Mimesis Law
20 May 2019

Freddie Gray Prosecutors Continue Mockery

June 14, 2016 (Fault Lines) – When police kill and get the Cadillac version of due process, it reinforces the idea that our justice system is unfair. Prosecutors look out for their kind and law enforcement can act with its own version of immunity.

The officers on trial for Freddie Gray’s death in Baltimore aren’t getting special treatment from prosecutors. They are getting the same overreaching, hypocritical, cheating prosecution the rest of us are subject to. The irony would be delicious, if it didn’t taste so damn bad. Because at the end of these trials, Freddie Gray’s death will fade from the headlines. But the prosecutors will still be there prosecuting.

It started with the familiar witness flip in William Porter’s trial. Only government lawyers can call someone a liar and then turn around and make him so important a witness they had the Maryland Court of Special Appeals force him to testify.

In Edward Nero’s trial, the prosecutors decided to argue the Constitution limited the ability of police officers to search and seize. Making constitutional violations by the police into crimes sounds awesome. So do unicorns.

Last week, the big trial started. Caesar Goodson was driving the police van Freddie Gray was in and faces a murder charge. Prosecutors once again took a page out of the playbook for convicting regular criminals and used it against police criminals. This time, an old favorite. The Brady violation.

At the center of the controversy is witness Donta Allen. Allen was in the police van that Gray was in when Gray was injured. He is a tricky witness for the prosecution. Other than Gray and Officer Goodson, he was the only other person in the police van and should be able to clear up what happened. But at the same time, he has flip-flopped his story. First he told police Gray was trying to knock himself out in the van. Then he told the media that isn’t what happened. But he wasn’t finished. Apparently, there was another statement the prosecutors decided to conceal.

On Thursday, Goodson’s trial began with an extended discussion on a motion by the defense, unsealed Wednesday, requesting that the entire case be dismissed because prosecutors had failed to disclose another, extended proffer session they had with Allen a year ago, not long after the charges against the officers were brought.

Andrew Graham, Goodson’s attorney, said Allen repeated his initial statement to police at that meeting, and that the evidence was therefore exculpatory and required to be handed over by prosecutors. Short of a dismissal of the case, Graham asked that Allen’s statement to police be allowed into evidence regardless of whether he takes the stand. He said such an allowance was warranted in part because prosecutors had already been reprimanded for not disclosing evidence in the case twice before.

So after multiple instances of hiding evidence, surely the judge was going to award the prosecution with the death sentence for their case and dismiss it right? Three times seems like the magic number, whether you are not swinging at pitches or committing felonies.

No, of course not. Hiding evidence is no reason to dismiss a case. You have to win, right? The prosecutors got chewed out, but that’s about it for now.

[Judge Williams] repeatedly slammed Michael Schatzow, Baltimore’s second highest ranking prosecutor, for insinuating that Allen’s statements during the proffer session were not exculpatory. “I’m not saying you did anything nefariously, I’m saying you don’t know what exculpatory means,” Williams said.

It’s nice the prosecutor wasn’t being nefarious, but when a defendant gets put in jail for a crime he didn’t commit, the difference is semantics. A judge should never have to say to a prosecutor, much less the second-in-command, “you don’t know what exculpatory means.”

Of course, this is the Freddie Gray prosecution, so the irony is piling up.

Schatzow also said Thursday that the state believes Allen was coached on what to say in his initial statement to police by another police officer, Officer Zachary Novak, who the state granted immunity in order to testify before the grand jury — where he denied the coaching accusation.

Williams noted that prosecutors had previously tried to discredit Allen’s statement to police by saying he had been high on heroin and Xanax when he gave it. In part because of that, Williams said, the subsequent proffer session with [Allen] was “classic exculpatory evidence” in that, during that session, Allen repeated the thrust of his statement to police in a different environment where he is not alleged to have been high or under the pressure of police.

Imagine that. The police coached a witness. And the police coach got immunity. And the witness was high on drugs, so the prosecutor said the witness was unreliable. Except he gave the statement again, sober and out of the police reach. Apparently after the recantations. But that statement wasn’t important.

You can’t make this stuff up, unless you are a Baltimore prosecutor. These cases have become a joke. Judge Williams has done a good job ignoring public pressure, but he still won’t impose any real sanctions on the prosecutors.

“My concern becomes what else is out there,” Williams said to Schatzow. “If your office doesn’t get that, I don’t know where we are at this point.”

Williams did not assess any sanctions against the prosecutors, but left the door open to do so in future rulings in the case.

Leaving the door open for sanctions in the future translates to “never” in prosecutorial misconduct language. The time for sanctions is now. The prosecutors in this case have made a mockery out of these trials. It looks like the cases are baseless. From witness shenanigans to broad interpretations of criminal laws to hiding evidence, if it’s this hard to get a conviction that should tell the prosecutors something.

Maybe we don’t have to arrest someone every time we see something that makes us mad. After two trials and the start of a third one, there is a serious question as to what exactly these officers did wrong. But we have come to expect a criminal proceeding when something makes us unhappy.

Arthur Johnson is a protester outside of the trial. He recognizes there are problems with these cases.

Now, Johnson actually agreed with some of the criticism of these trials. He says he has no doubt some of the charges against these police officers were brought for political reasons.

But in the same breath, he doesn’t care.

But a crime was committed. Somebody out of six is guilty of something because this thing of everybody being acquitted and not being found guilty of nothing – what message does that send to the community?

The message it should be sending to the community is that criminal trials are for crimes. Not politics. It may have made everybody feel better to see swift and certain justice rain down on cops, especially during a time when violence between police and citizens seemed to be reaching a head. But it should leave people frightened at the arbitrary power of government prosecution. Not only have we seen weakness in the cases, but we have seen prosecutors acting their worst.

Sure, it feels good to see an unfair trial and political message sent through arrests and trials when it’s the other guy. But how are you going to feel when it’s you?

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  • Dylann Roof & The Government’s Right To A Jury Trial
    17 June 2016 at 7:57 am - Reply

    […] Prosecutorial decisions can be based on the practical or the philosophical. Practically, the government should consider the logistics of a trial. Sometimes witnesses disappear or evidence is lost or too much time passes. Sometimes the costs of a trial far outweigh any possible result. Philosophically, prosecutions can be used to send a message, or make a point to society. This is usually a bad idea. […]