Search the Lounge


« Law, Space, and the Political CFP | Main | When Harvard Said No to Eugenics »

May 11, 2015


Feed You can follow this conversation by subscribing to the comment feed for this post.

Muriel Morisey

Thank you, Taunya for your invaluable insights and the very helpful summary events you provide through your three posts.



This has been a tremendously interesting set of posts. Thank you.

A few quick questions (and I am not a criminal lawyer and these may seem naive) - if the officers were to deploy the SODDI strategy (or in this case the TODDI strategy), i.e., the driver arguing that the fatal injury happened during the arrest, the arresting officers blaming the driver - how would this be treated?

It would seem to me that two procedural approaches likely to be followed are: (a) motions to sever the trials; (b) motions to transfer out of Baltimore. Again, how are these likely to be treated?

Taunya Banks

Very interesting questions. This is really not my area either which is why I had to ask a couple of colleagues about some of the legal issues. Here is how one colleague responded to your questions: "For severance, one would have to argue (and the court believe) that he or she could not get a fair trial because otherwise inadmissible evidence would be admissible or that his or her theory of the case would be undermined. In essence, he or she would have to show that severance is the only way he or she could get a fair trial. So we will see how this issue plays out. This would depend, in part, on what the five officers who have given statements have actually said. However, I don't see this having anything to do with moving this trial (or, if cases are severed, any of the trials) outside of Baltimore. The issue there is whether the officers can get a fair trial in Baltimore. Severance has nothing to do with that question, at least in my eyes"
Hope this helps.


Thanks for that.

My questions were not formulated very clearly. Severance - perhaps, might facilitate a SODDI/TODDI defence. Moving the trial would be a different issue - and I am curious as to what grounds Maryland allows for changing a criminal venue.

Douglas Levene

I don't see a jury coming down with a murder conviction on the depraved heart theory under any circumstances. Gray's death was a fluke - no one usually suffers serious injuries from a ride in the paddy wagon, let alone dies from it - and that kind of unforseeability makes it impossible for the prosecution to prove extreme recklessness, the equivalent of firing a gun blindly in a crowded nightclub.

The prosecution's only chance of a murder conviction is a straight up second degree murder charge based on the theory that (i) the driver intentionally gave Gray a "rough ride" in order to punish him for running from the arresting officers and (ii) Gray's death resulted from that "rough ride." In an intentional case, forseeability isn't required - defendants "take their victims as they find them" and are criminally responsible for the injuries resulting from the harm that the defendants intended to cause, even where the eventual harm is unforseen. However, I don't see how the prosecutor can carry the burden of proof on an intentional "rough ride" theory without some evidence beyond the known facts - that Gray was placed faced down, hogtied and shackled, on the floor of the van. Was that a common way to transport prisoners? Did Gray behave in a way requiring such restraints? We don't know and the prosecution has the burden of proof. I don't think the testimony of the other prisoner in the van, even if it supports the state, will be enough. In my opinion, the prosecutor is going to have to flip one of the defendants or she's going to lose the murder case.

I don't know about the negligent homicide cases. Maybe she can get a conviction on failure to provide medical care, I don't know.

The illegal arrest case seems to be falling apart because the knife the cops found on Gray was at least arguably illegal under Baltimore city ordinances.

Could be an unpleasant summer in Baltimore.

Taunya Banks

It is the broken voice box that suggests something more than a "rough ride", perhaps a beating. Remember we have not seen all the prosecutor's evidence yet. The State's Attorney of Baltimore has asked for a grand jury to be convened in advance of the police's motion to dismiss the charges.


From the Baltimore Sun:

Mosby said "the manner of death deemed a homicide by the State Medical Examiner is believed to be the result of a fatal injury that occurred while Mr. Gray was unrestrained by a seatbelt in the custody of the Baltimore Police Department wagon."

Please provide your evidence of "something more than a 'rough ride', perhaps a beating."


The City paper reports:

"After an autopsy, police said Gray suffered no broken bones. His voice box was not crushed, as previously reported. They said Gray asked for an inhaler for his asthma but was not given one."

Taunya Banks

If you read my second post carefully Mr. Gray's injuries come from the charging documents, not press reports. I am speculating, as is the press, on what happened in the police wagon. I assume the charges are based on facts, some of which were gathered from the State Medical Examiner's report. There are reports of people who allegedly witnessed police beating Mr. Gray, so as I said in my earlier response, I do not know what additional evidence prosecutors have but have not disclosed.

Douglas Levene

The prosecution doesn't have to prove anything more than an intentional rough ride. It doesn't have to prove the police beat Gray. All it has to show is that the driver deliberately put him face down on the floor of the van, hogtied, shackled, and unable to protect him self against perfectly ordinary sudden stops and turns, for the purpose of punishing Gray by banging him up a little bit. That intent to inflict harm on Gray suffices for second degree murder. However, proving that the driver intended to harm Gray is going to be very hard for the prosecution, so long as the defense can create a plausible alternative story.

The comments to this entry are closed.


  • StatCounter
Blog powered by Typepad