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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[Featured Image Source: Baltimore Sheriffs Office]


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