Posted on 05/06/2015 4:59:25 PM PDT by 2ndDivisionVet
Defense files motion for independent examination of Freddie Gray’s knife.
[NOTE: This post has been updated with a relevant statement released yesterday from Prosecutor Mosby’s office, and embedded at the bottom of this post.]
As Prosecutor Marilyn Mosby continues her efforts to convict six police officers of serious felonies–including depraved-heart second degree murder and multiple counts of manslaughter–in the death of Freddie Gray continue, those charges are already being subject to challenge, and looking increasingly vulnerable.
The Baltimore Sun reports that the defense attorney for Edward Nero, one of the officers charged in the death of Freddie Gray, has filed a motion for an independent inspection of Gray’s knife, which formed the basis for the probable cause underpinning Gray’s arrest. (h/t commenter MouseTheLuckyDog)
The motion is embedded at the bottom of this post.
Arrest Timeline: Charges Against Officer Nero, In Context
It is perhaps worth stepping through the timeline of Officer Nero’s participation in the arrest and transport of Freddie Gray, and juxtapose that against the five criminal charges brought against him. (Note: we’re recounting the timeline “facts” as reported by the New York Times.) All events occur on April 12, 2015
8:39:12 AM
Officer Nero, Lieutenant Brian Rice, and Officer Miller are on bike patrol in a high-crime/drug area of Baltimore, and spot Freddie Gray–a known convict and career street-level drug dealer–acting suspiciously.
This raises the reasonable suspicion needed to justify a “Terry stop,” (commonly known as stop-and-frisk), and the officers seek to do so with Freddie Gray.
(For more details on a “Terry stop,” see Was Freddie Gray’s Arrest Lawful? Almost Certainly.)
Gray observes the officers approaching and flees their lawful stop, further establishing reasonable suspicion. The officers pursue.
8:38:52 AM
Freddie’s flight from the lawful Terry stop lasts only 40 seconds before the officers bring him to a halt.
(Humorously, the New York Times describes the end of this flight and pursuit as Gray “surrendering to” the pursuing officers. I guess the NYT forgot how to spell “captured by.”)
8:40 AM
The officers prone out Gray and handcuff him, all perfectly lawful and consistent with securing the safety of a Terry stop.
Prosecutor Mosby claims that at this point Gray requested an inhaler, and was not provided one. She does not indicate her evidence for this claim, nor whether the officers or Gray even had an inhaler in their possession that they could have offered Gray, nor whether the officers have a legal duty–or are even medically qualified–to provide medical assistance to a suspect.
Raising Gray to a seated position, Officer Nero (along with Miller) observes a pocket knife clipped to Gray’s right pocket. The knife is secured and examined, again entirely consistent with securing a safe Terry stop.
Upon examination, the officers observe that the knife employs a spring-assisted mechanism, and conclude that it reasonably falls within the definition of an unlawful knife under Baltimore City Code §59-22, which provides in relevant part that:
(a) Possession or sale, etc., prohibited. It shall be unlawful for any person to sell, carry, or possess any knife with an automatic spring or other device for opening and/or closing the blade, commonly known as a switch-blade knife.
The knife thus established the probable cause necessary to escalate the Terry stop to an actual arrest, and the violation of Baltimore City Code §59-22 is specified for this purpose in the formal Statement of Charges:
Officers Miller and Nero put Mr. Gray in a seated position and find a folding knife, which Ms. Mosby said was legal under Maryland law. The officers charged Mr. Gray with illegal possession of a switchblade. The officers then placed Mr. Gray down on his stomach and restrained him until the police van arrived. Ms. Mosby said Lieutenant Rice and Officers Miller and Nero “failed to establish probable cause for Mr. Gray’s arrest as no crime had been committed.”
Notably, on Friday May 1, when Prosecutor Mosby publicly announced the charges against the six police officers, she was reported by the New York Times to have explicitly stated that there was no probably cause for Gray’s arrest because the knife was legal:
Ms. Mosby faulted the police conduct at every turn. The officers who arrested him “failed to establish probable cause for Mr. Gray’s arrest, as no crime had been committed,” she said, describing the arrest as illegal. Officers accused him of possession of a switchblade, but Ms. Mosby said, “The knife was not a switchblade and is lawful under Maryland law. (Emphasis added.)
Since then, however, the investigative Task Force assembled by the Baltimore Police Department has concluded that the knife, was, in fact illegal in Baltimore, as reported by the Baltimore Sun yesterday:
While Mosby said Friday that the officers had made an illegal arrest because a knife Gray was carrying was not a “switchblade,” a violation of state law, the police task force studied the knife and determined it was “spring-assisted,” which does violate a Baltimore code [§59-22]. (emphasis added)
For more details on all of the above see Legal Insurrection’s earlier coverage here Freddie Gray’s Knife – Why is Prosecutor Claiming Unlawful Arrest? and here Confirmed – Freddie Gray’s Knife WAS Illegal.
The conclusion of the Task Force that the knife in Gray’s possession fell within the unlawful category could theoretically be reversed sometime in the future.
The organized Task Force composed of senior department officers with access to specialized knowledge and the opportunity to examine the knife in complete safety and at their leisure concluded, as the arresting officers had, that the knife was unlawful. That makes laughable any argument that the officer’s own conclusion under stress to that effect was unreasonable on its face.
And if the arresting officers perception of probable cause for the arrest was not unreasonable, the arrest was not unlawful. Period.
To get back to the timeline, at this time the police van arrived, and Gray was placed in the van. Video suggests that Officer Nero assisted in the placement of Gray in the vehicle.
The New York Times feels obliged to note here that Gray was not buckled into his seat. While there may be a perfectly reasonable explanation for why this was not done, it seems irrelevant to Officer Nero in particular, as doing so would presumably be the van driver’s responsibility (Officer Goodson), not Nero’s.
Presumably by this point several minutes had passed, given all of the action just described.
8:46 AM
After the van travels one block Officer Goodson stops the van, purportedly at the direction of police Lieutenant Brian Rice. Along with Officers Miller and Nero, Rice removes Gray from the van, place him in leg restraints, and return Gray to the van, placing him on the floor.
There are many lawful reasons why this conduct may have occurred. Leg restraints are commonly used only when a suspect remains tumultuous even when handcuffed, and may present a risk of physical injury to himself or others if he is not further restrained in this manner. Reports that there was another passenger in the van who reported loud noises from Gray’s compartment consistent with a tumultuous suspect would support such a scenario.
In any case, Mosby makes no claim that the use of the leg restraints was unlawful.
On Such Evidence, Mosby Lays Five Criminal Charges
This encompasses the entirety, according to the NYT timeline, of Officer Nero’s involvement in the arrest and transport of Freddie Gray.
On the basis of those facts alone Prosecutor Mosby believes she can convict Nero, beyond a reasonable doubt, of five criminal charges, including:
Assault in the second degree (good for 10 years in prison)
Assault in the second degree (2nd count, good for another 10 years)
Misconduct in office
Misconduct in office (2nd count)
False imprisonment
Relevance of the Knife to Unlawful Arrest Charges
The alleged unlawfulness of Gray’s arrest would seem to be essential to the false imprisonment charge brought against Nero. (The same charge was brought against Lieutenant Rice and Officer Miller, the other two officers involved in Gray’s Terry stop and arrest.)
As described above in some detail, however, it is clear that it was reasonable for the officers to conclude that the knife fell within the scope of Baltimore City Code §59-22, and was therefore unlawful to carry within the city limits, especially given that the formally organized Task Force has come to the same conclusion.
Officer Nero’s Attorney Files Motion for Inspection of Knife
Now Marc Zayon, Officer Nero’s attorney, is seeking an independent examination of the knife recovered from Gray at his arrest. His motion explicitly notes, in a clear reference to Mosby’s Friday statement to the media, that:
The State baldly asserts that “the knife was not a switchblade knife and is lawful under Maryland law.” The State further suggests that the Defendant “failed to establish probable cause for Mr. Gray’s arrest as no crime had been committed,” and accordingly the Defendant “illegally arrested Mr. Gray,” resulting in the charges herein.
The contention of Nero’s lawyer is, naturally, that the knife does in fact fall within the unlawful category, that Nero’s arrest of Gray was lawful, and thus that any charge against Nero premised on unlawful arrest (e.g., the false imprisonment charge) must be dismissed.
Increasingly Unlikely Either Serious or Lesser Charges Will Stick
There never seemed to be much of an evidentiary basis for the more serious criminal charges brought by Mosby against the officers–the second degree depraved heart murder and the multiple counts of manslaughter, in particular. Thus Mosby’s charges were always exceedingly vulnerable from “the top.”
Now it seems that even the lesser charges may lack even the minimal evidentiary basis to survive a probable cause hearing that due process demands the officers be entitled to, making Mosby’s charges vulnerable from “the bottom.”
I suppose only time will tell whether any of the charges whatever will remain of those Mosby brought against these six officers once due process has had its day. Personally, I’ll not be placing my bets on Mosby.
It’s Getting Hot In Here: For Mosby
I expect, ladies and gentlemen, that things are going to start to get interesting.
Keep a browser tab opened right here at Legal Insurrection for ongoing news on the debacle I expect to be the Freddie Gray-related prosecutions.
As promised, here’s the embedded motion:
[NOTE: This post has been updated with a relevant statement released yesterday from Prosecutor Mosby’s office, and embedded immediately below. A further discussion of the implications of Mosby’s statement can be found at: More Mosby: “Evidence Cannot Be Released Before Trial”.]
This is an awesome posting. It shows me that probable cause was so obvious that I think these bogus charges will be tossed out very soon in the examining hearing. What a novice prosecutoress. She must be dumb as a fence post. This case is over. Let’s get the national guard back out there and start protesting property and innocent people again. This case is a belly laugh, knee slapping joke.
Manufactured case.
It seems the only question will be, “how bad will the SECOND Baltimore riots be after all six officers are found not guilty?”
Hey Mary, FU!
You’re just another black cop-hating, political power-seeking shister Maryland/Baltimore Democratic machine hack.
If you had any integrity, you would have handled this case like McCollough did in Ferguson, MO, sending it to an impartial grand jury to see the truth through reviewing the written reports, films, and conducting interviews of people under oath.
I don’t think that I knew any of your family, but I did know some from prior Democrat and Communist political families in Baltimore, the ones who made Baltimore the cesspool that it is now.
Instead of becoming a real savior of Baltimore, you have put your own personal aggrandizement and political aims above enforcing the law equally. You are nothing but another black hack politician using the misery of the streets to advance your racially-oriented political career.
Thanks to you, about 200 businesses, the majority owned by minorities, have been burned to the ground and/or looted of all their goods, thus putting honest, hardworking people of all colors and ethnic/religious backgrounds out of work.
You should really be proud of yourself. As OCommie, our president, would say: “YES WE DID”!
What ever happened to malicious prosecution ?
Mosby doesn’t want to litigate this case in the media........a little late for that! What a moron.
When the knife charge holds up there will be only one person guilty of false arrest, Ms. Mosby.
The issue at hand here has nothing to do with releasing the evidence "to the public." The attorneys for one of the defendants in this case have filed a motion to compel the prosecutor to turn the evidence over to them. I never went to law school, but I know that you don't answer a motion in a docketed court case by releasing a public statement claiming that you can't ethically do something that nobody is asking you to do anyway. You answer the motion in a response to the court, and if you don't have any arguments to oppose the motion then you should just admit that you are an incompetent affirmative-action hire, drop the charges, and find another career.
Outstanding post. Missing in the timeline are the numerous communications between the officers, dispatch, and EMt’s as they tried to coordinate medical assistance while Gray was enroute. The audio tapes are Very enlightening. I look forward to the defense blowing Mosby out of the water.
Excellent analysis. This case is built on a wishful lie. I really think we have a civil rights “1983” case big time by these public servants against this stupid bitch. Let’s watch!!
Once could say “dumb as a fence post” but I see such a pattern of denial in the black community that I believe it’s the groundwork for the assertion that blacks need a separate legal system that will treat them fairly.
Look at Ferguson and the way anger replaced and denied evidence. And even after evidence was shouted from the roof tops, many in the black community act as if Ferguson was proven to be senseless violence against black youths.
The prosecutor in the Gray case doesn’t “lose” if she loses the case because she already said the “right thing” to the enraged mob and that will be recorded as fact. The resulting narrative will be “Even though evidence proved he was arrested for false reasons, the police got off scott free for killing him.” and the fact that she’s a prosecutor will be used as credibility to “prove” that the black community needs it’s own legal system. They are agitating to leave “rule by law” in favor of “rule by rage” and I think they want us to “give up” and give them their own legal system to escape the riots. my 2.
Wow....what a fluster cluck this is turning into....
I can only hope someone in the DOJ will sit with this idiot and find a way out of this circus...before Baltimore burns to the ground....when all these charges get tossed...
There must be at least one competent federal attorney left at DOJ...
Sharia?
Yes . I sure think you are on to something. What we have is “rationalization” for horrible community conduct, unfortunately by the blacks, In each case of thug attacks on authority we have a false narrative to try to obliterate truth with society cowering because of the fear of being called “raysess”. I’m sick of it. There are good blacks who see the truth but they are ignored by the compliant media to the false narrative.
Yesss!! Let them use sharia!! Those Black women won’t like that but all the men are in prison so the woman have a free run!!
bookmark
Good heavens ... this would be scenario even the Klan couldn't envision in their wildest delightful dreams.
Will they clamor next for separate water fountains, bathrooms, and seats at the back of the bus?
Women? Since when do women have rights under Sharia Law?
This prosecutor is nothing more than a gangtsa bitch in a business skirt. She’s little more removed than the thugs who tore their own city apart by dint of the fact she can read and write. Nothing more. When I saw a picture of her, with her arms akimbo, head coked to one side and that insolent, ‘’ghetto’’ smirk on her face I immediately knew who and what she was. This case is going to evaporate like an ice cube in a micro wave.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.