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by Peter Moskos

December 12, 2015

"There is no such crime as 'homicide by no seat belt'"

"Mosby is getting her rear end kicked in court. Not by a brilliant defense strategy, but by the facts. Facts that she could have discovered had she conducted herself professionally and ethically." So says Page Croyder, who retired in 2008 after 21 years with the State's Attorney's Office. My last post highlighted her insightful blog.

In police trials like this, people look for solutions to grand moral and historical issues. But criminal prosecution is about the guilt of an individual. If you're looking for answers to society's problems, or just someone to blame for all the wrongs in the world, a criminal trial isn't the right place.

Even among those who love the idea of prosecuting cops, ideologues who lap up and purr any time they hear "progressive" talk, I've yet to hear anybody actually defend Mosby's choices or competency. Even those who don't trust cops (sometimes for good reason) may have to accept that these cops are innocent.

Here is Croyder's take on the current trial of Officer Porter (the first of six officers to be tried). She wrote this op-ed in the Sun from back in May. But her similar blog piece throws some extra punches.

A later piece, also from May:
I already discussed Mosby's failure to use the important tools available to her that any competent prosecutor would have taken. I was willing to believe that this reckless failure stemmed from inexperience.

But her press conference was troubling in how far it strayed from a prosecutor's duty. She addressed herself to protesters across the country, embraced their cause, called for sociological change, promised justice for the young and for Freddie Gray.
These words, together with her demeanor, drew praise from newspaper editors, TV reviewers and many in the public. But they were the words of a politician, not a prosecutor. As a prosecutor her performance was awful, violating her ethical duty and generating suspicion that her charges were political.
Mosby is in the wrong office. Once elected as State's Attorney, she had to abide by ethical rules that she repeatedly ignores.... Politicians can lead wherever they choose. But unless prosecutors are bulwarks against politics in the criminal justice system, that system fails.
From June:
Death by no seat belt or medical delay would ordinarily be a case headed for civil court....

What to me remains most indicative of Mosby's mindset is her pursuit of the two arresting officers, who we now know for certain had nothing to do with Gray's death. On duty after Mosby's office urged greater crime suppression in that exact location, these officers justifiably pursued someone who fled from them on sight, and with ample legal precedent behind them, took him down and patted for weapons. By turning this into a crime, Mosby has told all police officers that they cannot do their jobs as they have been trained to do them.

Mayor Stephanie Rawlings-Blake and [now former] Police Commissioner Leonard Batts are taking all the heat for the crime spike since Mosby charged the six officers. No one locally wants to point the finger at Mosby. I will. It's mostly on her.
I said much the same thing. It's not just that cops were worried about making a terrible mistake and then being prosecuted. It's the legitimate fear Baltimore cops have of being criminal charged for doing their job correctly.

From October:
The decision of Judge Barry Williams to keep the trials of the six police officers charged in the death of Freddie Gray in Baltimore City demonstrates that judges, too, are human.
Legally speaking, Judge Williams should have moved the trials out of Baltimore.... If the top prosecutor, whose sole job it is to follow the facts and the evidence, was influenced by the unrest, wouldn’t the citizens of Baltimore be similarly influenced?
By deciding to keep the case in Baltimore, Judge Williams has created a substantial argument for reversal, something that trial judges try – or should try – to avoid for the sake of all parties.

Judge Williams has proved that he will work hard. A number of lazy Baltimore judges would have moved the case just to get out of the work this case entails. Nevertheless, those lazy judges would have been legally correct.
December 3:
In the first year of her administration, with a million issues to confront, Mosby is being paid over $238,000 to watch a trial. It doesn't take a genius to figure out why: she has staked her reputation on this case, and she wants the judge and jurors to know it, to influence them by her presence. Never in my two decades as a Baltimore prosecutor did I see the State's Attorney watch a trial. They had too much work to do.
December 10:
Mosby and her team lack the judgment, priorities and experience needed to run an effective prosecutor's office anyway. Mosby was a run-of-the-mill prosecutor who became a run-of-the-mill insurance attorney before election to the largest prosecutor's office in the state.
Here's her most recent post:
Her own probable cause statement did not support her sensational indictments. The autopsy report didn't either, despite it's legal conclusion (that was clearly influenced by Mosby.) And now the facts reveal that not only are the charges not provable beyond a reasonable doubt, but the officers are actually innocent.
In any event, there is no such crime as "homicide by no seat belt." If one wants to call it negligence -- despite other police departments (not to mention other transit vehicles, like buses) not using seat belts -- then fine. That's why the city paid the Gray family over $6 million. But there was no police brutality or a criminal disregard for Gray's safety.
When Mosby loses and the officer walk free, then what? Bad leadership has consequences.


bacchys said...

Whether their actions which led to Gray's death are a crime or not, they aren't innocent.

His welfare was their responsibility once they decided to detain and then arrest him.

Moskos said...

Yes, after Gray's arrest, his welfare was the responsibility of the police department and police officers.
And because of that, the Gray estate will receive $6 million.

Adam said...

Exactly. The officers screwed up. They were negligent. Whatever the internal policy, whatever the standard practice, BPD transport vans have seatbelts for arrestees, so officers should use them. And when an arrestee says he needs medical attention, the officers shouldn't try to guess whether he has "jail-itis." They should either stop and wait for an ambulance or take the person directly to the hospital without taking any detours.

And yet, if a jury believes all that, they're still a long way from (properly) finding anyone guilty of criminal homicide.

Moskos said...

I'm not even convinced they were negligent. Reasonable people can disagree, of course, but I'm not convinced they acted even "unreasonably," much less "negligently" (and, as you say, neither is criminally guilty.).

Speaking from experience, there is no point I would have done anything substantially different than Officer Porter. Period.

It's not reasonable to take every complaining person directly to the hospital. If police did, they would be accused of an intentionally work slowdown with multiple cops sitting in the hospital each and every shift. One cop per patient. Two each time the patient needs to go to the bathroom. Replacement cops every two hours.

[That rule wasn't in effect when I was there -- your prisoner was yours, at least until shift change. A simple change like that, requiring a new cop every two hours to guard a prisoner/patient (and I don't know if that rule was followed) can totally change police culture, on *not* bringing people to the hospital. If I was stuck some BS at Hopkins, it was on me. But if my *squadmates* have to sit in the hospital with him, they will bitch at me for my stupid prisoner. And that pressure could make me think twice about bringing somebody to the hospital. And I don't know if that's the case, but I bring it up to illustrate police culture.]

Of course if cops did every thing by the book, perhaps the book would be pushed to a breaking point and real change (like a M.D. in Central Booking) would actually happen.

Same way that if every drug suspect demanded a jury trial, the war on drugs would end in six months.

bacchys said...

When I was activated after 9/11 to guard a military post, I was constantly getting hauled in front of the Provost Marshall because I did things according to the SOP and the orders she issued out through the Desk Sergeant. I kept doing it by the book. I made others do it by the book. Sometimes she changed the SOP or issued new orders to get rid of the things she didn't like me doing, other times she just tried to bully me into doing things in violation of her own orders and SOP.

But I don't and won't work like that. There's no excuse for it.

Adam said...

Good points about the effect of taking everybody straight to the hospital. I guess I think that when Porter asked Gray if he needed a medic and Gray said yes, Porter should have gone a little further. "What's wrong? What happened? Is it an emergency?" It's reasonable for cops to try and figure out whether the prisoner is faking, but if he sticks to his story and says he's on the brink of death, then you have to respond as if that's true and get him immediate medical attention. I also like to think I'd have used the seat belt, but I have no idea. I honestly was never aware of a seat belt policy or whether there even were seat belts in the wagons. Usually the wagon guy just opened the door, the the arrestee climbed in, and the wagon guy closed the door behind him. If I'd seen the seat belt, I'd like to think I would have used it. But it's easy for me to sit here and say that.

I'm more troubled by the other officers sliding Gray into the wagon on his belly. But I think I get their line of thinking. If Gray was kicking and rocking the wagon, then putting him face down in leg shackles would prevent him from doing that any more. And the risk of him rolling around and getting hurt is much smaller in a partitioned wagon. He was probably wedged between the wall and the base of the side bench pretty snugly. But still -- bad idea, right?

When I say the officers were "negligent", I mean it in the civil law sense. If you think the Gray family was entitled to compensation, then you're in effect also saying you think the officers were negligent, because that's the standard for civil liability with this kind of unintended harm. For "unintentional torts", the plaintiff generally must prove negligence. And negligence is essentially synonymous with "unreasonable." One is negligent when one deviates from the standard of care expected of a reasonable person in the same circumstances. But again, the "gross negligence" required for criminal liability is much different, and I just don't see that in this case.

That Fuzzy Bastard said...

"there is no point I would have done anything substantially different than Officer Porter. Period. "

That is not a good defense of Officer Porter. It is just the opposite.

If you bring a perp to the hospital, and they didn't need it, you've wasted an hour or two. If you don't bring them to the hospital and they do need it, you've killed a man. Even if 99 of 100 perps are lying, the choice is obvious.

Moskos said...

The problem is nobody wants to or can work following all departmental policies. I don't know the military, but as a cop, I want to engage in unnecessary conversation with people on the street; I need to speak to residents with slang; I want to shoot the shit with a cop in the next sector when things are quiet. All this is prohibited. There are lot of things you need to do to as police officer to police effectively (or stay sane) that are prohibited by General Orders. You can violate General Orders more or you can violate them less, but you violate them. A cop can't insist on doing the job by that book because A) It's not possible and B) you don't want that job.

Moskos said...


It relates to the legal standard of "reasonableness," which often does come into play.

And you dream of a beautiful world that doesn't actually exist. It goes along with strong opinions about an occupation that seem far removed from the real world.

If you bring a suspect to the hospital who doesn't need medical care, you'll waste 4-8 hours. That difference -- between 1 and 8 hours -- matters tremendously. If you could bring every suspect to the hospital for a 1-2 hour check up, we wouldn't be talking about this. Hell, most could use a routine check up. But there just aren't enough cops to babysit every malingering prisoner.

There should be a better system. There could be a better system. But until there *is* a better system, the obvious choice is to call people on their obvious bullshit and get back to being on the street and answering calls for service.

Anonymous said...

Speaking from experience, there is no point I would have done anything substantially different than Officer Porter. Period.

Same here. Known malingerer with no visible injury, who is not articulating a specific medical issue, who can stand unaided and is breathing and talking? I would have thought the exact same thing as Porter. "Let's drop off the other prisoner and then get Gray medically cleared so we can take him to booking".

Moskos said...

That's two reasonable officers supporting the legally defensible standard of reasonableness.

Anonymous said...

Yeah, out here the difference is that we don't use wagons, we transport in patrol cars. We still don't just take people to the hospital just because they ask for it. We call the fire guys to swing by with their EMT's to do the basics first. Usually it doesn't go beyond that as the fire guys know the drill and call them out on their nonsense when "I can't breath" has normal chest sounds, stellar blood oxygen, etc. There's certain complaints, ie a pregnant woman complaining of abdominal pain, that you just know you're going to have to go to the hospital to get them cleared first because no way is the jail going to take them without paperwork.

But I don't know of any jurisdiction where the cops would take a twenty something year old frequent flyer with no apparent injury immediately to the hospital when that subject can't articulate what the injury or medical emergency is.

The more detail that comes out in this trial, the worse it looks for the prosecution. I think the medical examiner for the defense is presenting a much more plausible scenario than the state's. The state ME is saying between the second and fourth stops when you have Gray shaking the van, sitting up unaided, talking, etc. Remember, Donta Allen isn't picked up until the fifth stop and he heard Gray banging around in the van. That Gray was doing all that after he suffered that degree of spinal injury sounds nuts and there's multiple medical experts the defense have put on the stand who are saying that it's basically impossible. So it's likely the injury was incurred between the fifth and sixth stop, and on the sixth stop when they noticed Gray was injured they immediately called for medical.

I can't believe this case has gone this far. We're nowhere near probable cause for criminality. Beyond reasonable doubt isn't even on the godamn horizon.

Concerned citizen said...

"If you bring a suspect to the hospital who doesn't need medical care, you'll waste 4-8 hours"

My standard of reasonableness with regard to potential malingerers would be different for a high-crime city like Baltimore than for a low-crime city because of the urgency of having as many officers as possible on the streets--not tied up at the hospital--in a high-crime city.

Moskos said...

There needs to be a doctor in Central Booking intake. But nobody will pay for one.

That Fuzzy Bastard said...

Why yes, I do have strong opinions about the public servants whose salary I pay and who work for me and all the other private citizens. Just like I expect everyone to have opinions about teachers, politicians, and everyone else who works for the public. Every time you snark that you shouldn't have to put up with judgement from the public, you strengthen the case for much more aggressive civilian oversight of police. You are not a praetorian guard.

If you think there should be a better system for dealing with possible medical issues, that's great. There should be. And this case is a great teachable moment for fixing the systemic problems that lead to this death. But the lack of one doesn't mean you get to shrug your shoulders when a prisoner gets killed by avoidable police maltreatment.

Now, should Porter be the scapegoat for systemic failures? Depends on what the prosecution can prove. But "Everyone does it" is not a defense. If Porter did what any other officer would have done, and it resulted in an avoidable death, that isn't a case for freeing Porter. That's a case for prosecuting more officers.

Moskos said...

Prosecute them all! Kind of reminds me of this line: "How can our great society tolerate the continued brutalization of its citizens by crazed police? These criminals must be told that their civil liberties end when an attack on our safety begin." Though I'm only paraphrasing.

"Right person, wrong crime," goes the police expression. I've never thought that was right. Usually it's liberals who object to miscarriage of justice. Get a bad person off the street even if the person isn't technically guilty of the actual crime he was convicted of? Small price to pay for for the greater good and "sending a message" to those people.

Should Porter be the scapegoat for systemic failure? The answer is an unequivocal no. But don't worry, you've got five more potential scapegoats coming up.

As to comments in general, keep them specific to the trial please. I don't really care about general opinions on these threads.

That Fuzzy Bastard said...

Alright, I recognize that I'm taking up a lot of air in this seminar, so I'll say this and sit tf down and stfu.

First, a bit on where I'm coming from: I'm a teacher, so my job is a much-tossed political football. I constantly hear my colleagues complaining that people who aren't in the classroom should stop telling us what to do. My colleagues are wrong. We work for the parents, and they have every right to tell us what they want. We can get frustrated, we can point out problems in what they're proposing, but we should always remember that we serve at the community's pleasure, and if they think we're doing a bad job, then we are by definition doing a bad job. This is even more pointed when talking about security services, who have a long-standing habit of thinking themselves above the law. So arguments about the rear echelon or whatever are, to me, worse than meaningless.

It is ironic to me that you seem to think I'm a flaming liberal who wants criminals treated with kid gloves, because I think I'm just the opposite. I think the greatest mistake American liberalism made was how its reaction to the rise in violent crime was a hand-waving "These kids are just victims of an unjust system." Criminals need to be punished for society to be safe. And I think it is you and other chronic defenders of police who are repeating this ugly pattern, treating the criminals in your organization with kid gloves. Over and over, you defend cops who shoot unarmed suspects, or whose negligence and failure to do their job results in death, by saying that it's the system that's bad, and it's wrong to punish these individuals for a systemic failure. And that merits the same reply as 70s liberalism: Yes, the system should be reformed. But that only happens when the individuals who do wrong are punished.

If Porter complied with General Orders, then the General Orders urgently need changing. If he didn't, he should be convicted. If there's a problem with officers being pressured to ignore orders, that should be an urgent target for reform. But you don't get to let wrongdoers go because of that. It may be that the Prosecutor has charged the wrong person, or is pushing for the wrong crime; prosecutors do that quite a lot. But it is a basis for the law's legitimacy that when a person has been killed, someone needs to be held responsible. If you can't convict the gang boss who ordered the hit, you nail the guy who pulled the trigger; if you can't nail the guy who pulled the trigger, you nail the guy who stood lookout. You don't get to kill a man, or a child, and shrug that it's really no one's fault.

Adam said...

"It is a basis for the law's legitimacy that when a person has been killed, someone needs to be held responsible." Good Lord, no it is not. People get killed accidentally all the time, and absent evidence of negligence, the law does nothing. When someone is killed negligently, the civil law allows the victim's family to be compensated monetarily. But the criminal law is a different animal. When a person's negligent omissions contribute to another's death, the law is not quick to impose criminal punishment. And yet this simplistic "Freddie Gray is dead; somebody has to pay (with their freedom)" mentality persists, and it may well lead to these officers being convicted without consideration of the actual elements of the crimes with which they've been charged.