After Quick Decision to Charge in Gray Case, Obtaining Convictions May Not Be Black and White

A week ago Saturday I was emailed by a friend who is a former state trooper. He was upset over the indictment of 6 Baltimore cops in connection with the death of Freddie Gray. The charges announced by State's Attorney Marilyn Mosby ranged from 2d degree ("depraved heart") murder to 2d degree assault and false imprisonment. Both voluntary and involuntary manslaughter were also amongst the crimes charged. My friend claimed the charges were the product of a "rush to judgment" and "political pandering to the public." He was particularly bothered by the fact the charges, the most serious of which allows for punishment (in Maryland) of up to 30 years in prison, resulted from an investigation which, in the very best case analysis—since Gray died 7 days after being arrested—lasted a mere 12 days. I have to say, in the first instant, my instincts as a longtime criminal defense attorney kicked in and my inclination was to agree with him.

As I thought about it more, though, my opinion began to change. First, there appears to be no question that Gray died in police custody. Second, absent undiscovered evidence, whether from cell phone video or eye-witness testimony (of say, for example, Gray flipping head over handle-bars off his bike and landing on his head before his fatal encounter with the police), there seems no doubt his injuries occurred while in police custody. Also, the Medical Examiner examined Gray's back and neck injuries and ruled his death to be a "homicide caused by severe trauma." Investigation further revealed that Gray—-who appeared to already be seriously injured and in distress from video shot from what is now de rigueur and ubiquitous, a civilian cell phone—was placed inside a police transport van, with arms bound behind his back, legs in clamps, without seat belt or safety restraints tethering him safely in place. Apparently, witness[es] reported Gray repeatedly requested, and was denied, medical aid and attention. Without needing to say it, State's Attorney Mosby all but invoked the ancient Latin Legal Maxim "res ipsa loquitor" (the thing speaks for itself) in announcing the charges, and she further seemed to hint about a "rough ride" component in a way that suggested this may not be the first instance in which the manner a suspect was transported by Baltimore Police has come under scrutiny or suspicion. Couple all this with the standard to file criminal charges being much lower ("probable cause") than the standard to convict ("proof beyond a reasonable doubt") and the proverbial (if not slightly exaggerated) public safety goal to try to solve any homicide within the first 48 hours, and claims about rushing to justice suddenly have less resonance.

Besides, there is nothing that suggests the State's Attorney must wait a certain prescribed period once she had ascertained probable cause existed simply because police officers are involved, or that she is required to prolong a process already completed out of deference or respect to police union(s). Yes, Ferguson and Staten Island took longer, but that's because both matters were styled as Grand Jury investigations, and the issue of probable cause in each was left for Grand Jurors to decide—-as is the case with many police shootings in other states and most death-in-police-custody matters. Also, there is nothing that says the backdrop against which the decision to charge was made in the Gray case—rioting in inner-city Baltimore—should not have informed timing of her decision (which is quite different from saying the rioting should not have informed the decision itself). In other words, once probable cause was established, Ms. Mosby had every right/reason/responsibility to issue the decision she reached, without any further delay, not only in the regular discharge of her official duty as State's Attorney, but also in the interest of protecting public safety—which is also one of her constitutional responsibilities.

If in saying this I am revealing my roots as a former State and Federal Prosecutor (and County Sheriff), so be it. I'm only talking about the decision to charge the six officers. Whether or not those charges can be proven beyond a reasonable doubt (or can even get past the "rail" in terms of what the state is able to prove at trial) is an entirely different question; which is where my perspective as a long time criminal defense attorney now kicks in. In my opinion, the State is going to have a tough time proving many of these charges beyond a reasonable doubt, especially the 2d degree murder charge against the van's driver, Officer Caesar Goodson, Jr. There, under the "depraved heart" theory , the State must prove that the accused [Goodson] "under circumstances evincing a depraved indifference to human life, recklessly engaged in conduct which created a grave risk of death to another person, and thereby caused the death of another person." I'm not saying they can't prove the requisite "malice aforethought" through evidence of the manner in which Goodson drove the van once Gray was placed inside (especially if reports that Goodson repeatedly refused Gray's requests for medical attention are accurate—which would be part of the State's "proof" of depraved indifference). I am saying there's a lot the State would have to know/prove before they can do this, including proving that Goodson was aware how badly Gray was injured; proving that in driving fast and/or frequently braking or stopping abruptly, Goodson knew there was high probability he could kill Gray or injure him even more seriously; and proving that Goodson knew Gray was genuinely in immediate need of emergency medical attention (as opposed to thinking he was malingering or faking it), yet consciously ignored it. Unless Goodson either admitted to the same, or made statements regarding his state of mind to third parties about all this, I'm not sure how they're going to be able to do this.

I feel the same way about the case against those officers facing manslaughter charges if the theory behind those is that Gray's death was the result of the officers' intent to cause him serious bodily harm. I'm not sure how the State proves this without proof of knowledge by the officers who placed him in the van that Goodson was going to drive in a manner intended to cause Gray serious bodily harm or increase the chance it would result in his death to a high probability, or proof that they either explicitly, or implicitly, encouraged or importuned Goodson to subject Gray to a Baltimore "rough ride." On the other hand, unlike in Massachusetts (where it's limited to motor vehicular homicide), in Maryland, Involuntary Manslaughter can be predicated on criminal negligence; and the State might be able to get some traction there through evidence that a seriously injured Gray was "tossed" handcuffed and shackled into the back of van without safety restraints or being belted in. But even there, the State would still have to prove those officers who did that knew he was seriously injured and/or did not avoid safety restraints/belting out of concern that doing so might further exacerbate a suspected neck/spinal cord injury. (As far as the alleged detainee/witness on the other side of the van's partition who claimed to hear Gray repeatedly pleading for medical assistance is concerned, all I can say is, "Please...." The officers' defense lawyers will have a field day with him in terms of his incentive/motivation to cooperate; cut a deal with prosecutors and also get to take "pot shots" at the conduct of cops who arrested him? What low-level "rat" wouldn't jump at that two-for-one opportunity?

Also, basing the false imprisonment charge on the fact that the knife Gray was allegedly carrying turned out not to be illegal relies on a highly subjective determination of the arresting officers' states of mind, which for all intents and purposes also ignores both the qualified immunity by which they are expressly protected, and their right to make spontaneous judgments in "good faith" that may later turn out to be wrong. I'm not sure that's a slippery slope any State's Attorney necessarily wants to go down once all the dust has settled in any given case. All of which may be why Ms. Mosby is likely secretly relieved that the Department of Justice has agreed to undertake a comprehensive federal civil rights investigation/review of the entire Baltimore Police Department regarding suspected patterns of use of excessive force, deadly force, unlawful seizures and arrests, and discriminatory policing. The eventual findings there may well turn out to be eye-opening, alarming, and a critical step towards restoring the public trust that newly confirmed US Attorney General Loretta Lynch publicly stated, and the Baltimore riots attest to, has "eroded" in that City. They may also provide an alternative way to still hold the six Baltimore police officers accountable, should the state charges later prove unavailing.

In the end then, while I would have liked to have heard a bit more emphasis by Ms. Mosby on the unacceptability, indeed the criminality, of looting, stealing, arson, and rioting in the wake of Gray's untimely death, even as a criminal defense attorney, I cannot fault her decision to get ahead, and in firm control of this prosecution quickly in order for a state criminal jury (or possibly a federal civil jury) to decide exactly who not only did what to Gray, but why and how. Indeed, it's decisions like those on which our livelihoods and reputations as members of the Criminal Defense Bar are often made and depend.