Monday, May 4, 2015

Charged up Baltimore States attorney Mosby needlessly overcharges cops.

Unless Baltimore state's attorney Marilyn Mosby,who charged 6 Baltimore cops in the death of Freddy Gray has some devastating direct evidence she didn't disclose in her statement of probable cause which among other things, charged Ceaser Goodson, the driver of the paddy wagon that transported Freddy Gray with 2nd degree murder and other officers of first and second degree manslaughter,  she is running the risk of making worse the very kind of mistrust and resentment she was supposed to fix. Which could lead to more violence and more demonstrations if and when those charges are dropped or the officers acquitted.  Because based on the facts as she presented them in her statement of  probable cause, there is no evidence that remotely supports charges of 2nd degree murder or first degree manslaughter.

By filing those second degree murder and first degree manslaughter charges, Marilyn Mosby did what prosecutors often do and do unscrupulously -- she overcharged those cops, either for political reasons, or reckless irresponsibility,pandering, and incompetence. 

For a community that is looking for signs of being able to trust both elected and appointed authority, overcharging these cops and the consequences if charges are dropped or there is an acquittal, is going to be explosive. 

Prosecutors often overcharge defendants and use the overcharging to try and coerce plea deals. Often it works. Sometimes it doesn't. Overcharging defendants is largely business as usual for prosecutors. But the Freddy Gray case is different. This case for obvious reasons should not be business as usual. And  Mosby should not be trying to win plea deals by using coercive overcharging. It will never work. Especially because the cops feel they are innocent of the charges. 

The community that Mosby is addressing isn't looking at overcharging as a tactic. Most are taking Mosby's probable cause charges at face value and believe they are legitimate.  They aren't. They believe  Mosby wouldn't be filing these  probable cause charges if she didn't think she had enough evidence for convictions beyond a reasonable doubt. She doesn't.  

Unless Mosby has something she is not sharing and hasn't made public before,  (and if she does she could have said so without revealing what that evidence is) there is no chance of a second degree murder conviction and even first degree manslaughter is questionable.

There is also every possibility that if Mosby cannot make a valid showing of probable cause and cannot show that she has evidence that can sustain a guilty verdict on 2nd degree murder, a judge might throw those charges out completely.  And based on what is known,  justifiably. And if that happens the same community that felt disenfranchised before and are now literally dancing in the streets because of the severity of the charges,  may, because of Mosby, erupt in anger, feel the system is stacked against them again and that games are being played to protect the cops.  Which would be all Mosby's fault for leading them to believe something that wasn't factually true from the beginning. Right now Mosby has less probable cause in filing the most severe charges than the cops had in arresting Freddy Gray. 

To get a second degree murder  conviction a prosecutor has to show that a defendant knew or should have known that their actions would or could result in a person's death. The language which varies slightly from state to state is usually a defendant causing the death of another by showing a "depraved indifference to human life", by knowing that their actions could or would cause death. It is different from manslaughter where a defendant intends to inflict harm but doesn't intend to kill yet the victim dies anyway.

Based on the available evidence there is no way Goodson knew or should have known, that the actions on his part would or could result in Gray's death. It is unlikely Goodson even knew of the severity of Gray's injuries. So there is no way Mosby or Clarence Darrow for that matter, could get a conviction on second degree murder by proving beyond a reasonable doubt that Goodson did know.  As Alan Dershowitz has already pointed out, the second degree murder charge is preposterous and in his words  "outrageous".

Criminally negligent homicide?  Maybe. Involuntary manslaughter? Maybe. Gross negligence? Probably. Certainly failure to provide  immediate medical attention resulting in death and a host of violations of department guidelines and a few other charges.  But second degree murder? That's a joke and a politically motivated prosecutor playing prosecutorial games and  pandering, maybe trying to throw demonstrators a bone, something to mollify them, and it's the last thing Mosby should be doing.  It makes her look like one more inept Baltimore official, like the mayor and police commissioner,having no leadership qualities, screwing things up and descending to the occasion to try and mollify an angry community.

Continuing to add to her legend as inept, Baltimore's mayor put out a statement in response to the charges that "there is no place for racism in the Baltimore police department". Which would be fine except that three of the officers criminally charged in Gray's death are black. 

Marilyn Mosby is also an elected official.  And as we've seen with the mayor, other mayors and governors, members of congress and even in the presidency going back to 2000  up to the current occupant ,   being elected has nothing to do with being qualified for anything. Mosby didn't take a test to get this job. But she's failed the test of doing her job. 

Mosby sounded more like a political hack in announcing her charges than a responsible prosecutor. She also sounded like a politician when she told demonstrators that she " heard them". She is not supposed to "hear them". She is supposed to follow the facts wherever they lead on behalf of all of the people of Baltimore whether there were  10,000 demonstrators, one demonstrator, or none.

She said she is going to get "justice for Freddy Gray". As the state's attorney she isn't supposed to do that either. She is supposed to get justice period whatever justice is based on wherever the facts lead, not grandstand like a politician. It's ironic but in Ferguson, demonstrators, the news media, biased and dishonest media commentators like Sunny Hostin on CNN , were all demanding Bob  McCullough recuse himself as prosecutor because his father was a cop. In Mosby's case her whole family were police officers including her grandfather, but before the charges were announced no one demanded she step aside. Whether race and gender bias had anything to do with that is for people to decide for themselves. But in the end Bob McCullough showed more integrity of office and professionalism and a refusal to buckle to mob pressure throughout the process than Mosby did in just one press conference. 

Mosby also misrepresented the facts when she called Gray's arrest " an illegal arrest". It was not an illegal arrest ( and the actual term is "false arrest") and calling it such is either a product of  incompetence, bias or her desire to politicize the events as a politician not a prosecutor. 

 A lot is being made out of whether the knife was an illegal switchblade or not.  And there are some insisting that it was.  Even if the knife found was not an illegal switch blade, even if Gray had no knife at all, Gray still ran from police and led them on a foot chase of more than a mile. Unless Baltimore's laws are different from the rest of the country, that is resisting arrest, felony evading,  refusal to obey a lawful order, reckless endangerment,  and probably a few other things. All of which even without the switchblade made it a legal arrest.

 If the knife wasn't an illegal switchblade and the cop who filed an arrest report said it was, but knew it wasn't, the cop is open to prosecution for filing a false report. But if whether it was or not is open to question as it seems to be, then it comes down to whether a reasonable police officer acting reasonably had reason to believe it was a switchblade. If Gray hadn't run and it wasn't a switchblade the charges would've been dropped. But the police still  had enough grounds from Gray running and leading them on a chase to make a lawful arrest.

If a judge dismisses the 2nd degree murder charge because Mosby didn't have evidence that can sustain probable cause,  much less proof beyond a reasonable doubt for a conviction, or if the judge allows the charge because of the current climate and a jury acquits on murder and manslaughter,   Mosby runs the risk of  being responsible for the mistrust to explode again. She would be responsible for  causing  more  damage, more mistrust  and  more of the very resentment she was supposed to fix. All because of her own mishandling and politicizing of the case.

People in that community have a right to believe  that she wouldn't bring second degree murder and manslaughter charges against the police unless she had the evidence to support it and not play prosecutorial games.  But by doing just that,  by over charging without evidence based on what is known,  Mosby could see it all blow up in her face. And if that happens, there is the possibility  the community will   blow up again too.  Thanks to Mosby . And with it one more  black eye for Baltimore's government.

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