under the control of the corrupt mayor, and chosen to give the illusion of impartiality.

    legalbeagle in reply to Ragspierre. | June 23, 2016 at 7:57 am

    To the best of my knowledge” is considered weasel-wording to avoid perjury

    I heartily agree. I think a criminal perjury charge would be difficult to sustain given the wording of the affidavit. But Cogan’s later affidavit does point to the possibility of statutory violation of the defendants rights.

    The fact that a police officer, not a prosecutor, was required to sign the probable cause affidavit indicates that a police investigation was necessary to bring charges in that manner. Cogan, having failed to perform a diligent police investigation may have knowingly violated a statutory or procedural requirement.

    However, Cogan has now admitted to failing to perform his duties with the diligence of a reasonable police officer. I am not sure his claim of qualified immunity will stand.

      Char Char Binks in reply to legalbeagle. | June 23, 2016 at 12:06 pm

      Does “to the best of my knowledge” cover him if, as it turned out, he had no knowledge?

        Milhouse in reply to Char Char Binks. | June 23, 2016 at 2:35 pm

        He had some knowledge. He knew that two respectable attorneys, officers of the court, told him these things were true. That’s enough to form a reasonable basis for his belief that they were true.

          Ragspierre in reply to Milhouse. | June 23, 2016 at 3:22 pm

          But you don’t “swear and affirm” that you “believe” something.

          Those are self-contradictory legal nullites. So what? You swear you believe? BFD about what you believe.

          It is enough to make a good-faith statement on “knowledge and belief” in a pleading. According to the rules, that statement is to be treated by the court as true until shown otherwise. That’s why we do discovery, and why the rules governing summary judgment default to treating the allegations and evidence of the non-movant as true.

          It’s quite another thing to swear and affirm something is true on personal knowledge. This is why a properly laid out affidavit is considered good summary judgment evidence. It is powerful enough in many cases to overcome the presumption that the non-movant’s pleadings have to be taken as true. It also exposes the affiant to sanctions or perjury.

It sounds to me like Cogen just admitted he was negligent in his actions. Does negligence open up the risk of civil liability for Cogen?

    Ragspierre in reply to TX-rifraph. | June 22, 2016 at 8:17 pm

    I’d say you can’t be negligently “malicious”.

    OTOH, you can negligently deprive someone of their rights to privacy and due process, I do believe. There’s at least an argument there.

      divemedic in reply to Ragspierre. | June 23, 2016 at 9:15 am

      Wouldn’t this display a implies a reckless disregard for the consequences, which is pretty much the same thing? In other words, as a cop his job is to get convictions, facts be damned?

Give me one example of the Sheriff of any county personally investigating a crime in order to be truthful about the charging documents.

Does not happen. The sheriff relied upon his investigators, and/or the prosecutors statement of the case in order to sign the charging documents.

Look at it this way: In a Grand Jury proceeding, just about any evidence, including hearsay, is allowed to be heard by the jurors. I don’t see anything different in this case, as the Sheriff is acting as the Grand Jury.

Having said this, the loss of immunity may not apply to Sheriff Cogen, but damned if it does not look like ‘somebody’ in the prosecutors office is showing some ‘actual malice’.

    The difference here is that the Sheriff is NOT relying upon his investigators. His investigators did NOT investigate, and therefore naturally presented him with no evidence whatever.

    At the same time, relying on the prosecutors’ representations, on the other hand, strikes me as bizarre because the prosecutors are not themselves tasked with investigating–indeed, if they engage in investigative activities they become subject to being called as witnesses to testify at trial. It is for this reason that the standard practice is that law enforcement investigates (and can be called as witnesses) and the prosecutors prosecute (and cannot be called as witnesses).

    Also, while a Grand Jury may bring an indictment based even on hearsay, it’s at least theoretically possible that the hearsay is in fact true. Here the charges were sworn based on a parallel investigation that NEVER HAPPENED. There is NO possibility that anything “discovered” by an investigation that never happened could be “true”–it can’t even exist.

    –Andrew

      “At the same time, relying on the prosecutors’ representations, on the other hand, strikes me as bizarre because the prosecutors are not themselves tasked with investigating–indeed, if they engage in investigative activities they become subject to being called as witnesses to testify at trial.

      It is for this reason that the standard practice is that law enforcement investigates (and can be called as witnesses) and the prosecutors prosecute (and cannot be called as witnesses).”

      Yes those in the prosecutors office should expect a heavy investigation of themselves and to be called to testify in great detail.

      “I see” said the blind man . . .

      🙂

    Ragspierre in reply to Redneck Law. | June 22, 2016 at 8:11 pm

    I’ll add on more salient observation (which could be wrong, btw)…

    We were told that Mosby AND the sheriff conducted the “investigation”.

    Apparently, not so much.

      Gremlin1974 in reply to Ragspierre. | June 22, 2016 at 8:24 pm

      “Once alerted about this incident on April 13, investigators from my police integrity unit were deployed to investigate the circumstances surrounding Mr. Gray’s apprehension. Over the course of our independent investigation, in the untimely death of Mr. Gray, my team worked around the clock; 12 and 14 hour days to canvas and interview dozens of witnesses; view numerous hours of video footage; repeatedly reviewed and listened to hours of police video tape statements; surveyed the route, reviewed voluminous medical records; and we leveraged the information made available by the police department, the community and family of Mr. Gray.”

      That was her statement the day she announced the charges.

      Strangely, just before that she said that; “It is my job to examine and investigate the evidence of each case and apply those facts to the elements of a crime, in order to make a determination as to whether individuals should be prosecuted.”

      As Andrew has pointed out it isn’t her job to investigate.

      “I’d like to thank Baltimore City Sheriff’s Department in assisting with us as an independent law enforcement agency with police powers.”

      LOL, yea apparently to sign 6 pieces of paper and do nothing else.

      http://time.com/3843870/marilyn-mosby-transcript-freddie-gray/

Gremlin1974 | June 22, 2016 at 8:13 pm

Does anyone else find it interesting that not only did they get the 2nd in command of the Sheriff’s office to swear out the charges, but that they also apparently chose the only caucasian member of the command staff to do so.

    dunce1239 in reply to Gremlin1974. | June 22, 2016 at 9:06 pm

    The only and last member of the command staff. Hello retirement to another state. You must serve him to get him in court, his check will be auto deposit out of state.

      Ragspierre in reply to dunce1239. | June 22, 2016 at 9:23 pm

      I’d bet he has already been served with citation of the civil suits.

      JackRussellTerrierist in reply to dunce1239. | June 23, 2016 at 1:32 am

      It seems highly unlikely that Cogen would pop off such an affidavit if he hadn’t already been served.

      I think Cogen is pretty well covered by the I&B wording. The civil attorneys who filed suit are just squeezing him. I think he’ll get immunity and the county alone will pay. Not so for Mosby and perhaps a couple others. Mosby really cooked her own goose.

      Mosby used and abused Cogen for a “robo” type I&B signing. Now Cogen’s doing his best to throw Mosby under the bus.

      I don’t think Cogen is as cogent as he ought to be, given his ethnicity in that environment. Idiot.

Cogen has made three serious mistakes in my opinion:
1) Accepting Mosby’s claims at face value. The charges themselves would have made me stop & dig into the details. These cops were not charged with petty theft.
2) Cogen’s statements tell me that he lacks competence or integrity. I senior officer should never make an error like he did. I think his high rank, at the very least, is over.
3) Did the city attorneys just have Cogen throw himself under the bus to help protect the city? If Cogen had a personal attorney, would he have said what he just said? Would he have been better off to negotiate with the cops’ civil attorneys for something?

I might be missing something (or lots of stuff), but I think Cogen messed up again.

I understand that the Prosecution’s position is that arrest without probable cause is assault. Can they be sued for conspiracy to assault the 6 police officers?

Isn’t “upon information and belief” simply Lawyer for “my client told me”?

    Ragspierre in reply to Milhouse. | June 22, 2016 at 11:49 pm

    Which a fine standard for pleadings in a civil matter, up until you know one way or the other.

    It should not be in a criminal matter.

“Perjury” is just something for rubes to believe, not for a lawyer or a government agent to actually pay a price for.

I just checked with a lawyer who confirmed what I thought:
===== begin relayed answer =====

Under what circumstances can a lawyer be charged with perjury if he asserts a falsehood on his knowledge information and belief?

“Perjury”? Never. Since by saying “upon information and belief” he’s saying that he doesn’t actually know if it is true.

However, there must be a good faith basis to believe the allegation to be true. A plausible fact which is supported by a document or the statement of a witness (including a party) is sufficient.

See rule 11(b).

So here Cogen was told by the State’s Attorney’s office that the facts were true, and he affirmed them “upon information and belief”, so he would seem to be in the clear.

And this is what they burned and looted an American city over …. I am at the point where I honestly believe all democrat/liberal / progressives are morally bankrupt

Oh question if I may … If the judge returns a not guilty verdict … What then …. Will the state continue in its quest to meet definition of insanity as stated here …* Doing the same thing over and over and expecting different results * or is that the definition of stupid …. Hmmmm maybe its the definition of insanely stupid But in any case what then

The scumbag should be forced to wear that undersizeed hat the rest of his life – even in the shower.

Gremlin1974 | June 23, 2016 at 5:26 am

“Cogen said he made ‘few changes,’ and Schatzow accompanied him to a District Court Commissioner’s office and made a ‘last minute change to the application involving the medical examiner’s description of the injury sustained by Freddie Gray.’ The medical examiner’s office did not make a final ruling on Gray’s cause and manner of death until April 30.”

Now here is an interesting tidbit that I took from Mr. McDaniel’s article. Its long been rumored that the ME originally concluded that Grey’s injury was accidental but changed it either at the request of or under pressure from Mosby’s office. I wonder what “change” to the “medical examiner’s description of the injury sustained” had to be made?

The whole rough ride theory has pretty much fallen apart and along with that any chance for a murder conviction. However, do you see Goodson at risk on a lesser charge? Specifically, I’m thinking about involuntary manslaughter (criminal negligence).
Basically, the argument would be…
-Not belting a cuffed and shackled suspect created a substantial and unjustifiable risk.
-A reasonable person would have belted him and not belting him represents a gross deviation from what we’d expect from a reasonable person.
Unlike the murder charge which is clearly unsubstantiated, this is more a matter of “degree”.
I still don’t have this judge figured out. Throughout most of the case, he has shown a bias toward the prosecution. Lately, he seems to be getting tired of their antics. Is he an SJW looking to put a cop away or does he see these cases as weak and trying to leave no question that that prosecutors were given every opportunity to make their case?

You know what they say … when rats start jumping ship …

From the Baltimore City Sheriff’s Command Staff web page:

“Major Cogen has completed a professional fellowship with the Police Foundation in Washington D.C., Institute of Integrity, Leadership and Professionalism in Policing.”

How ironic.

Normally I’d say no perjury charges, maybe just a stern talking to by the judge.

However, it’s striking that the prosecutors in the Nero case argued that Nero didn’t even have the right to join a hot pursuit chase in response to a call for assistance from an officer without performing his own independent investigation into probable cause. Under an analogous standard, I think the Sheriff has more trouble.

Just in: The judge in the Freddie Gray case has issued a Not Guilty finding for the top charge for Ofc Nero

Aaand … another acquittal.

Do you like my hat sitting so square? Barney Fife is my cousin, i have a bullet in my pocket.Sometimes i just go crazy and wear a lamp shade.

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