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Attorneys debate reasonableness, foreseeability in Rice closings

Attorney Michael J. Belsky and his client Lt. Brian Rice seated at the motions hearing at the Baltimore City Circuit Courthouse where he elected for a bench trial in the Freddie Gray case. (The Daily Record/Maximilian Franz)

Attorney Michael J. Belsky and his client Lt. Brian Rice seated at the motions hearing at the Baltimore City Circuit Courthouse where he elected for a bench trial in the Freddie Gray case. (The Daily Record/Maximilian Franz)

The foreseeability of Freddie Gray’s injuries and the reasonableness of Lt. Brian Rice’s actions at the scene when Gray was loaded into the back of a police van last year were the focus of closing arguments Thursday at Rice’s criminal trial.

Prosecutors claimed Rice, the most senior officer charged in connection with Gray’s death, made a series of choices once Gray was in custody that “cannot be blamed on poor judgment or error.”

It was Rice, Deputy State’s Attorney Janice Bledsoe said, who chose to drive the van away from where Gray was picked up to another location, where Gray was taken from the van, put in leg irons and then placed him on the floor without a seat belt. Rice also decided the van should go directly to Central Booking and Intake rather than the Western District as originally planned, Bledsoe added.

Rice was punishing Gray for yelling and passively resisting arrest, Bledsoe said, not acting out of concern for any danger.

Defense attorney Michael Belsky countered his client acted reasonably in light of the circumstances because Gray was combative and the crowd around the police van was growing and hostile.

“What should he have done?” Belsky asked, claiming prosecutors never presented evidence of how Rice should have maneuvered an uncooperative Gray to the bench of the van and gotten him into a seat belt.

Rice is charged with manslaughter, reckless endangerment and misconduct in office. Baltimore City Circuit Judge Barry Williams will announce his verdict Monday in the bench trial, the third one he has overseen; Williams previously acquitted Officers Edward Nero and Caesar Goodson.

Appreciating the risk

As in past cases, Williams pressed prosecutors to commit to their legal argument, asking Chief Deputy State’s Attorney Michael Schatzow if an officer is guilty of a crime “every time” he or she fails to seat belt a detainee.

Schatzow answered in the affirmative, referencing the circumstances of Rice’s case.

But Belsky said Rice could not have foreseen the danger to Gray when he placed him on the floor of the van with his hands and legs restrained.

“The bulk of the testimony shows what an unusual… bizarre situation this was,” said Belsky, of Schlachman, Belsky & Weiner P.A. in Baltimore.

Williams asked similar questions of the state in the case against Officer Caesar Goodson last month.

“Like in the Goodson trial, Judge Williams really grilled the state, repeatedly questioning what evidence exists that Rice knew about the risk,” said Warren S. Alperstein, a defense attorney who observed closing arguments.

Manslaughter and reckless endangerment involve appreciating the risk and disregarding it. Schatzow said seat belts prevent people from moving around the interior of vehicles being injured, so it is foreseeable that injury could occur if one is not used.

“At the end of the day, the subjective element [of the crimes] is the prosecution’s greatest hurdle where they must demonstrate that Lt. Rice was conscious of the risk to Freddie Gray at the moment when he failed to buckle and he chose to ignore that risk,” said University of Baltimore School of Law professor David Jaros, who has followed all of the trials.

Crowd control

Without Rice taking the stand himself, the only law enforcement perspective about the incident came from Nero and Officer William Porter, who testified with immunity.

Belsky said Rice had seconds to make the decision about whether to use a seat belt in light of the circumstances, which included Gray banging inside the van when the doors were closed.

No video showed the van shaking; police were the only ones to testify Gray was rocking the van, according to Schatzow.

Bledsoe was critical of Nero’s statements describing why he and his fellow officers felt compelled to leave the area of the arrest quickly. Nero cited a growing crowd closing in and creating a dangerous situation.

Jaros said questioning Nero’s testimony was a way for the state to “counter the defense’s narrative that this was a chaotic and dangerous scene that warranted moving so quickly that they didn’t buckle in Mr. Gray.”

Bledsoe, though video footage and stills, showed a relatively small group at the second van stop where Gray was removed from the van, shackled, and placed back inside.

“I think the state tried to downplay the volatile nature of the crowd that was present at stops one and two,” said Alperstein, of Alperstein & Dierner P.A. in Baltimore.

Belsky countered that Officer Garrett Miller noted over the radio that Gilmor Homes was “emptying out” during Gray’s arrest and Gray was screaming, causing spectators to accuse the officers of mistreating him.

“This is not a pleasant scene,” he said.

In his rebuttal, Schatzow was critical of Belsky blaming the crowd and said the community should be able to observe and even criticize police actions without giving police a license to mistreat a prisoner.