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Freddie Gray Trial: State Presents Same Failed Case, Defense Rests

Freddie Gray Trial: State Presents Same Failed Case, Defense Rests

It’s déjà vu all over again in latest Freddie Gray trial; Closing arguments Thursday

The defense rested yesterday in the current “Freddie Gray trial” of Baltimore Police Department Lieutenant Brian Rice, and closing arguments are scheduled for Thursday.  Given the past practice of trial judge Barry Williams a verdict in this bench trial is likely to be delivered by him no sooner than early next week (to wit, after the weekend).

The regular reader of Legal Insurrection (and you’d be a fool not to be) will have noted that we haven’t done as many posts on this latest “Freddie Gray trial” of Lieutenant Rice as we have of the previous failed prosecutions of Officer William Porter, Officer Edward Nero, and Officer Caesar Goodson.  The explanation for that apparent lapse is straightforward–there’s little new to post about.

The ongoing legal battle between the police officers’ defense counsel and the State’s Attorney prosecutors is reminiscent in a pathetically bizarre “Groundhog Day” fashion of the battle of Waterloo, after which the defending Duke of Wellington dismissively noted of Napoleon’s attacking army, “They came on in the same old way, and we saw them off in the same old way.”

This sentiment is captured nicely in the trial of Lt. Brian Rice by University of Baltimore law professor David Jaros, who is quoted by the Baltimore Sun as stating:

We are left in position that feels very familiar. There does not seem to be a great deal to differentiate [the trial of Lt. Rice] from the [failed “Freddie Gray” prosecutions] that came before.

Before the trial of Lt. Rice had even begun trial judge Brian Williams dismissed one of the misconduct in office charges against him, in particular the misconduct charge premised on assault.  By the time the State had rested Judge Williams was also obliged to dismiss the assault charge itself, on the grounds that prosecutors had failed to provide any evidence that Rice had committed or conspired to commit an assault upon Gray.

Still remaining are charges of involuntary manslaughter, reckless endangerment, and a still remaining misconduct in office charge.  Given that this is a bench trial without a jury, a conviction on any of these remaining charges would require that Judge Williams be convinced of Rice’s guilt beyond a reasonable doubt.  This seems unlikely in the extreme if the judgment is made on the relevant law applied to the evidence in the case, a process that Judge Williams has followed faithfully in the bench trials of Nero and Goodson, both of whom he acquitted of all charges.

As State prosecutors have long threatened to do, they compelled the testimony of Officers Porter and Nero, the former on the basis of limited immunity and the latter on the basis of his earlier acquittal.  In the case of each witness, however, their testimony not only did not strengthen the State’s case it actually helped the defense.

For example, the officers spoke of the growing and excited crowd gathering around the scene of Gray’s arrest, which contributes to the reasonableness of their decision to be hasty in moving Gray from the scene and not taking the time to seat belt him into the police van.  This testimony was buttressed when the defense called a third officer, Zachary Novak, not charged in Gray’ death, whose testimony was reported by the Baltimore Sun as follows:

The defense, using the testimony of Nero and another officer, Zachary Novak, described a growing crowd of people “emptying out” of the Gilmor Homes public housing, surrounding and outnumbering the officers.

“There wasn’t enough of us,” Nero said.

Also among the defense’s mere four witnesses they also called two medical experts who both disputed the claims of the State’s medical examiner Carol Allen that Gray’s death was a homicide, arguing in expert testimony that in fact Gray’s death was an accident.  It is notable in this context that surprise testimony in the previous trial of van driver Caesar Goodson had revealed that Dr. Allen herself had initially believed Gray’s death to have been an accident, and that she only changed her finding to homicide after a private meeting with prosecutors.  Evidence of Dr. Allen’s early belief and the circumstances of her changed opinion had been hidden from the legal defense by prosecutors.

The defense medical experts also argued that Gray’s injuries would have been acute in nature, and thus could only have occurred very late in his transport (well after Rice’s involvement in Gray’s arrest had ended), and not progressive as claimed by Dr. Allen (which would have allowed for Gray’s injury to have occurred while Rice was still involved).  The defense’s medical experts, in contrast, said the results of Gray’s injuries would have been acute, suggesting that he could have suffered them only during the last leg of the van’s trip, long after Rice interacted with Gray. Arden, a former medical examiner, said Gray’s death should have been ruled an accident, not a homicide.

Ironically, perhaps the best thing to have occurred in recent days for State’s Attorney Marilyn Mosby, the “master-mind” behind these groundless and quixotic prosecutions, in terms of diverting press coverage has been the execution in Dallas of five white police officers by a violent black radical racist, followed by President Obama’s crass speech at the officers’ memorial in which he argued at length that the police themselves held substantial institutional guilt for the assassinations of their colleagues.

Sometimes, I suppose, when you’re a Marilyn Mosby it’s better to be lucky than bad.

Ok, folks, that’s it for now.  More after the closing arguments on Thursday, I suppose.

–-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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My prediction: That big old boulder is about roll right back down the hill . . . .

Over and over and over again, we keep finding out that the alleged “victims” of “police brutality were actually victims of their own bad judgment.

This was a case where I thought there actually, finally, might be a problem with police behavior. Instead, it now appears that Freddie Gray managed to off himself.

    assemblerhead in reply to Valerie. | July 13, 2016 at 12:18 pm

    It always has been a “race” driven case.

    Without “race”, the media would have never mentioned ANYTHING about the arrest or events afterward.

    Notice how anytime a “white” cop has to deal with a “black” criminal, its all “racism / bigotry / hate crime” ( according to media & liberals ).

    Funny how a “black” cop dealing with a “white” criminal never makes the news. And doesn’t get labeled as “racism”.

    Hmmm … biased reporting maybe?

      White cop kills black criminal suspect who is assaulting him. Must be RACISM!!!!

      Black criminal kills white cops and outright says it’s because they’re white cops (i.e. racism). POTUS declares it’s “difficult to unravel his motives”.

      Must be that “fundamental transformation of America” again.

      Paul In Sweden in reply to assemblerhead. | July 13, 2016 at 2:25 pm

      Black city, black mayor and a black DA and a black Police Chief and still cries of institutional racism. We should not forget that a large part of the Freddie Gray arrest was due to the Black DA insisting that her Black husband’s district be given special attention with a crack down on drug and other crime so that his disposition could be improved with his black constituents. There must be racism somewhere in here.

      Twanger in reply to assemblerhead. | July 14, 2016 at 11:07 am

      Indeed. We are all disgusted by this race-baiting game.

      It has to end.

      People have to take responsibilities for their own actions.

      Society has to hold those who act wronging responsible for their actions, instead of blaming someone else.

      Blacks are killed by blacks FORTY TIMES as often as blacks are killed by cops.

      If the Sharptons and Jacksons and Obama’s of the world REALLY cared about black people, this is what they would be addressing. However, they don’t. They only care about making money from race baiting.

    ecreegan in reply to Valerie. | July 13, 2016 at 2:22 pm

    The Walter Scott case seems to have been murder of a fleeing man (and one who was fleeing because of repeated miscarriages of justice(*), not that the cop on the scene had any way of knowing that.) The Philando Castile shooting looks at first light as though the cop panicked and killed an innocent man (who happened to match the description of an armed robbery suspect and had just told the cop he was armed) but it’s too soon to say. Akai Gurley’s death was found to be manslaughter — indefensible accidental discharge and damned luck that the ricochet off the stairwell killed him.

    In all the other cases I can think of where Black Lives Matter chose to champion the deceased, either the deceased had it coming or it was an accident that the deceased significantly contributed to. No one that I know, emphatically including me, thinks that Eric Garner deserved to die — but if you’re grossly obese with breathing problems, you probably shouldn’t resist arrest; the cops *will* use force to subdue you, they have to, and you’re strong and fragile; accidents will happen.

    Can anyone else think of other BLM cases where the police deserved to be jailed?

    The fact that Black Lives Matter’s main poster child was Michael Brown instead of Walter Scott tells me a lot about Black Lives Matter, none of it good. I’m waiting to see whether Alton Sterling or Philando Castile becomes the next poster child.

    (*) They misfiled his child support payments and jailed him for nonpayment. He lost his job due to the jail time, never found another job as good, and kept getting jailed for nonpayment, fired for being in jail, jailed for nonpayment, etc.

      Milhouse in reply to ecreegan. | July 13, 2016 at 2:44 pm

      The Philando Castile shooting looks at first light as though the cop panicked and killed an innocent man (who happened to match the description of an armed robbery suspect and had just told the cop he was armed)

      Why does it appear to you at first light that he was innocent? Why do you assume he wasn’t the robber? And what, apart from the girlfriend’s word, makes you think he told the cop he was armed? In the video a gun can be seen in his lap; isn’t it more likely that the cop saw that gun? In any case, whether he told him or not, and whether he turns out to have been the robber or not, what cop would ever allow anyone he’d stopped, let alone a robbery suspect (which he was at that moment), to move his hand toward his gun?

      Char Char Binks in reply to ecreegan. | July 13, 2016 at 6:11 pm

      Walter Scott was a dangerous fleeing felon who took the taser from Officer Slager and threw it on the ground before he turned and ran. That is proven in the video. Police have a duty to shoot dangerous fleeing felons, and I’ve never heard or read of any of them fleeing by running backwards.

      Philando Castile just HAPPENED to match the description of the perp in the robbery that occurred four days earlier and 1.8 miles away on the same road where he was shot because HE WAS the robber. He had the same hairstyle, same beard style, same skin coloring, same facial features, same glasses, and the same shoes. Are you saying they all look alike?

        amatuerwrangler in reply to Char Char Binks. | July 14, 2016 at 12:55 am

        Duty?? Not where I am. There are provisions where a fleeing suspect can be shot, but one must establish the violent crime he flees from and the demonstrable evidence of the danger society faces if said person is not immediately stopped. It (deadly force on fleeing person) is allowed under very specific circumstances, but far from a duty.

        I take issue with you on this so that no one decides to take this comment thread as legal doctrine and shoots someone fleeing from a $1000 forgery.

        Milhouse in reply to Char Char Binks. | July 14, 2016 at 2:10 am

        It’s far too soon to say whether Castile was the robber. There is no information available, so we must wait for the facts before expressing opinions on the matter. It seems to me that all those who are convinced either that he was the robber or that he wasn’t are merely expressing what they want to be true. But what one wants has no effect on reality, and it’s literally insane to think otherwise. Me, I don’t have any wants; I don’t care whether he was or wasn’t the robber, I just hope it’s eventually established one way or the other, rather than left unresolved as a moot point.

        Whether he was the robber is also irrelevant to the shooting. All that’s relevant is that the cop thought the resemblance was strong enough to justify a pretextual stop to check IDs, but not enough to arrest them. He approached the car reasonably suspecting that the occupants might be armed robbers, but not convinced that they were. And that’s the context in which he saw whatever he saw.

        Milhouse in reply to Char Char Binks. | July 14, 2016 at 2:11 am

        Char Char, In what way was Scott dangerous?

      Gremlin1974 in reply to ecreegan. | July 13, 2016 at 9:47 pm

      Philando Castile had a gun in his lap and now it is being reported there is at least audio of the officer telling him to not touch the gun then to get his hand off of the gun.

      Also, he does bare a striking resemblance to the person in the screen grabs from the robbery.

      Walter Scott in my personal belief it is almost never justified shoot someone in the back or while running away. Now, there is the dangerous fleeing felon, but in general its just hard to justify.

There was something new about Grey having a bloody nose after the 4th stop which was not apparent before the 4th stop which indicated that he was injured after the 4th stop. Rice never saw him after the fourth stop.

One real funny thing happened that you cannot make up.
The judge disallowed a statement from a prosecution medical expert. The statement was that Grey was suffering from air hunger. It was based on Teel’s statement that Grey said he couldn’t breath at the fourth stop ( hearsay and controverted by Porter in the first trial).

Now for the tweets:

Kevin Rector ‏@RectorSun

Schatzow: Conclusion not just based on those 3 things was it?
Soriano: No
Belsky: Also based on belief he was hungry for air?
Soriano: Sigh
Kevin Rector ‏@RectorSun

Soriano: Understanding is “we’re not allowed to talk about” hearsay statement (Porter alleg made to Teel re Gray saying ‘I cant breathe’)
Kevin Rector ‏@RectorSun

Judge Williams looks exasperated.
“Luckily there’s not 12 people over there,” he says, gesturing to empty jury box.
And “no, you’re not.”

Boy diod the judge ream Schatzow.

    Gremlin1974 in reply to RodFC. | July 13, 2016 at 9:50 pm

    I am convinced that Judge Williams is allowing these cases to continue to make sure the officers have the maximum protection. If he rules Not Guilty then they can never be tried again. I think he is going through the motions to make that happen.

    I do owe Judge Williams an apology I did not believe that he would be fair and unbias, but I have been very surprised. Judge Williams seems to be the kind of Jurist that we need many more of to replace the ones that…..well that we know need to be replace.

      phiremin in reply to Gremlin1974. | July 13, 2016 at 10:40 pm

      I actually think it’s more about maximum transparency. He wants to show Baltimore that the persecutors were given every opportunity to make their case. He has even been pretty thourough in explaining his verdicts.

Humphrey's Executor | July 13, 2016 at 12:11 pm

This is off topic but the reference to the Mosby’s luck in having the other tragic news conceal this travesty reminded me of this story:

In April 1945 Gen Patton ordered a rescue mission to a prisoner of war camp that held his son in law. The mission was a complete disaster, needlessly risking and costing lives when the war was already all but over anyway. But FDR’s sudden death relegated the story to the back pages. Patton was ecstatic, commenting to his staff: “You could execute buggery in the street on the day the President dies and it won’t make page 15.”

Of all the alleged cases of police brutality that are hyped by BLM, only the case of Walter Scott is even questionable. And the officer there is charged with murder. All the other cases allege one set of facts that would lead one to conclude the officer acted rashly, only to have the circumstances change once all the facts are known. Of course BLM has no interest in the facts, only their own righteous indignation.

    “And the officer there is charged with murder.” And has been fired by the department.

    In other words, the system is working.

    In a nation of 320 million people we’re never going to have 0.0% wrongful killings by police. In the rare instances where they happen, the officer naturally needs to be held accountable, exactly as is happening in the Walter Scott case.

    –Andrew, @LawSelfDefense

    ecreegan in reply to BrokeGopher. | July 13, 2016 at 2:50 pm

    Peter Liang was convicted of manslaughter for Akai Gurley’s death, though he didn’t serve any prison time. Both parts of that seem perfectly reasonable — it was an accidental discharge that ricocheted and hit someone down the staircase. So, manslaughter, but probation and community service.

    The Philando Castile shooting looks at first glance as though the cop panicked and killed an innocent man — though I’ll wait and see.

    People are screaming about Alton Sterling’s death, but well — if you resist arrest with a gun in your pocket, what do you *think* is going to happen? Waiting for more videos to surface.

    Eric Garner’s death was questionable, but the fault of the EMT’s, not police. If you’re grossly obese and a cop kneels on your chest to get the cuffs on, it’s not surprising that something got strained. No one believed his claim that he was having difficulty breathing, but the police summoned an ambulance as per policy, and the EMTs got fired for the way they handled it.

      Gremlin1974 in reply to ecreegan. | July 13, 2016 at 9:54 pm

      After all the stuff with Eric Garner was done is when the EMT’s mishandling of the situation came out as a medial professional I was pissed by the EMT’s handling of it, they should have been charged.

    Estragon in reply to BrokeGopher. | July 13, 2016 at 4:16 pm

    Perhaps most significantly, the Black Lives Matter movement was artificially created when Soros and other leftists were disappointed at the “community reaction” in Ferguson after the death of Michael Brown. Outside organizers were hired and shipped into the area essentially to foment trouble, to make it appear “the community” was more inflamed than it was. They were successful.

    Of course, all evidence pointed to, and the court system decided, the fact that Brown’s death was thoroughly justified and entirely brought about by his own unlawful and violent actions. So BLM is based on a lie. Fitting, since their sole purpose is to sow discord to keep blacks and liberals angry and radicalized.

Each officer actually is getting two trials. One as an individual and one as a member of a group.

The criminal trail considers the officer as an individual human being. Facts and specific circumstances are established and then tested against the applicable law.

The social trial considers the encounter not as interaction between two individuals, but as an interaction between two groups – police and black victims of the police. Here the trial is over quickly as all one needs to do is identify the groups, call up the assigned abstract concepts and narratives, and draw the obvious conclusion. The Governor of Minnesota made his determination that the police shooting in a St. Paul suburb was police racism within a couple of hours of the encounter. I am sure he is puzzled as to why it takes days or weeks for the Minnesota Bureau of Criminal Apprehension (the state police) to investigate the shooting and gather the facts (whatever those might be). Aren’t narratives all that is needed?

We have a dichotomy here: The cops are innocent as individuals but guilty by their status as police officers. No wonder SJW types despise the rule of law. All an SJW needs is an executive order for justice.

Why is it an SJW calls the police when his or her life is in danger? Apparently reality sometimes trumps delusion.

BTW, Hillary received an SJW trial and was found innocent by definition. Police are found guilty by definition in every SJW trail. In either case, facts are notwithstanding. Only assigned concepts and narratives need apply. You only need to identify the groups.

How does the city of Baltimore get the $6,000,000 back that it gave to Gray’s family? I wonder what they’ve done with that windfall?

    Humphrey's Executor in reply to gasper. | July 13, 2016 at 12:48 pm

    Seriously? I would have taken the family’s wrongful death case in a heartbeat. Baltimore City juries are notoriously plaintiff friendly. And there is a credible case for ordinary negligence on the part of the police of for no other reason that they failed to make the vehicles safer.

      $6.4 million? Without even a hearing? It was offered to them. Only a lawyer would respond with: “Seriously?” with a question mark. To you, this is normal. to most of us it’s pure bull dung.

        healthguyfsu in reply to gasper. | July 14, 2016 at 1:29 am

        Once those reparations came in, all was quiet in the city of B-more. I haven’t heard a peep out of BLM or the “folks that needed space to destroy” after all of these trials.

    Char Char Binks in reply to gasper. | July 13, 2016 at 6:15 pm

    They already spent the money on Kools and Jordans.

    Common Sense in reply to gasper. | July 13, 2016 at 9:17 pm

    I hope that the officers charged get 12 Million! 🙂

Humphrey's Executor | July 13, 2016 at 12:37 pm

Mosby’s luck in having this travesty of a trial relegated to the back pages by other tragic news reminds me of this:

In April 1945 Gen. Patton ordered a rescue mission to a prisoner of war camp deep behind enemy lines because the camp was holding his son in law. The mission not only failed but was a disaster that needlessly wasted lives when the war was already all but over. Even his son in law was permanently injured in the raid.

But it happened at the same time FDR died. So Patton was elated by the news of FDR’s death, telling his staff: “You could commit buggery in the street on the day the president dies and it won’t make page 15.”

It seems that Mr. Gray’s injuries were the result of his own negligence. The evidence points to Mr. Gray leaving position of safety on the floor of the van and trying to stand while he was besotted. Had Mr. Gray been seat belted by the officers– he could equally well have opened his seat belt and tried to stand.

    I get what you are saying. But, Freddie’s injuries were self-inflicted and intentional, therefore “negligence” is not the word I would use.

    Why do you think nobody is addressing the pink elephant in the room? (That is to say, his injuries were most likely self-inflicted.”)

blacksburger | July 13, 2016 at 5:44 pm

I have heard that when Gray was taken to the hospital, they found drugs in his system. Has anyone ever said just how heavily he was drugged?
I wonder if he swallowed some of his merchandise as he ran from the police, and the quantity of drugs in his system caused him to behave in bizarre and dangerous ways.

    Gremlin1974 in reply to blacksburger. | July 13, 2016 at 10:01 pm

    There could be several reasons. I am like you I would love to see everything from his hospital stay, because I will almost
    bet the surgery to “repair” his injury.

    I would say the most likely explanation is that the officers have good representation and that the states case was so weak that they didn

The police chief in Roseville come out today and called Diamond Reynolds on her statements .
She had stated CPR was not done , she had been held 8 hrs and not fed

The chief stated she was there 2 hrs ,the police did CPR and one gave her 40 dollars for the groceries in the car.

People still believe her when not one of her statements have been corroborated.
When she said originally that they were told to put their hands up and then give ID set off the smell test.I would assume they would get em out pat em down and worry about ID later

Any LEO s here to comment on that procedure?

Also on one of my insomniatic nights .I read a story ABC where Diamond was asked about the lawyers statement that it had to do with the gun and she stated
(Approximation )Oh no he never saw the gun ,it was not visible and We NEVER told him.
The next morning the story was nowhere to be found ,pulled or hid .

Suppose ABC nitwits finally realized she completely blew the narrative?
I have since heard her lawyers have put the kybosh on media appearances.

I believe on the Philando Castile case Philando panicked .
The girl in her video said there was weed in the car.
Weed and gun ,legal or not, equals felony.
I think he tried to hide it , .
Weed does that to your cognitive abilities.

I wonder if the glasses came off in the shooting or was he driving without them .
Someone got a post by her that he got a haircut the day the BOLO came out , Could be an attempt to change looks.
Another Darwin Award winner or runner up to Freddie