The Untimely Death of Freddie Gray and Baltimore’s “Troubles”: A Few Comments from the Trenches – Part III

Taunya Lovell Banks

Each year a local theater group spends one night in January reading the names of people murdered in Baltimore during the prior year.  One year the reading was held outdoors on North Avenue about a mile and a half from Pennsylvania Avenue. I attended this event marveling, as the cars passed, at how parts of the city could go on unperturbed while the names of a few hundred dead young, primarily black males were read.  I never paid attention to whether police killings are included on the list so I wonder whether Freddie Gray’s name will be included at the next year’s reading.

My first post reflected on the April 27^th civil disturbance in Baltimore. My second post examined the circumstances surrounding what the Baltimore State’s Attorney characterized as Freddie Gray’s unlawful arrest. This post looks at the state of Baltimore following the charges of arrest filed against the six police officers involved in Freddie Gray’s arrest.

The Aftermath

On May 1^st, 12 days after Freddie’s death, Marilyn Mosby, the Baltimore State’s Attorney, said that the autopsy report labeled Mr. Gray’s death a homicide and announced that she was charging the six police officers implicated in his death. Here is a link to the full text of the charging documents against each police officer.

To briefly summarize, in addition to the false imprisonment charges mentioned in my last post, the driver of the police wagon was charged with Second Degree Depraved Heart Murder and lesser offenses.  The female police officer, a sergeant on the scene at the fourth stop, was charged with Involuntary Manslaughter and lesser offenses.   The highest ranking officer in the case, the lieutenant who initiated the arrest, was charged with Involuntary Manslaughter and lesser charges.

The six officers surrendered and were released on bail ranging from $250000 to $350000.  Illustrating the continuing inequities in Baltimore’s criminal justice system, the bail of a young black man whose photo was captured as he stood on top of a police car and smashed a traffic cone into the windshield, and who surrendered to the police on the advice of his parents, was set at $500,000.

 

The Daily Beast hailed Mosby as “The Prosecutor Who Could Save Baltimore” as if any one person has enough power, resources and energy to solve the City’s myriad of problems. Conversely, many commentators labeled Mosby’s actions rushed and politically motivated. But prior to bringing charges the rookie State’s Attorney had initiated her own investigation simultaneous with that of the Baltimore Police Department, and the BPD had completed its investigation in the same time period. 

As Debbie Hines, a former Baltimore prosecutor, noted “[t]he problem is not with Ms. Mosby’s speed but with the other police involved killings in other jurisdictions and Maryland that took months to investigate without charges being filed.  It should not and does not normally take months to investigate a homicide.”  She adds: “Like all homicide investigations, her office’s investigation will be ongoing. A homicide investigation does not end just because charges have been brought. Just as the police are continuing their investigation, Ms. Mosby undoubtedly will continue her investigation.  Once Mosby had enough information to bring charges based on probable cause, her office prepared the necessary paperwork to bring the charges. Probable cause is a far much lower standard from reasonable doubt.”

Last week Baltimore’s Mayor asked the U.S. Department of Justice for a civil rights “patterns and practices” review of the BPD. Many city residents had urged her to do this long before Freddie’s death.  The Police Commissioner welcomed the Mayor’s request saying: “Our work is ongoing and anyone who wishes to be a part of helping the department better connect with the community will always be welcome.”

In the meantime things continue to percolate in Baltimore.  Lawyers for the six police officers filed a motion to dismiss the charges.  The Police Union wants the State’s Attorney to recluse herself because of alleged conflicts of interest.  The Union head asked her to appoint an independent prosecutor – not likely.  On Sunday the entertainer Prince performed at a “Rally 4 Peace” in Baltimore (streamed for free on Tidal) where he sang his “protest” song entitled Baltimore (not as good as Nina Simone’s). 

City residents are waiting to see whether a judge will dismiss the criminal charges against the six Baltimore police officers; whether prosecutors can take their case to a grand jury and get indictments against the officers; and whether the U.S. Department of Justice will launch a broad civil rights investigation into the police department. 

Hopefully we are moving forward, but city residents need something real and tangible soon. Baltimore’s hot, humid summer is not far away.

Thanks to my colleagues Renee Hutchins and Michael Pinard who are on the front lines in Baltimore and who helped me with the criminal aspects of this and my last post. 

Hopefully Dan will allow me to make occasional short updates in the future.

Comments

[Muriel Morisey]

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

[[M][@][c][K]]

Taunya:

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.

[(M)([a)(c)(K)]

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.

[anon]

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."

[anon]

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.