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Freddie Gray: Bench Trial of Lt. Brian Rice to Begin Thursday

Freddie Gray: Bench Trial of Lt. Brian Rice to Begin Thursday

Prospect of conviction seems vanishingly small, but trial continues nonetheless

The courts have scheduled the next trial in State Attorney’s apparently pathological persecution of innocent police officers charged in the death of community drug-dealer Freddie Gray on Thursday.  This time the victim is Baltimore Police Department Lieutenant Brian Rice, the most senior of the six officers charged in Gray’s death. They have charged Rice is with involuntary manslaughter, second-degree assault, two counts of misconduct in office, and reckless endangerment. He is free on $350,000 bail.  Like every other officer charged in the case, Rice has pleaded not guilty.

To date, the state has unsuccessfully tried three of the six officers in Gray’s death. The first, Officer William Porter, ended in a hung jury, and scheduled to be retried. The second and third, of Officer Edward Nero and van driver Officer Caesar Goodson, were both bench trials and in both cases trial judge Barry Williams acquitted the officers of all charges. The Baltimore Sun reports that this morning Lt. Rice notified the court that he also elected a bench trial.

The prosecution in these trials has been characterized by a seemingly random interchange of variable theories of the case, none of which appear supported by actual evidence. The prosecution has also repeatedly failed to meet it’s discovery obligations, and has already been substantively sanctioned by Judge Williams for their repeated failure to share exculpatory and other evidence in a timely manner. These lapses include the failure to disclose evidence indicating that Gray’s death was initially believed accidental by the medical examiner and not a homicide.

Their failure to disclose evidence repeated again this morning when the prosecution had failed until last Tuesday to provide the defense with thousands of pages of Lt. Rice’s training that they intended to introduce as evidence. Judge Williams responded by excluding those training documents from evidence, a sanction which Deputy Chief State’s Attorney Schatzow appeared to shrug off, as reported by the Baltimore Sun–their past efforts to get similar training claims into evidence faltered because the trainers who were testifying were themselves uncertain what exactly had been taught and whether the officers on trial had actually attended. As the Sun reported today:

Schatzow shrugged, and said prosecutors weren’t sure if they could even prove that Rice attended the training or that it was conducted according to the curriculum. He cited the testimony of a police trainer and defense withess [sic] in the Goodson trial, whose testimony prosecutors successfully had stricken because she couldn’t say for sure whether she had trained Goodson.

It was Lt. Rice who first observed Freddie Gray flee from the scene of increased police drug enforcement in the high crime neighborhood in Baltimore’s 7th District, behavior that justified officers in pursing and stopping Gray. Observing Gray’s unprompted flight at the sight of police, Lt. Rice called for the assistance of other nearby officers to stop Gray. Gray would be found with a knife illegal under Baltimore City Code and arrested. Officer Garrett Miller, who would make the actual arrest of Gray, came to Rice’s aid. The courts still need to schedule Miller for trial. The other was Edward Nero, who had only an ancillary role in Gray’s arrest and transport in the van. As noted above, Nero has already been acquitted of all charges by Judge Williams.

The prosecution has already conceded that Gray’s stop and arrest were “probably” legal, and neither the stop nor arrest has been an issue in any of the preceding trials.  (It is notable, but now rarely reported, that the calls for increased drug enforcement in this particular community were initiated by State’s Attorney Marilyn Mosby–who is leading the prosecutions of these officers–at the prompting of her  husband, Baltimore 7th District City Councilman Nick Mosby.)

The state has essentially presented three theories of the case for the guilt of the six charged officers.  These are: Theory #1: Murder by Failure to Seatbelt, Theory #2: Murder by Failure to Provide Medical Care, Theory #3: Murder by Rough Ride.  It is unclear which of these the state believes could be applicable to Lt. Rice.

To take them in reverse numerical order, Theory #3: Murder by Rough Ride is irrelevant to Rice, because it was Goodson (already acquitted) who was driving the van.

Theory #2: Murder by Failure to Provide Medical Care would similarly seem to be irrelevant to Rice, because the state’s own medical examiner has testified that Gray’s injury did not occur until after the second stop of the police van, a point by which Rice had ceased interacting with Gray.

Theory #1: Murder by Failure to Seatbelt also seems impossibly difficult to pin on Rice, given that if any officer had primary responsibility for seat belting suspects in the van it would be van driver Caesar Goodson, who was acquitted by Judge Williams of precisely this allegation only days ago.

Nevertheless, this morning Judge Williams again rejected a defense motion to dismiss the charges against Lt. Rice, as he has similarly dismissed similar motions by each of the officers, and Rice’s trial is now scheduled to begin with opening statements on Thursday.

OK folks, that’s it for now.  Breaking news as it occurs, as per SOP.

–-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.
“Law of Self Defense, 3rd Ed.” /Seminars / Instructor Program / Twitter /Facebook / Youtube

[Featured image: Baltimore Sun]


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Humphrey's Executor | July 5, 2016 at 7:07 pm

Woody Allen said it best: “This trial is a travesty. It’s a travesty of a mockery of a sham of a mockery of a travesty of two mockeries of a sham.”

Unless they have proof of intent to kill him, no reasonable prosecutor would bring charges. Even if they think it was extreme carelessness, that’s okay.

    JackRussellTerrierist in reply to malclave. | July 5, 2016 at 7:38 pm

    Well said. The contrast between letting Hillary, definitely a felon, walk while these 6 are prosecuted for a crime that did not occur, is colossally striking…and frightening.

    I despise 90% of the government. Make that “hate”, not just despise.

    gospace in reply to malclave. | July 5, 2016 at 10:41 pm

    First thought that flashed through my head tonight perusing the headline. But you were here first with the comment. Good job!

“To date, the state has charged three of the six officers in Gray’s death.”

I suggest they have “tried” (and unsuccessfully) three officers. They’ve charged all six.

AND, it’s about time they let this crap go…

I’m not a lawyer, but I’m still puzzled on how did the charges manage to survive a motion to dismiss?

    JackRussellTerrierist in reply to georgfelis. | July 5, 2016 at 7:40 pm

    It’s called, “Black power.”

      So effectively he’s being prosecuted for “Being in the general vicinity of what we say is a crime even though we can’t say exactly what he did or who committed the crime.”

      A Guilty Bystander.

    Dr P in reply to georgfelis. | July 6, 2016 at 7:19 am

    Perhaps the judge is making a statement to the prosecution – you made the charge, now prove it or be shown very publicly to be the fool that you are.

      AFSarge in reply to Dr P. | July 6, 2016 at 12:10 pm

      Not knowing the law, but is the reason to deny the motion to dismiss a way to keep the officers from being charged again, under double jeopardy? Isn’t it true that if acquitted or not guilty the prosecution can’t bring up charges again? Just thinking out loud.


    The Friendly Grizzly in reply to georgfelis. | July 7, 2016 at 10:24 am

    Had these men been from “good families”, or were “pillars of the community”, the charges would have either been dismissed or never brought in the first place.

    Translation of the above-quoted phrases: wealthy and/or connected.

JackRussellTerrierist | July 5, 2016 at 7:30 pm

Best of luck to Lt. Rice.

I don’t know why, but I have this weird feeling that Rice is the one Williams will hang out to dry. There’s no basis for these charges, yet somehow it feels like he will be the scapegoat.

    Ah yes, the white guy.

      Char Char Binks in reply to rabidfox. | July 5, 2016 at 8:50 pm

      Then what happened with Nero?

        phiremin in reply to Char Char Binks. | July 5, 2016 at 9:33 pm

        The prosecution couldn’t even prove Nero made contact with Gray. It would have been impossible to convict him with a straight face.
        But the more I follow the case, the more I think Williams is getting fed up with the prosecution. However, I think he is going for transparency and would rather let the case play out even if the outcome is almost inevitable.

          Char Char Binks in reply to phiremin. | July 5, 2016 at 9:55 pm

          It will be just as impossible to prove a crime with Rice, or any of the others. Williams shouldn’t be letting these cases go ahead, but at least he has ruled fairly and correctly in the the trials so far.

          Gremlin1974 in reply to phiremin. | July 6, 2016 at 4:21 pm

          I honestly have come to the conclusion that Williams is letting the trials proceed for a couple of reasons;

          1) By letting them proceed no one can say that he denied Freddie Gray justice.

          2) By letting them proceed he is able to give rational legal reasons why the officers were acquitted and by doing so covers the officers.

          3) Every time he acquits on of these officer and provides reasonable explanations as to why, it is a close has he can come to slapping the crap out of Marylin Mosbey.

The abortion was not Planned and it was clearly not elective. The victim was not tortured. The body was not dismembered. The parts were not harvested and sold for profit. So, of course there must be a trial. The death is not protected under the State-established Pro-choice Church and special rites of the twilight zone. May the liberal judges have mercy upon his freedom, and the IRS upon his finances.

“…a sanction which Deputy Chief State’s Attorney Schatzow appeared to shrug off…”

Could he be just going through the motions at this point? Following orders but seeing his reputation get damaged by the day?

Given that the judge was offended by the rough ride theory and the prosecution conceded the arrest was legal, I can only assume they will pivot away from arguing Goodson was most responsible for buckling Gray to Rice was most responsible as the supervisor for ensuring Gray was buckled.
It should be noted that involuntary manslaughter was the only charge against Goodson that was somewhat substantiated, with the judge agreeing he was negligent but not criminally negligent.
I see another embarrassing defeat for the prosecution, but I don’t know what else they could argue

    Milhouse in reply to phiremin. | July 6, 2016 at 3:06 am

    The judge did not agree that Goodson was negligent.

      phiremin in reply to Milhouse. | July 6, 2016 at 6:18 am

      From the Baltimore Sun:
      Williams said the only time the prosecution proved that Goodson had neglected his duty to secure Gray with a seat belt was at the van’s fourth stop. But…
      “the state has failed to meet its burden to show that the actions of the defendant rose above mere civil negligence”
      BTW, I’m not agreeing with the Judge, merely trying to figure out how the prosecution will move forward with a case that’s falling apart. And, I expect they will really focus on involuntary manslaughter, arguing That a “reasonable” supervisor would have ordered Gray be buckled.

        Milhouse in reply to phiremin. | July 6, 2016 at 11:52 am

        The judge didn’t say that the failure did rise to civil negligence, but only that it didn’t rise above it. Whether it rose to civil negligence was irrelevant, so he made no finding on that.

        Char Char Binks in reply to phiremin. | July 6, 2016 at 12:01 pm

        The Sun is not the judge, and AFAIK, the judge never said the prosecution proved anything. True, Williams did refer to the “failure” to seat belt Gray, but that’s a failure only in the sense that the seat belting didn’t happen, not an implication that it should have happened, or that it was a crime not to do it. Also, that the actions didn’t rise above mere civil negligence doesn’t prove that they even rose to that mere level, nor did the judge imply that.

        You may be right about the tack the prosecution will take with Rice. Because he was the senior officer, they’ll probably try to say he was responsible for micromanaging every move any officer made, or didn’t make, but I doubt the judge will buy it.

          Milhouse in reply to Char Char Binks. | July 6, 2016 at 1:04 pm

          Actually the judge did throw a bone to the prosecution: “This Court finds that the only time that the State has proven beyond a reasonable doubt that the defendant failed in his duty to seat belt Mr. Gray is at stop 4.”

          He didn’t say that this failure constituted civil negligence, though it’s easy to assume he did. He wrote that “the state must show, not that the defendant failed to do an act required by the duties of his office, but that the defendant corruptly failed to do an act required by the duties of his office”, which he wrote requires more than “mere civil negligence”.

          Char Char Binks in reply to Char Char Binks. | July 6, 2016 at 1:07 pm

          I stand corrected.

healthguyfsu | July 5, 2016 at 10:18 pm

I understand that Mosby had a potential recusal conflict, but as far as I know, it was denied by the judge.

I find it fitting that she has bailed on this and left it to underlings once she realized she had jack crap.

broomhandle | July 5, 2016 at 10:26 pm

I’d say that given the current political winds and the “courage” to lead with this act of social justice, Mosby is headed straight for that Supreme Court vacancy.

I know there were motions pending about the prosecution having to testify in this case (in light of the affidavit of Cogen ). Does anyone know if anything has been decided?

At the next trial I imagine Judge Williams will just look at Schatzow , wiggle his finger and Schatzow will produce the hidden discovery materials with a hang dog expression and no words expressed .
Just like the grade school kid caught with the chewing gum.

Mosby, et al, are just digging their civil grave deeper. It is clear that there is no evidence to support ANY of these cases. To continue with these trials only serves to provide additional proof that this prosecution is nothing more than an attempt by the prosecution to maliciously injure the defendants. In the words of Kenny Rogers, “You gotta know when to hold ’em. Know when to fold ’em. Know when to walk away. Know when to run.”

can Porter req


can Porter request a bench trial the 2nd time around?

    Milhouse in reply to redc1c4. | July 6, 2016 at 3:09 am

    It is entirely up to Porter whether he wants a jury trial or a bench trial. In MD neither the prosecution nor the judge get a say in the matter. The judge’s only role is to ensure that the defendant understands the choice he is making.

      RodFC in reply to Milhouse. | July 6, 2016 at 12:45 pm

      You misunderstand. The question is not whether a defendant can choose a bench trial, but whether Porter already having chosen a jury trial in the first trial can now chose a bench trial instead.

      I think that for the most part it is like the first trial never happened, so Porter can get a bench trial.

        Milhouse in reply to RodFC. | July 6, 2016 at 1:09 pm

        It’s an entirely new trial, so Porter gets to choose jury or bench.

        Note that the defendant’s right to choose a bench trial is a peculiarity of MD law. In most places the defendant can waive his right to a jury and ask for a bench trial, but it’s up to the judge, and often also the prosecutor.

So the liberals are continuing with this sham of a trial where little to no evidence exists and yet Comey claims that no judge would find a reason to try Hillary. How much longer will it be before it is a crime to be a conservative or independent?

“How much longer will it be before it is a crime to be a conservative or independent?”

It is now the same answer every day — “Yesterday.”

    userpen in reply to TX-rifraph. | July 6, 2016 at 1:47 pm

    Yesterday all my troubles seemed so far away.
    Now it looks as though they’re here to stay.
    Oh, I believe in yesterday.

    Suddenly I’m not half the man I used to be.
    There’s a shadow hanging over me.
    Oh, yesterday came suddenly.

    Gremlin1974 in reply to TX-rifraph. | July 6, 2016 at 4:27 pm

    Not a crime yet, they haven’t started putting conservatives on the “terrorist watch list yet”…….”Yet”.