Florida Criminal Defense Lawyer Blog

Two of the six officers charged in Baltimore, Officers Edward M. Nero and Garrett E. Miller, are alleged to have committed the crime of false imprisonment against Freddie Gray. The prosecutor’s theory is that Gray’s arrest was unlawful because the knife that police seized from Gray’s pants pocket is allegedly legal under Maryland law. In charging documents, prosecutors allege, “The knife was not a switchblade knife.” Rather, the knife was allegedly one that folded into the handle, and thus, perfectly legal to possess.

The defendants argue that, contrary to what prosecutors maintain, there is no false arrest here because the knife was illegal to conceal. Nero’s attorney has requested to inspect the weapon. He wants to show that while not a switchblade, the pocket knife does have spring action, which would make it unlawful under Baltimore law. If that’s correct, then there is no case here and the only one who arguably committed a false arrest would be prosecutor Marilyn Mosby.

I don’t believe this case should hinge on whether the knife was lawful or not. The issue for me was whether the officers intended to falsely arrest Freddie Gray. In other words, if prosecutors can show that the officers knew the knife was lawful and that Gray had committed no crime, yet chose to arrest him anyway, then there may be merit to the prosecutor’s case. However, that’s not what was alleged by the prosecutor at the press conference when the charges were first announced. I have no reason to believe the prosecutor chose not to reveal her best evidence when addressing the metaphorically mostly blood thirsty, pitchfork carrying crowd.

Imagine that the police allege that you committed an extremely “high profile” violent act against someone. The victim’s attorney and the public are demanding that you are immediately stripped of your liberty and charged with the crime. Because you believe that you are innocent, you don’t want the charges filed by the prosecutor evaluating the case. You are praying that the screening process is fair. Immediately after the prosecutor’s alleged “thorough and independent investigation,” she decides to file charges against you. While questioning the fairness of the process, you then learn that the victim’s attorney donated thousands of dollars to the prosecutor’s campaign. He even served on her transition committee. Additionally, it comes to light that your prosecutor is married to a high profile councilman who represents the people from the jurisdiction where the crime allegedly occurred and from where the victim resides. Does this process seem fair? Does the prosecutor give off the image of impropriety?

The facts presented in the hypothetical above mirror those present in the high profile Baltimore criminal case involving six police officers, each charged with offenses relating to their alleged mistreatment of Freddie Gray. The prosecutor Marilyn Mosby, who made the decision to file serious criminal charges against the officers, did accept $5,000 in campaign donations from the victim’s family attorney William Murphy. He also worked with her on her transition committee. Her husband, Nick Mosby is a city councilman who represents the people from the jurisdiction where the crimes allegedly occurred. Additionally, the victim was one of his constituents.

Anyone who doesn’t think that, at a minimum, there’s the image of impropriety is either naive or being intellectually dishonest. If you, or someone you love were faced with similar facts, you’d be passionately crying foul. If the same allegations were made about a judge presiding over these defendants’ criminal case, the judge would most certainly have to recuse him/herself. I’m not suggesting that the charges weren’t warranted. They may have been, however, see some of my concerns: https://www.floridacriminaldefenselawyerblog.com/2015/05/baltimore-criminal-case-not-a-slam-dunk.html I’m also not suggesting that Mrs. Mosby can’t be fair. What I’m simply pointing out is that if there was another prosecutor who was more “independent” and free from the above described relationships, the process would have to be perceived as more fair. I still don’t see the down side in bringing in an independent prosecutor to review Mrs. Mosby’s charging decisions.

INTRODUCTION

I couldn’t believe it when I heard it. I was channel surfing and stopped on one of the major news channels. A well respected analyst passionately stated that the criminal case against the six Baltimore police officers was a ‘slam dunk.’ I immediately shook my head in disbelief. I know one thing is certain about this case. It’s not a slam dunk and convictions for all the officers is not a certainty. I join many of my colleagues in questioning whether the charges brought can be legally proven. Because all of the facts have not been released, I’m not suggesting that the charges aren’t warranted. I’m simply suggesting that based upon what has been released to date, there’s good reason to question whether the charges can be proven beyond and to the exclusion of every reasonable doubt.

LEGAL ANALYSIS

THE ALLEGED FACTS

Some new interesting developments have come to light concerning one of the jurors (Juror #17) in the most recent Jodi Arias jury trial. It’s being reported by CBS 5, a local television station from Phoenix, that the lone juror who held out for a life sentence, forcing a mistrial, sparing Arias from the death penalty, has an unusual link to Juan Martinez, Jodi Arias’ prosecutor. Apparently, Juror #17 used to be married to a guy who Martinez prosecuted in the late 1990s for murder. For some unknown reason, the charge was dismissed. Additionally, that same ex-husband was prosecuted for Burglary in May of 2000 and was sentenced to four months in jail. It’s alleged that while those criminal cases were pending, Juror #17 and the man being prosecuted by Martinez got married and had two children together.

WHAT DOES THIS MEAN?

INITIAL THOUGHTS

I know a lot of people are angry right now. To hear that Jodi Arias won’t be going to death row because of one lone juror (Juror #17) is too much for many to handle. Many on social media have suggested that, “There is no justice,” and numerous folks are even calling for the entire criminal justice system to be revamped. Some have even called for the judge to be prosecuted. The madness must stop. For those who want to stay angry and frustrated at the system, then stop reading now. This article is solely for those who are willing to set aside emotion for a moment and are open to another point of view. More popular would be for me to keep these thoughts to myself. I cannot.

First, let me make clear that how I feel about the verdict is irrelevant to what I have to say in this article. I may believe passionately that Jodi should be on death row. I also may believe that life without parole is an appropriate sentence. What I am about to share has nothing to do with what I believe should happen to Jodi Arias.

As a former burglary victim and father of three young children, I especially feel for Ray Allen and his family. I thoroughly understand why they’re demanding the arrest and maximum charge for all intruders who brazenly entered their home while they slept. What an extraordinary violation!

As a result of the media attention on this case, both the Coral Gables Police Department and the Miami-Dade State Attorneys Office have come under criticism for announcing that the most serious offense for which they could be charged is misdemeanor trespass. Some, including a few of my colleagues in the criminal arena, have erroneously suggested that there’s sufficient evidence to charge the intruders with burglary (a felony). They are mistaken and/or misinformed. Unless there’s proof beyond a reasonable doubt that the offenders intended to commit a crime like theft and/or vandalism while unlawfully in the home, the appropriate charge must be trespass. The law specifically requires proof to be more than mere speculation. Absent additional evidence, prosecutors and law enforcement officers’ hands are tied. A judge who was following the law would be required to dismiss burglary charges in this case, absent additional evidence.

So what’s the harm with overcharging them? One could make the argument that their conduct warrants the most serious charge possible. Why not just charge them with the burglary, as some of my colleagues have suggested, and then plea bargain the case down? The reason why that should never be done is because it would be unlawful. Additionally, the minute we allow law enforcement and/or prosecutors to overcharge suspects absent sufficient evidence is the beginning of the end for the criminal system. While it might be ok with you in this instance, imagine if it was done to you and/or someone you cared about under different circumstances. How would you feel if your careless driving (a mere traffic infraction that you could pay) turned into a reckless driving (a criminal offense, punishable by up to 90 days in jail) merely because the officer was upset with your attitude and/or didn’t know any better?