With the acquittal Thursday of the officer facing the most serious charges in connection with the death of Freddie Gray, attention now turns to what Baltimore City State’s Attorney Marilyn Mosby will do with the remaining four officers’ trials.
Baltimore City Circuit Judge Barry Williams has presided over three officers’ trials and served as the finder of fact in two of them, both acquittals with rulings critical of prosecutors’ cases.
In the latest trial, Williams found Officer Caesar Goodson not guilty of second-degree murder, manslaughter, vehicular manslaughter, second-degree assault, reckless endangerment and misconduct in office.
Officer Edward Nero was acquitted last month following a bench trial. Officer William Porter’s case ended in a mistrial.
That makes three trials and no convictions, meaning prosecutors should be evaluating and assessing their evidence in the remaining four trials, including Porter’s retrial, according to Baltimore defense attorney Steven H. Levin.
“Based on the evidence that has been publicly disclosed, I don’t think there has been sufficient evidence to charge them and I certainly don’t think there has been sufficient evidence to convict them,” said Levin, a vocal critic of Mosby.
Gene Ryan, president of the Fraternal Order of Police’s Baltimore lodge, said in a statement the organization suggests Mosby reconsider the remaining cases.
“To continue this travesty is an insult to the taxpaying citizens of Baltimore who, at the end of the day, bear the full burden of the enormous cost of these trials that have no merit and continue to divide our city,” Ryan said.
University of Baltimore School of Law professor David Jaros, who has followed all of the cases, said prosecutors need to step back and consider not whether they believe a crime occurred but if they have evidence to convince a factfinder beyond a reasonable doubt.
“At the end of the day, the prosecutors are limited to the evidence that’s available to them,” he said.
In acquitting Goodson of all charges, Williams said prosecutors’ case did not support a finding that a failure to seat-belt Gray or a failure to get medical attention rose to the level of criminal negligence.
“I think he focused primarily on the issue that I saw as the biggest hurdle for the prosecutors, which is proving that Officer Goodson was aware of the risks he was taking with Freddie Gray’s life and health,” Jaros said.
To prove the murder and manslaughter charges, prosecutors were required to show Goodson’s action or inaction caused Gray’s death and he knew or should have known he was creating a substantial risk of death or serious bodily harm, which Williams said they did not.
“I think a great deal was riding on their ability to prove that he had some intent to injure Freddie Gray during the transport… and when the evidence didn’t come out that way, they were stymied,” Jaros said.
Williams grilled prosecutors during closing arguments Monday on what facts in the evidence supported their theory of a rough ride; they pointed to surveillance video of the van running a stop sign and taking a wide turn.
But the judge said Thursday there was not enough proof from the video to show Goodson ran the stop sign or used excessive speed. An expert for the prosecution had previously conceded that he did not see evidence of a rough ride on that video.
“The state made the rough ride theory a centerpiece of its case and when the rough ride theory was not proven at all, a significant part of the state’s case fell apart,” said Warren S. Alperstein, a defense attorney who has been following the cases.
The failure to seat-belt Gray may have been a mistake or error in judgment, but was not criminal, according to Williams, and with Gray not showing any outward signs of medical distress, neither was not going immediately to the hospital.
“There must be more than a failure to transport after being told of an interest in going to the hospital for the court to find criminal conduct in the failure to secure medical treatment,” Williams said.
That point deals a serious blow to the state’s case against Porter, according to Alperstein, of Alperstein & Diener P.A. in Baltimore. Porter is charged with manslaughter, assault, reckless endangerment and misconduct in officer for allegedly failing to secure Gray with a seat belt at several stops and not making sure he received medical attention when he requested it. Jurors could not come to a consensus on any of the charges, leading to a mistrial
Motion to recuse?
Some experts have suggested prosecutors could ask Williams to recuse himself from future trials, particularly if the officers continue to request bench trials.
Parties are permitted to make a motion for the judge to recuse himself but the grounds in this case are relatively weak if the state intends to claim Williams cannot be impartial, according to Jaros.
“Judges hear codefendant cases with some frequency,” he said. “I don’t think the judge has done anything here to suggest he won’t evaluate the prosecution’s cases anew.”
All Williams has done, Jaros said, is strongly foreshadow how he feels about certain legal theories and evidence.
Levin said the trial judge has the discretion to grant or deny the motion, so it is unlikely Williams would remove himself.
“I think that is a very tricky motion to file because if the judge disagrees the state has to move forward before a judge who is potentially hostile toward their position,” he said.
However, after being admonished for repeated discovery violations and having their legal theories soundly criticized, prosecutors may have nothing to lose, Levin said.
“If they were concerned about alienating the judge, I think they’ve already done that,” he said.