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  June 24, 2016

Would the Cops Be Convicted if #FreddieGray was White?


In the wake of the acquittal of Officer Caesar Goodson for all charges in the death of Freddie Gray, leading Baltimore Civil Rights Attorney A Dwight Petitt says Gray was a victim of "walking, driving, breathing, and living while black."
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biography

Attorney A. Dwight Pettit in 2004 won the largest constitutional rights verdict in Maryland history and one of the largest in the history of the nation ($105 million). Attorney Pettit who has handled some of the highest profile criminal and civil cases in the state has been in the private practice for four decades. He current serves on the board of The Real News Network

Jaisal Noor is a producer for The Real News Network. His stories have appeared on Democracy Now!, Free Speech Radio News and other independent news outlets. Jaisal was raised in the Baltimore-area, and has a degree in history from the University of Maryland, College Park.


transcript

Would the Cops Be Convicted if #FreddieGray was White?JAISAL NOOR:

A second Baltimore police officer has been found not guilty for the in police custody death of Freddie Gray. On Thursday Judge Barry Williams found officer Caesar Goodson- who transported Gray after he was arrested- not guilty of second degree depraved-hearted murder, and 6 other counts, the most serious charges facing the 6 officers charged with Freddie Gray's death. For in-depth analysis of the verdict and the resulting fallout we sat down with A. Dwight Petitt, a veteran Baltimore civil rights attorney who has practiced law for 4 decades, author of Under Color of Law, and a TRNN Board member.

Judge Barry Williams found officer Caesar Goodson not guilty of all accounts he was charged with. What’s your response? Is this a surprise to you?

A DWIGHT PETTIT: I’m disappointed but not surprised. Became very, very suspect that the state had the necessary evidence to support not only the charges but the necessary evidence to in fact keep their promise to the judge in terms of what they would prove. Particularly in relationship to the rough ride. There’s really no substantial evidence of a rough ride. In fact, some of the state’s own evidence and cross-examination negated that. And the judge seemed to rely very heavily on the fact of deriving the intent aspect from the rough ride in terms of second-degree depraved-hearted murder. So as I listened to the judge, and the questions that he asked the prosecution, as well as the questions that were raised during the trail, I became more in more suspicious of the fact that it was going to be an acquittal, even though I did hope and look forward to some type of finding of guilt, particularly in reckless endangerment, and misconduct in office, if not manslaughter.

NOOR: So the headlines today, all the way from the Baltimore Sun editorial board, to the FOP which you kind of expect, but even some activists in Baltimore that were calling on charges to be filed against- they wanted some type of measure of justice for Freddie Gray, last year there seems to be growing concern that there is no- that the evidence just didn’t exist at the time, and that this was a political prosecution. And you know, there’s been calls from the FOP for all the vested charges against the other officers to be dropped. How do you respond to that- those types of calls?

PETTIT: Well you’ve voiced several questions in one statement, so I’ll try to break it down. The- I do understand that there could be some credibility problems in perusing the other officers who’ve yet to go to trail because this was supposed to be the most serious case. And if you failed on the person who had administrative responsibilities, statutory responsibility or procedural responsibility- the driver of the van- to safe guard Freddie Gray, and you couldn’t convict him on that, you have to be very suspicious of whether any one else can be convicted. But the main fallacy- I have a different theory in terms of the fallacy of this case. And the difficulties- we have to look back and say ok, Ms. Mosby was acting under a degree of stress. The city was burning. It was due Monday morning quarterback[inaud]. She had to make a determination. She got homicide determination from the pathologist, the state’s medical examiner. But here’s the problem. The state’s indication as to where the injuries took place was always suspect from the beginning. And so you really have to go back to the medical examiners office and what they gave her to work with. You have to remember I’ve tried many of these police cases and a lot of the difficulties that we’ve had is always getting over the hurdle of what the medical examiner’s office concluded. And just in the West case that we’re getting ready to do now…

NOOR: You’re talking about Tyrone West?

PETTIT: Tyrone West. We had to go out and get out own pathologist from another state to examine the evidence. And I say that to say you really have to wonder, when the world sees on video and in living color that something is wrong with Freddie Gray before he’s put in to the van, and this is involving 3 white officers, and then when he’s put into the van, the camera in the van is broken, it’s not working, there’s no witnesses in the van, but the pathologist is going to center everything to what happened in the van. Thereby exonerating the 3 white officers, and laying all the fault on the 3 black officers. Now that was very, very questionable from the beginning. And then when you get into the testimony of the medical examiner, for example, saying the police testifying or investigator saying that she first was talking about the possibility of it having been an accident. Then confusion between the prosecution and the police as to whether it was criminal culpability or accident. And then you begin to create a whole maze of doubt of which goes to the heart of the criminal case. What is the heart of a criminal case? Beyond reasonable doubt. We’re not talking about a civil standard here of promise of the evidence. We’re not talking about a standard of clear and convincing evidence. In the criminal law, you’re talking about beyond reasonable doubt, which is the highest standard in the law. So when you have those types of things, which are in issue, before you even get to determining fact, being a judge or a jury, then they have problems from the onset. I have been saying from day one, seems to me there would have been much more credibility if you had made some determination as to whether or not any injuries occurred before he got in the van. You saw the man’s legs dragging. You saw that he was not walking. You know that the police officers had their foot or their knee on the back of his neck. Just to completely ignore that to me creates a whole issue of credibility in relationship to the standard that has to be met. And that’s beyond reasonable doubt.

NOOR: And so, even one of the state’s witnesses expressed the same concern, that Freddie Gray was injured before the ride and that’s what a lot of people have spoken to.

PETTIT: It’s the same old thing. Don’t believe your lying eyes. Remember that phrase?

NOOR: So that’s been a criticism of Mosby, that they made these- they pressed- they found these charges. They decided to press the charges and then they tried to make the rest of the case fit kind of after.

PETTIT: And if you look back on it in terms of Monday morning court, right? But if you look back on that, there might be some argument that in terms of the emergency situation in Baltimore City that she moved too quickly to respond to that rather than judicial way of really seeing whether all the charges match the facts. And whether for example she should have, at that point and time, returned a separate medical opinion in terms of a second determination or a second autopsy for that matter.

NOOR: So do you agree with the FOP that all the charges should be dropped?

PETTIT: No I think at this point in time, I tend to bend in that direction because I tend to think we don’t want to waste the tax payer’s money. And at this point and time the question of getting a conviction is an indicator. Might be sort of now. So I would say, I wouldn’t say at this point to drop the remaining charges but I do think it would be very prudent for her to – to have an extensive review to see whether there is any substance, credible substance which would allow her a conviction. If it’s not there, then you might have to step up and say- sometimes you have to learn how to punt. When you don’t have all the weapons.

NOOR: Another I think pivotal moment in the case was during the defense calling of the lead police investigator to the stand and the state and this lead investigator had a fiery exchange, where both accused the other of either ignoring the evidence or undermining the case. And these are two- it’s the police investigation and the state prosecutor which normally work together on a day-to-day basis. How important was that and what does that tell us about the unprecedented nature of this prosecution?

PETTIT: This is a very difficult prosecution in the first place to prosecute the police. Believe me, I know. I get a lot of credit for the million dollar verdicts that I’ve won, the multi-million dollar verdicts that I’ve won. And civil actions. But people never discuss- aware the ones that I’ve lost. It’s one of the most difficult prosecution efforts to in fact engage in, is prosecute the police. When I say prosecute I mean civil or criminal. And because that’s one of the reasons why they call or a lot of jurisdiction that call for independent prosecutors. People who are removed, prosecutors who are removed from the in-house relationship that they have to enjoy with the police for their day to day efforts in terms of criminal justice system. And so the police are not ever cooperative. And they always protect their own. They circle the wagons around the so-called blue badge of silence and what have you. And so you’re expectations for them to cooperate have to be very, very low. So in an instance like this when she’s relying on the police department in terms of the prosecution in terms of the prosecution of police officers, that’s a very, very difficult thing to do. That’s why I’ve renounced some of the ramifications as they relate to the statements she made on the courthouse steps, that she had her own investigation, number one, and number two, that she had the sheriff’s office doing an investigation. That sort of gave her some sort of- I’m talking about her pronouncements now.

NOOR: It’s important because in Maryland, only police can investigate other police. You know, if the police weren’t the investigation, the sheriff’s weren’t doing the investigation, then it was just the state’s attorney doing the investigation. Does that sort of undermine the credibility of the, of the state’s case?

PETTIT: Well I don’t know if it undermines the credibility of the states case, because in some instances the state might be forced to rely on it’s own personal because there are obviously have hostility coming from the police department. On the civil side of it, I’ve had the opportunity in my office to seek help from the prosecutors when they prosecuted certain police officers; we’ve received help from them in terms of civil actions, of civil action. But otherwise there’s usually a very, very small expectation of assistance from the police department. So I don’t think it undermines their credibility to in fact have their own office doing that investigation. The question is whether or not that’s undermined in relationship to the future charges, by her saying that we incorporated the sheriff’s office and the sheriff’s office saying they didn’t really participate, that might have future ramifications in the upcoming chargers or the upcoming trials if they were to take place.

NOOR: So previously, in our last interview, you talked about how the system is stacked through various measures and legal precedents to protect law enforcement in these types of situations. Now people are sort of looking forward. What needs to be changed? What laws can be changed? We obviously can’t just change legal precedent, which is what I guess a lot of this relies on. But if people want to organize around certain laws or certain rules, what needs to be changed to make it easier to prosecute?

PETTIT: Well first of all we’ve seen this attack in terms of the police officers bill of rights where they have all these protections. Where they’re afforded protections as to 10 days before they have to make a statement and having the opportunity to have counsel and what have you before they make a statement and being able to sanitize their statements. This is very, very unproductive. Police officers should enjoy the same thing as all citizens and that’s the right of the 5th amendment. All these things extended to them and the police officers bill of rights is to negate proper investigations when alleged crimes have been committed. Of course I’ve always argued that these caps which is back to the civil remedies, but I’ve always argued if you didn’t have these caps protecting the city or municipalities from real damages that they would move to correct a lot of the problems that we see in municipal claims, or claims about municipalities. And you know, I think of course that laws have developed to such an extent in terms of the protection of police officers through the judicial processes, the public can’t do anything about that. Other than verbally talk about it. In terms of legislative actions whether they be state or whether they be federal. But the laws in terms of the development of court laws, case law, case-by-case basis, which says that you for example can’t tell second guess the police officers. Those questions are irrelevant, immaterial, objectionable. A lot of different things we try cases in court where the courts have ruled to such an extent to almost isolate and insolate police officers in terms of judicial protection. So you have things that people can do in terms of the legislative process. I mention earlier in terms of being able to get an independent prosecutor or an independent office that is not working with the police on a day-by-day basis.

NOOR: So I wanted to get your response to a criticism of that. I asked young activists in Baltimore about that and- so some activist actually oppose an independent prosecutor because they say that’s what Mosby was elected to do. So if you have another prosecutor, that’s another level of bureaucracy that’s just going to keep you know- it’s just going to add more layers to the system. They say it was Mosby’s job to do this. That’s why she was elected to do this. To prosecute police. That she should be doing a better job of that.

PETTIT: Well you know, that is a very arguable issue, argumentative, because she might have been elected to do that in terms of her campaign because let’s face it- across this nation and particularly in Baltimore City we haven’t really had prosecutorial actions in terms of police. So she was sort of wadding into brand new water of prosecuting. Not only as to what the police did, but their criminal responsibility for what they did not do. This is why this had potential to set national precedent. But you still have to recognize the real world. And in the real world, they work with the police officers on a day-by-day basis. The interrelationship between the police department and the prosecutor’s office is undeniably a very cozy relationship because of what they do in terms of fighting crime. So I don’t really see it being another layer for the legislative body to create an independent prosecutor- they did so in terms of the state prosecutor, which is independent from the attorney general’s office to investigate political corruption. And they’ve been doing that for up to at least 10 years now. So what is the, what’s the additional layer or additional barrier or haze that’s going to be created because she will be established law to give an independent prosecutor who’s not working with the police and has the same powers as the state’s attorney to in fact prosecute. I don’t see that being a barrier to a successful prosecution. I don’t see that taking away from the state attorney’s office.

NOOR: Another argument against an elected special prosecutor is that the FOP is going to have tons of money to sway that election and get someone that’s going to favor protecting police rather than prosecuting them. How do you respond to that?

PETTIT: Well, it doesn’t have to come through an elected office. I’m using that as an example. The state prosecutor in terms of political activities. That’s a gubernatorial appointment. And I don’t know whether there can be as much application of independent power through the FOP to gubernatorial appointment as it is to somebody running for election. So I think that might be to a degree of isolation that the state prosecutor has. The one that’s been created. And it’s worked pretty successful in terms of political corruption.

NOOR: And finally stepping back a little bit, I think a question that is sort of on people’s minds is, if Freddie Gray wasn’t a poor black man from West Baltimore, if he was a rich white woman from Roland Park, that died in police custody in a similar way, would the courts have treated her, would the justice system would have treated her differently?

PETTIT: I think most definitely. We go back to what I’ve stated. We go back to the initial aspect of it. And that’s the coroner’s report, the pathologist, the Maryland state medical examiner. That to me is where it all starts. Let’s look back historically. You’ve got the Anderson case. Man picked up and dropped on his head. Killed. Police custody. No indictment. We can go back to the West case. Man beat to death by 10 or 11 police officers. No indictment. But in both cases, you have to really look at the and question the medical examiner’s report. In the West case, the medical examiner said, because of the hot temperatures in July, and preexisting medical condition, and the man had no preexisting medical history…

NOOR: That his family knew nothing about.

PETTIT: Right, we conclude that it was not homicide. Anderson was very similar. I’ve had several cases where that initial medical examination determination- and now we see through the Gray trial how confusing and how open to criticism that examination process is. And remember, police are sitting right in the autopsy room. Right where the doctors are doing the autopsy, you’ve got seats around and the police officers come in and make comments, observe, watch, and whatever. That’s one problem with it. But overall, you know, the whole situation would have been different in my opinion had it been a white individual be it male or female taken into police custody and they’re healthy and they come out dead. Somebody would have gotten to the bottom of that either through and independent investigation or the attorney generals office’s investigation or the US attorney’s office is still in this. Remember now, there’s still a federal investigation going on. Although after this, I’m not sure how far the feds will go in terms of the Gray situation. But the whole process needs to be in my opinion, reexamined as to whether or not this investigation was racially biased and racially slanted. I guess it wouldn’t be so obvious if you didn’t have the 3 white officers taken down Mr. Gray and the 3 black officers involved with the transportation of Mr. Gray. 3 white officers were charged with misdemeanors. 3 black officers charged with misdemeanors and felonies.

NOOR: So do you think that is intentional. That this case was set up to protect the white officers?

PETTIT: Well, I’m not doing the conspiracy thing. Cause I’m saying what she had to work with given what she was given from the medical examiners office, you can almost go back and start the problems with the case in terms of the medical examiners office as to- I mean- I don’t know I don’t sit through the trial everyday, but did they even address the possibilities of what injuries occurred when the takedown took place. You got to remember, nor did judge Williams ever talk about the issue to my recollection that probable cause was established in the first place. You might talk about there’s articulable suspicion in terms of Terry vs. Ohio, reasonable suspicion. You might talk about the Illinois case in terms of looking at a police officer and making eye contact. But the issue has never been resolved and none of the public to my knowledge unless someone corrects me, ever get any information that why is the man down on his face with knees in the back of his neck, when I thought they caught him, he surrendered. And so what was the probable cause that put all of this in motion. I don’t think anybody’s ever answered that. Through all of this litigation and this process, what was the probable cause for him being arrested in the first place. We didn’t talk about the little raggedy knife because judge Williams didn’t really get into that. So if you had no probable cause, something is wrong with the whole proceeding and not saying why is he here? Why is he being arrested? Why is somebody on his back? Why is somebody kneeing him in his back? For what? Looking at the police? That’s what it boils down to. And that’s the question, with all of the history of police brutality, that’s the question the African American community’s asking. Back to your question, would this been a white person, would it have been treated like that? Would a white person be chased because he was looking at the police? No. Would a white person be apprehended and thrown on his face and a knee being put in the back of his neck, when he had not committed any crime? No. Would a white person have been put into the van, handcuffed and chained, and then possibly be given the rough ride, not able to protect himself in the van. No those things would not have happened. And then, I’ve already said in terms of the medical examiners. All you have to do is go down the line and say what would not have happened to a white person? These things would not have happened to a white person in America. This is the result of walking, driving, breathing, and living while black.

End

DISCLAIMER: Please note that transcripts for The Real News Network are typed from a recording of the program. TRNN cannot guarantee their complete accuracy.



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