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Freddie Gray Tag

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.

News reports this evening indicate that the third day of the "Freddie Gray" trial of police van driver Officer Caesar Goodson has been pretty much of a nothing burger. The prosecution has floated, to one degree or another, three theories of the case, as we described in some detail in our prior post:  Freddie Gray: The Relevance of Donte Allen’s Changing Earwitness Testimony. Let's take a look at each theory of the case in light of the reporting on today's events at trial.

Last week we posted about how prosecutors in the current Freddie Gray trial of van driver Caesar Goodson had concealed from Goodson's defense attorneys an interview they had conducted with one Donte Allen.  Accordingly, the defense filed a motion for the dismissal of the charges against Goodson, a motion denied by trial Judge Barry Williams. In order to understand the relevance of witness Donte Allen, it is worth recalling exactly his role in the events surrounding the arrest and transport of Freddie Gray, and accordingly how his testimony might be relevant to determining the criminal liability, if any, of Officer Goodson. Assistant Medical Examiner Dr. Carol Allan provided the most detailed accounting of the events surrounding Freddie Gray's transport in the police van, including his physical condition during that transport and especially at specific stops along the route, in her report. Although this autopsy report has not been made public, on June 24, 2015 the Baltimore Sun published relevant sections of the report from a copy that they managed to obtain. The quotes embedded below come from a single contiguous section of that report as published by the Sun.

On May 26 we posted that two of the six police officers charged in the death of Freddie Gray—Sergeant Alicia White and Officer William Porter—had filed defamation and invasion of privacy charges against Maryland State’s Attorney Marilyn Mosby and Major Samuel Cogen of the Baltimore City Sheriff’s Office . It was Cogen who swore out criminal charges against the officers, presumably at Mosby’s request. We followed this up with a post on June 8 noting that the two officers had amended their complaint to include allegations of malicious prosecution, false arrest, and violation of the Maryland declaration of rights, article 24 and 26. At the same time, we noted that a third officer, Lieutenant Brian Rice, had filed a civil suit against Mosby on similar grounds. Today we learned that another two officers, Officers Garrett Miller and Edward Nero, have jointly filed similar charges against Mosby. In total, now, five of the six officers charged by Mosby in Gray’s death are suing her and Cogen for various forms of misconduct.

Prosecutors in the Freddie Gray trial of van driver Officer Caesar Goodson suddenly announced on Thursday, the first day of Goodson's trial, a new theory of the case never before formally argued by them:  that they believe Gray's injuries were the result of a malicious "rough ride" delivered by Goodson.  As the Baltimore Sun reports (emphasis added):
Before Thursday, prosecutors had presented evidence of a diving-type injury that caused his injuries inside the van, but had not directly alleged that Gray was hurt as a result of aggressive driving by the van driver.
The media and activists (but I repeat myself) have previously suggested that a "rough ride" might be in play in this case, but the prosecution itself has never directly made this claim part of their theory of the case--not, that is, until the opening day of Officer Goodson's trial. Officer Goodson is charged with murder, manslaughter, second-degree assault, misconduct in office and reckless endangerment in the death of Freddie Gray. By all indications the prosecution has long planned to convict Goodson on the grounds that he had failed in a legal duty to provide Gray with adequately prompt medical care.  Specifically, the prosecution had planned to argue that Goodson was aware that Gray was having difficulty breathing, because of a statement to that effect by his colleague Police Officer William Porter. Porter is alleged by Detective Syreeta Teel to have made a statement to the effect that Gray was saying he was having difficulty breathing during an initial unrecorded interview by Teel.  In a later recorded interview, however, Porter made no similar statement.  Further, when Porter took the witness stand at his own trial (the first of the Freddie Gray trials, and ending in a hung jury), he denied having ever made the statement.

Minutes ago trial Judge Barry Williams denied a last minute motion to dismiss all charges by the defense team for van driver Police Officer Caesar Goodson.  Goodson is charged with murder, manslaughter, second-degree assault, misconduct in office and reckless endangerment in the death of Freddie Gray, and his bench trial begins today. Late yesterday the Baltimore Sun and other news outlets report that trial Judge Barry Williams would this morning first hear a motion dismiss all charges against Officer Goodson as a result of repeated prosecutorial misconduct.  That motion has now been denied. Specifically, the motion filed by Goodson’s lawyers earlier this week (but under seal until yesterday) asked Judge Williams to dismiss the charges against their client on the grounds that the prosecution has repeatedly concealed from the defense exculpatory evidence. This follows on at least two prior incidents in the Freddie Gray trials in which prosecutors had similarly withheld exculpatory evidence from the defense. I have embedded the defense motion to dismiss at the bottom of this post. That motion also includes a transcription of the initial full interview with Donta Allen and detectives, in which he describe Freddie Gray’s movements in the van as extremely energetic. It’s worth the read. Prosecutors have a legal duty to share with criminal defendants any exculpatory evidence upon which they might stumble in the course of their investigation. Violations of this duty are commonly referred to as Brady violations, named after the 1963 Supreme Court case of Brady v. Maryland which established this legal duty. The traditional remedy for a deliberate, or even accidental, failure to disclose such exculpatory evidence is dismissal of the criminal charges.

Two weeks ago, we published a post noting that two of the police officers charged by MD State's Attorney Marilyn Mosby had gone on the offensive and filed a civil suit in Federal Court against her and Maj. Sam Cogen of the Baltimore Sheriff's Office for defamation and invasion of privacy. (It was Maj. Cogen who signed off on the charging documents against the officers.) Since that post we have learned that a third officer charged in the case, Lieutenant Brian Rice, filed a contemporaneous suit against Mosby and Maj. Cogen on similar grounds. All three officers claim that both Mosby and Cogen knew that the officers had committed no crime, but nevertheless brought serious criminal charges against them--including manslaughter, felony assault, reckless endangerment, and misconduct in office--despite this knowledge. The officers claim that Mosby and Cogen brought these charges not because they believed the charges were legally justified, but for political advantage and to attempt to quell the riots, looting, and arson taking place throughout Baltimore.  For this reason, they argue that Mosby and Cogen should not receive the immunity that would normally protect them from legal liability for decisions and action made in the course of their duties. Essential to this theory of the case is that Mosby and Cogen acted with actual malice, rather than mere negligence.  The officers feel malice is supported by the evidence including the Mosby press conference in which she announced the charges and stated to the assembled crowd:
I heard your calls for, ‘No Justice, No peace.’ Your peace is sincerely needed as I work to deliver justice on behalf of this young man.
Today the officers' initial claims of defamation and invasion of privacy seem to have been simply the opening salvo against Mosby and Cogen.  According to a report by LawOfficer.com Sergeant Alicia White and Officer William Porter plan to amend their civil complaint to add new allegations of malicious prosecution, false arrest, and violation of the Maryland declaration of rights, article 24 and 26.  According to Political Insider, Lt. Rice's complaint against Mosby and Cogen is also expected to be amended to include those additional allegations.

Police officer Caesar Goodson, the driver of the van in which Freddie Gray suffered his traumatic neck injury, has opted for a bench trial, reports the Baltimore Sun yesterday.  Among the six officers charged in the matter of Freddie Gray, Goodson faces the most serious charges.  These include depraved-heart murder, manslaughter, second-degree assault, misconduct in office, and reckless endangerment.  The murder charge alone is a second-degree felony with a maximum sentence of 30 years. Goodson is 46 years of age.  Goodson's trial proper is to begin on Thursday. In an important ruling yesterday, trial Judge Barry Williams held that prosecutors would be prohibited from introducing into evidence a statement the State alleges to have been made by Police Officer William Porter that Gray had said "I can't breath."  The claim that Goodson was aware of this claimed statement is essential to the argument that Goodson was aware of Gray's need for medical care and therefore bears criminal liability for failing to provide such care.

It looks like at least two of the Freddie Gray defendants have decided to go on the offensive. According to reporting by the Baltimore Sun, Sergeant Alicia White and Officer William Porter have each filed suit against State's Attorney Marilyn Mosby for defamation and invasion of privacy.  Also named in the suit is Major Sam Cogen with the Baltimore Sheriff's Office and the State of Maryland itself. The Baltimore Sun report notes:
Mosby, who announced the charges one day after receiving the official police investigation into the incident, said that she had conducted her own independent investigation with the help of the sheriff's office. Cogen signed and filed the initial charging documents in the case, outlining the state's probable cause.

[UPDATES THROUGHOUT POST] Today Judge Barry Williams returned a verdict of not guilty in the "Freddie Gray" trial of Baltimore police officer Edward Nero, reports Justin Felton of the Baltimore Sun. Nero had been charged with second degree assault, reckless endangerment, and two counts of misconduct in office for his participation in the arrest and transport of Freddie Gray. Gray had been arrested as part of a crackdown on a high-crime are of the City of Baltimore.  He would suffer a severe spinal injury while being transported in a police van, and would die of his injuries a week later.  After Gray's death Baltimore was wracked with riots, looting, and arson.

Today the prosecutors and defense presented their closing arguments in the “Freddie Gray” trial of Baltimore Police Officer Edward Nero. Naturally, nothing much new emerged, and each side simply summarized their theory of the case. There was one unusual facet of these closing arguments, however. Normally, closing arguments are presented as monologues to a jury, and the jury must simply sit and listen. In this bench trial, however, trial Judge Barry Williams is serving as the jury, and has the opportunity to ask questions of the lawyers as they close. It appears from news reports in the Baltimore Sun that Judge Williams took full advantage of this opportunity, particularly with respect to the prosecution’s closing.

The defense in the “Freddie Gray” trial of Officer Edward Nero rested today, the trial’s fifth day. Closing arguments are anticipated tomorrow, and trial Judge Barry Williams has announced that he expects to return a verdict on Monday, May 23. There hasn’t been much substantive reporting on the defense’s case the last two days, and of course there aren’t cameras in Maryland courtrooms, but the following is based on live-“tweeting” of the trial by the Baltimore Sun.

Trial Day #4

The defense primarily brought as witnesses police officers who either were somehow involved or a witness to Gray’s arrest and transport, who trained Officer Nero, or who otherwise are experts on police procedure.

First, my apologies for not getting this post up last night--I'm in the process of riding the motorcycle to the NRA Annual Meeting in Louisville, and various delays just pushed last night's arrival to too late an hour. Yesterday the State presented the remainder of its case against Officer Edward Nero, and rested. The prosecution's case turns out to be just as weak and ridiculous as every reasonable person has long since perceived.  In essence, the prosecution's theory of criminal liability for Nero rests on the fact that when his superior officer, Lieutenant Brian Rice, radioed for assistance in chasing down a fleeing Freddie Gray, Nero complied with that request without first making an independent evaluation of whether reasonable suspicion existed for the stop or probable cause for the arrest. Of course, such automatic good faith compliance with fellow officers in a pursuit and arrest is precisely what police are trained and expected to do.  If the officer requesting assistance is later unable to articulate reasonable suspicion or probable cause, that's on the initiating officers, not on those who come to that officer's assistance in good faith.  The notion that the assisting officers should face years in prison for such good faith conduct is utter madness.

Yesterday saw the start of the latest trial related to the arrest and transport of Freddie Gray on April 12, 2015.  Gray would die a week after his arrest, and his death was promptly used as a justification for days of violent rioting, looting, and arson in Baltimore. This time the defendant is Baltimore Police Officer Edward Nero, one of a total of six officers against whom criminal charges were brought following Gray's death. [caption id="attachment_171309" align="alignnone" width="600"]Officer Edward Nero Officer Edward Nero[/caption] The prosecution is being led by Chief Deputy State's Attorney Michael Schatzow, an attorney with relatively little criminal law experience.  Schatzow previously led the failed prosecution of Officer William Porter in the first “Freddie Gray” trial earlier this year. (Porter’s trial ended in a hung jury, and prosecutors have announced they intend to re-try him.) Nero is being represented by defense attorney Marc Zayon.

The second of the Freddie Gray trials is scheduled to being this Wednesday, May 11, this time of Police Officer Edward Nero, one of the three officers involved in Freddie Gray's initial stop and arrest.  Nero was charged with second-degree assault, two counts of misconduct in office, and reckless endangerment. Nero is being tried on charges of second-degree assault, two counts of misconduct in office and reckless endangerment. All the parties involved remain under a gag order imposed by trial Judge Barry Williams (transparency, much?). Nevertheless, news reports are indicating that the prosecution has essentially conceded that they're simply making up the legal theory under which they are bringing Nero's prosecution. The Baltimore Sun uses the phrase "novel legal theory" to describe the State Attorney Marilyn Mosby's prosecution of Nero, which is simply a more polite way of saying "they're making up the law as they go along."

Having succeeded in getting court permission to compel Officer Edward Porter to testify, under limited immunity, against other officers in the "Freddie Gray" trials, Baltimore prosecutors have now filed a motion to similarly compel Officer Garrett Miller [Featured Image, left] to testify in next month's trial of Officer Edward Nero [Featured Image, right], reports the Baltimore Sun. The prosecution's motion is embedded below. Porter was the first of the officers involved in Gray's arrest and transport to stand trial, with a hung jury as the result. Porter is scheduled to be retried later this year in state court, and may also be subject to Federal prosecution. Despite this, Maryland's highest court has ordered that Porter can be compelled to testify against other officers under the protection of limited immunity, and that doing so does not violate Porter's 5th Amendment right against self-incrimination.

The Maryland court system has re-scheduled the trials of the six officers charged in the death of Freddie Gray, reports ABC News. These trials had been delayed while the state's highest court decided whether one of the officers, William Porter, could be compelled to testify against the others, despite the fact that he was to be retried after his first trial resulted in a hung jury.  Last week that court ruled that Porter could be so compelled, allowing the remaining trials to move forward. The trial dates for each officer, and the charges against them, are as follows (in chronological order):

Officer Edward Nero:  May 10

Officer Nero was primarily involved as one of the arresting officers, and is charged with assault and reckless endangerment. [caption id="attachment_164896" align="alignnone" width="500"]Officer Edward Nero Officer Edward Nero[/caption]
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