NOT SO FAST

Did Prosecutor Overreach in Charging Cops for Freddie Gray?

State’s Attorney Marilyn Mosby announced criminal charges to much applause, but she did not allege cops used a ‘rough ride.’

Baltimore State’s Attorney Marilyn Mosby has decided to charge all of the six officers involved in the death of Freddie Gray criminally, with charges ranging from second-degree murder to manslaughter, misconduct in office, assault, and false imprisonment. In order to convict any of the officers of second-degree murder or manslaughter, Mosby must prove beyond a reasonable doubt that the officers intentionally caused Gray’s death. This is a far more challenging legal hurdle to overcome than the probable cause that prosecutors maintain exists in simply charging the officers. Absent a “smoking gun,” (such as surveillance video, a cooperating police officer, or eyewitness testimony), involuntary manslaughter is likely the most serious charge that any of the officers charged could be convicted of.

Even this will prove to be an uphill battle for prosecutors. They must convince a judge or a jury that the defendants knew or should have known that their actions were a threat to Gray’s life, a more than significant burden to prove beyond a reasonable doubt.

Prosecutors will also need to prove that what the police did was something they knew was inherently dangerous or that it was done with a reckless disregard for human life. On Friday, Mosby only said Gray suffered a “severe and critical neck injury” as a result of being handcuffed, shackled, but not seat-belted in the van.

So, getting a criminal conviction in a state court for second-degree murder or manslaughter is a long shot.

The Department of Justice is conducting an investigation into possible civil-rights violations on the part of the Baltimore police officers who were involved in Gray’s death, and it is here, I believe, that mounting a successful prosecution against the officers is more likely to be successful. But again, this is far from a certainty. The City of Baltimore has significant legal exposure in the civil lawsuit that will no doubt result from Gray’s death and will likely agree to a seven-figure settlement with his family. But if the residents of Baltimore and Gray’s family are looking to the state’s attorney to obtain a criminal conviction against any of the six involved Baltimore police officers, particularly for murder or manslaughter, they may be disappointed.

The legal standard governing the appropriateness of police use of force rests in the 1989 U.S. Supreme Court decision Graham vs. Connor, and this decision gives wide latitude and the benefit of the doubt to the police in their use of force. Graham holds that any determination of the “reasonableness” of a particular “seizure” under the Fourth Amendment’s prohibition of unreasonable searches and seizures “must be judged from the perspective of a reasonable officer at the scene, rather than with the vision of 20/20 hindsight” (of say a judge or a juror). Graham also mandates that the “seizure” (of Gray) be judged from the perspective of a reasonable officer who might have been at the scene of the arrest, and not some otherwise reasonable person who does not share law-enforcement experience and the police worldview. (The defense will surely mention Gray’s prior arrests for burglary and drugs to support the claim it was reasonable to stop him.)

Can we expect justice for Freddie Gray? Many who felt it was denied in the cases of Michael Brown, Tamir Rice, Eric Garner, Miriam Carey, and many other black and brown men and women who have died at the hands of police now look to Mosby. It is likely to be some time, I believe, before Baltimore and Gray see justice.

Consider this: The police officer who drove the van in which it is believed Gray suffered a fatal spine injury was charged with the most serious of the offenses. However, according to The New York Times, the state’s attorney “did not allege that the van driver, Officer Caesar R. Goodson, Jr., intentionally gave Mr. Gray a ‘rough ride,’ to slam him against the metal walls of the van. But Officer Goodson was charged with second-degree murder, manslaughter, assault, and misconduct in office.”

It is highly unlikely then that Officer Goodson will be convicted of second-degree murder and manslaughter; at most he may plead guilty to the assault and misconduct charges and be fired from his position at the Baltimore PD. But, given the broad discretion that the Supreme Court has given law enforcement in their use of force, Goodson and his fellow officers could conceivably plead not guilty to all charges and be found not guilty of all of the charges. I’m hopeful about Baltimore seeing justice, but I’m not optimistic.

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Tom Nolan

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