“The Walking Dead Defense”: The Racist Logic Police Unions Used In The Freddie Gray Case

As the trial board for the van driver in the Freddie Gray case shows, police unions will stop at nothing to protect their own. Systemic change is required to deter future tragedies

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By Lawrence Grandpre

In Fall 2017, New Timbuktu Creative Director Lawrence Grandpre attended the long delayed administrative disciplinary hearing (aka “trial board”) for Caesar Goodson Jr. , the van driver in the Freddie Gray case. The following is a piece written in the aftermath of trail, where Goodson was found to not have violated Baltimore Police Department (BPD) policy, and thus was allowed to keep his job.

Introduction: When Logic Fails

When you deal with policy analysis, there are certain frameworks and metrics which are taken for granted…

Logic, thorough analysis, and graspable conclusions, are supposedly the tools of the trade.

And then you see something which forces you to take a step back—Something you knew was coming, even predicted—but still can’t quite find the words to explain in rational terms—

Instinct and prudence look for words like data, empirical evidence, and expert

But the words which come to mind during this trial board hearing were “Twilight Zone, “Kafkaesque”, and “The Upside-down”.

For the public, the issues at hand are simple:

What happened?

Who is at fault?

Will anyone be punished for a young man’s death?

Can I trust that my brother, son, daughter or mother can go into a Baltimore Police Department van and come out alive?

However what I saw had little, if anything, to do with these simple questions, and instead, showed how years and years of concessions by lobby and state laws can warp a theoretical accountability hearing into something…different.

Something attempting to mirror the look and feel of a criminal court but lacking the basic standards and protections that make for an (at least somewhat) legitimate process. 

Simply put, there is nothing more brain-scrambling than a courtroom completely full of and completely run by cops, and I fear I might not be able to find the words to fully describe how odd these proceedings were.

But as the records will not be made public, it seems someone should tell the story of what happened there, so back to what I saw and feel was most relevant for you to know.

 

Real Problems, Kangaroo Courts. The Police “Trial Board” Explained

 

Most regular citizens expect their interests to be represented in some way,but this is not the central design of the trial board held for Goodson, the van driver in the Freddie Gray case.

The person attempting to prove that the accused cop violated the rules, is also a cop (a lawyer for the BPD who is representing the department leadership).

This trial board is technically an appeals board. The police officer has already been found at fault by a police leadership discipline tribunal and has already been given a punishment.

Many police officers choose to accept discipline. Those who don’t are able to appeal to a trial board which consists, by law, of only other police officers.

While this does not mean a cop can never be found in the wrong by a trial board, it skews the playing field about how trial boards are conducted (which was clearly demonstrated in the Goodson trial).

While the average citizen expects someone to represent the interests of the community, both sides in this trial are representing the interests of the police department.

This was most evident in the opening statement of the  “Respondents” (i.e. the Defense), who said “I like this trial board because you all have experience on the street,”  but also the “Investigator’s” side (i.e. the Prosecution) who said that the actions of Caesar Goodson, Jr.  may “threaten the sanctity of the profession”.

This reflects the perverse nature of the “trial board strategy”, where there is a proverbial “race to the bottom” (or perhaps more accurately described as a, “race to the thin blue line”) where both sides attempt to appeal to a trial board’s charge, to protect the department.

What gets lost in translation is that the purpose of  “protecting the department” and upholding accountability is to protect the people who make the department possible, the citizens who pay police salaries and are subject to whatever forms of policing these trial boards permit.

Skewing the Playing Field: the FOP vs. Internal Affairs

The Baltimore City Police Union, FOP lodge 3, funded the defense of the van driver in the Freddie Gray case. Despite the BPD receiving nearly $ 500 Million per year, it was clear its internal affairs department was not match for the well funded FOP and its cadre of lawyers, experts, and private detectives.

As I struggled to get beyond the fact that both “sides” of the issue were cops, it also became abundantly clear that these two sides were not equal. While both were cops, the “Defense” is clearly situated to appeal to the trial boards more effectively than the “Prosecution.”

No officer wants to discipline another cop, in this case even fire them, unless they feel they absolutely have to. There obviously can be no controlling of “prior knowledge” in a trial board, as these cops will have discussed the facts of such a high profile case extensively, and likely have formed some of their own opinions. To counter this lack of balance, the prosecution would have to take a more measured approach to witnesses…

The Defense, however, was not restrained by any of these concerns, and proceeded to exploit their inherent advantage throughout the trial. In terms of resources, the Defense had a high powered lobbyist serving as their lawyer, who along with their several assistants, used multi-media powerpoint presentations to provide their evidence to the jury (this was in stark comparison with the dry-erase markers and poster board used by the Prosecution).

Additionally, the Defense had over two years to get their case ready and test it out on the various criminal cases in which the police officers involved in the Freddie Gray case were acquitted. The police union had already paid independent medical experts to claim Freddie Gray died in a way which no officer could have prevented or responded to differently, as well as  private investigators to corroborate the timeline presented by Officer Goodson. The Prosecution, however, was challenged by uncooperative witnesses, whom were cops seemingly reticent to be seen as working too closely with “Internal Affairs.”

Finally, the standard for evidence and protocol was so loose as to be almost a joke. For example, as the Defense pointed out in an attempt to offer explanations which cast Goodson in a favorable light, hearsay ( i.e. unsubstantiated conjecture) is admissible evidence in a trial board. As it is not a courtroom and those voting are not judges or lawyers, motions were generally debated between the two sides with the chair of the trial board seemingly deciding which objections were to be deemed legitimate and which ones were not, as a matter of caprice.

Sometimes, Lawyers Just Flat Out Lie

Image result for Sean Malone baltimore lawyer fraternal order of police
Fraternal Order of Police lawyer Sean Malone would likely say he simply provided a vigorous defense of his clients. Other would describe his tactics as underhanded and duplicitous.

The Defense’s attempts to take advantage of this dynamic with its objections was far more aggressive than those of the prosecution, leading to one of the more outlandish moments of the trial…

The prosecution’s side called officer Gradhill to the stand to testify about what he heard on the radio that day, intending to show there was some talk about the hospital “Bon Secours”, which would have indicated that there was some knowledge that Freddie Gray was hurt and thus needed to go to the hospital, thus implicating Goodson’s failure to take him.  When the officer was somewhat evasive in the cross examination, the Defense sought to claim that what Gradhill heard on the radio was not, in fact, Bon Secours, but “Box Scores”.

I sat dumbfounded as the Prosecution failed to object to this.

Having watched the Officer Porter criminal trial, these seemed to be shenanigans that would not fly in a criminal court.

While this attempt was eventually shut down and re-directed, it shows how the proceedings in the trial board “courtroom” can appear like folks are making it up as they go along. To be sure, this line of questioning is within the rights of the Defense, but smacks of the kind of sleight of hand which threatens public faith that the legal infrastructure of these trial boards is solid enough to create any kind of justice.

The “Walking Dead” Defense

In trying to create sympathy for the responding officers at Freddie Grays arrests, the defense frame the gather crowd as inherently hostile, resorting to tried and racial bias tropes of imminent violence against cops, including showing a prisoner allegedly biting a police officer.

To say that throughout the trial, the Defense constantly blew the “cop safety” dog whistle would be an understatement. Starting with their opening statement, the defense consistently asked the trial board to “see what the officers were seeing”, and proceeded to paint a dystopian picture of the West Baltimore neighborhood where Freddie Gray lived.

They described the Western District as “the most violent district in the most violent city in America”, and talked about the crowd that formed around the Freddie Gray arrest in very specific terms. While they claimed to be objective by reading the transcript of what the officers said, this tactic still accomplished its intended purpose of putting the judges in the desired state of sympathy for Officer Goodson based on the perceived threat to him.

“Gilmore homes is emptying out,” was one of the phrases repeated often by the officers. In an interesting twist, it was the Defense who showed the now-infamous videos of Freddie Gray being arrested, crying out in pain as he was loaded into a police van. They claimed this showed the restraint of the officers who–among what they described as a “heated” crowd–were able to efficiently usher Freddie Gray off to jail. The framing of the incident was clear; the residents of Gilmore homes were described as an inherent, latent threat, and their judges were asked to perceive police actions in the context of people facing the threat of violence.

It is interesting that this frame of reference was never applied to Freddie Gray. Since the Prosecution’s case did not address justice for Gray, they never presented the idea that Gray may have had a legitimate fear of encountering violence in jail, creating a sympathetic lens through which to view his resistance on the scene.

Instead, the exact opposite was allowed to happen, to the point where the Defense was able to frame the narrative almost absolutely in terms of the threat to cops. This was never more clear than when the Defense presented a video (ostensibly body camera footage from early May 2015) where they claimed that a police officer was bitten during an attempt to seat belt a prisoner in a BPD police van–complete with a still photo of what looks to be a bite mark after the video ends.

There is no footage of what was shown at the Ceasar Goodson trail board of the alleged bite. This is a representation of what was shown to the trail board as proof the bite took place.

After watching this video, I had 3 questions:

  1. Where exactly was the bite? All I saw was cops trying to handle the prisoner, constantly yelling at him and claiming he bit one of them.

2. Why exactly is this admissible as evidence? Freddie Gray did not resist in this manner, and it seems prejudicial and   irrelevant.

  1. Is it not an interesting coincidence, just weeks after the Baltimore uprising, that the BPD recorded a video where they claim to show someone biting an officer while being seatbelted in a van?

The only way I can describe what happened after this was that the Defense sought to make a “Walking Dead” defense.

The residents of the Western District in the Defense’s narrative were portrayed like the zombies in the popular AMC drama, with the Defense essentially arguing that policing the Western District is chaotically dangerous, and the residents are always seconds away from fits of lethal rage which threaten officers’ life and limb, literally ready to bite at any moment.

The Casual Callousness of Cops: Why Freddie Gray’s Pain Didn’t Matter

Not only was this evident in the defense’s consistent refrain that seat-belting prisoners in a police van brings cops into potentially dangerous close contact with detained individuals, but also in their assertion that Freddie Gray’s consistent calls for help, banging in the back of the van, and lethargic appearance, didn’t warrant immediate medical attention.

— “It happens a lot, unfortunately,” officer Gradhill said.

A simple enough statement until it’s put into a larger context.

The Defense is essentially admitting that their policing practices are so constantly traumatic that individuals are frequently willing to go to any length, including banging their own head against the metal wall of the van, to resist. While the defense, in their closing statement did argue that Officer Goodson’s actions in the face of this showed a unique form of callousness to human suffering, the BPD argued that the forms of suffering Freddie Gray exhibited were simply “par for the course.”  The trial board judges agreed, which says much more about the normalization of the impact of violent policing on the community than it does about the guilt or innocence of Officer Goodson.

 

Faking It: The Selective Compassion of the FOP

In one of the most seemingly mind bending parts of the trial, hard boiled FOP lawyers, crime fighters, and traditionally hard on crime promoters of law and order start defending the testimony of Donte Allen, who told investigators that he thought he heard Freddie Gray banging his own head against the vans walls, by saying,  it was the social structure of his neighborhood that might have driven Donte Allen to crime, but should still be seen as a credible witness despite potentially being incentivized by the opportunity for a more lenient sentence for telling the cops what they wanted to hear…

Image result for donta allen freddie gray
Donta Allen, who rode in the van with Freddie Gray, was called to testify at the trial board.

We KNOW the FOP does not care about the structural conditions which lead to folks pursuing crime, but they have to pretend that they do, in order to defend the testimony of someone who they thought would help their case. Moreover, they said that because the Prosecution’s evidence was in their opinions, shotty, that the community would feel the BPD is not trustworthy and essentially takes shortcuts to convict people, leading to a loss of trust in the department.

Of all the reasons the community would lose trust in the BPD, punishing the cop in the Freddie Gray case would surely be extremely low on the list, yet the defense lawyers used arguments they thought to be strategic for the fellow cops on the trial board, but can only be called offensive and disrespectful from the standpoint of the community,

The Inevitable Acquittal: The FOP Disproves Their Own Arguments

Watching the trial board was frustrating, but helped to solidify some of what we figured was untrue about arguments the FOP makes about the fixes advocates propose. We are told non-police are not qualified to be on the trial board, yet I am here watching non-judges struggling in adjudication and legal motions conjured seemingly out of thin air by the defense. We are told that local knowledge makes civilians bias, but then I am seeing a non-Baltimore based judge (the chair of the trial board) who needs help being walked through a videotaped drive through of the Baltimore City’s western district.

As a non lawyer, I cannot make an authoritative declaration on whether Goodson violated BPD policy. I can, as a director of research and someone who has researched these questions for four years, say the fact that this decision only took one day of deliberation for over 20 counts of rule violations, seems incommensurate with the complexity of the case.

Moreover, it comes off as disrespectful to the gravity and importance of the case. With over two years of investigation done since the tragic events of 2015, it seems unlikely to me that a thorough in-depth examination of the evidence can be done in a single night and a morning. This is especially true given how the legal standard of guilt in a trial board is not the traditional criminal court standard of “beyond a reasonable doubt, which can be hard to achieve, but the far lower bar of “preponderance of the evidence”. This essentially means if it’s more likely than not that, or a 50.1% confidence in a finding that Goodson violated BPD police, the judges are supposed to find him guilty based upon the “preponderance of the evidence” standard. But with less than one day of deliberation, one wonders how the judges had time to “ponder” much of anything.

Image result for caesar goodson trial board
Ceasar Goodson walking out, job intact, after the disciplinary trail board, consisting only of other police officers, found he did not violate BPD policy.

Conclusion: Don’t Play the Game, Change the Game

Within this process, answering basic question like “What happened to Freddie Gray” and “Who is responsible” are not unreasonable questions to expect answers to, yet there were none to be found last week, nor will their likely be any in the upcoming trial boards over the next few months. Internal Affairs simply does not have the firepower to compete with the onslaught of evidence FOP has accumulated and the resources it was marshalled in these cases. This is one of the reasons why changing the LEOBR to allow non- police agencies to have the power to investigate the police can help make these trial boards more fair. By having some independent verification of evidence, the community can have a greater degree of trust in what evidence is being presented, and Internal Affairs might have a fighting chance to present a case which meets the standards of evidence for the judges. In relation to the judges, it has become more clear that not only do the police allow for subtle bias to be injected into the process, but there is a need for some form of legal expertise.

It is simply a fact to say most cops are not experts in how to apply a “preponderance of evidence” standard in relation to evidence, as almost all of their work is from the criminal “beyond reasonable doubt” perspective. Having someone with some form of legal training would inject some much needed formality and expertise into the process, and especially if they are from Baltimore they can have some contextual understanding of both the difficulties of policing in Baltimore and the legal application of statutes. In lieu of this, it’s hard to imagine trial boards having the legitimacy to create a culture of accountability within the BPD.

The prosecution constantly says in his closing statement that Goodson had “one job” that day, “to be sure his detainee was safe,” similarly, to the standpoint of the community.

And likewise, the trial board has one job: to give the community confidence that the BPD is meeting the rules it set out for itself.

By the manner in which it ruled Goodson did his job, I fear the trial board failed in doing there’s.