Police overcharged in Freddie Gray case: Will likely beat the rap, but not the ride

Attorney Phil Gommels

The Death of Freddie Gray

freddy-gray-case-batimoreOn April 12, 2015 Lt. Brian Rice was on bicycle patrol with two young officers of the Baltimore Police Department, Garrett Miller, 26, and Edward Nero, 29.  All three are white.  Lt. Rice made eye contact with 25 year old black man, Freddie Gray, and by all accounts, Gray ran. 

The police gave chase.  And they’re allowed to do that.  To temporarily restrain a person’s freedom, the police have to have “reasonable suspicion” that a crime has occurred, is occurring, or will soon occur, and that the person is somehow involved.  The purpose of a detention is to investigate, and the duration has to be short. 

When the police caught up to Gray, they appear to have handled him roughly.  They found a knife on him that they appear to have thought was illegal, and they arrested him. 

Two observers caught video of the incident.  In the earlier video, a man and a woman can both be heard saying that police tazed Gray.  It also shows the three white police officers dragging Gray, screaming in pain, and then loading him into a white police van.

Less than two hours after his arrest, Gray, now in a coma, was transported to the University of Maryland R Adams Cowley Shock Trauma Center; three of his vertebrae broken and his spine 80% severed at his neck.  One week later, on April 19th, Freddy Gray died.

In a press conference, Deputy Police Commissioner Jerry Rodriguez said, “none of the officers described any use of force”—leaving everyone wondering how Gray sustained his deadly injuries. Nevertheless, many speculate that the injuries that killed Gray came from a “rough ride”—a practice where police purposely don’t restrain a suspect and then drive recklessly to hurt the suspect without actually touching him. 

On April 30th the medical examiner issued a report ruling Gray’s death a homicide.  They said that his injuries were sustained from slamming into the inside of the van, “apparently breaking his neck; a head injury he sustained matches a bolt in the back of the van.”

Charges filed against the police involved

The next day, State’s attorney Marilyn Mosby for the City of Baltimore announced that the police allegedly responsible for the death of Freddie Gray would face criminal charges.  The litany of charges sought, though, warrant some head scratching. 

It’s not uncommon for a prosecutor to charge the highest level offense that they could perhaps prove, hoping to settle at least for a conviction on a lesser charge.  Certainly there seems to be a bit of that going on.  But there are also some very creative crimes charged that are unlikely to stick, too.  The most likely outcome from all this is that most of the officers accused of crimes related to the handling of the Gray case will either evade criminal conviction, or be found guilty of minor crimes. 

Summary of charges and consequences

The six officers were charged with an array of seven different crimes.  Most charges against most officers are very unlikely to stick.  Here’s a summary of the charges brought against the different officers:

Misconduct in office

Each of the six officers is charged with misconduct in office.  Officer Nero, one of the three white officers seen on video arresting Gray, is charged with it twice.  

This leaves me to wonder, is there any reason other than optics that the prosecution would charge each officer with this crime?  If so, I don’t see it.

False imprisonment

Lt. Brian Rice and Officer Nero are charged with false imprisonment, but the other white officer with whom they arrested Gray—Officer Garrett Miller—is not.  It’s unclear why the first two were charged, and the third wasn’t. 

This is the most confusing charge of them all. False imprisonment in other places is a crime, though.  And I’ve seen it used to prosecute say kidnappers, or spouses who get into a spat and one won’t let the other leave.  But I’ve never seen a police officer charged with this crime. It is very unusual to see this charge under these facts.

Certainly there are questions about whether the police had authority under the constitution to arrest Freddie Gray.  And the analysis of that turns on whether the police really thought the knife they found on Mr. Gray was illegal.  Generally, under the constitution, police can only make an arrest when they find it more likely than not that the person has committed a crime.  This is called “probable cause,” and it’s a higher burden than “reasonable suspicion.” 

Apparently in Baltimore, it’s legal to carry a “spring-assisted” knife, but not a “switchblade.”  If the police sincerely believed that the knife they found was illegal, they were probably justified in their arrest.  If not, the arrest was probably illegal. 

I’ll say, as a former prosecutor, often the details of which weapons are prohibited and which aren’t isn’t always immediately obvious, even to aficionados.  I’ve prosecuted cases where diligent defense work revealed that what appeared initially to be illegal turned out not to be.  And I dismissed those cases.  Had Freddie Gray lived, I believe he would have been charged with the possession of this illegal knife, and, if it turns out that the knife he had really was legal, a good lawyer would have gotten the charges dropped. 

If the police, though, knew at the time that possessing that knife was no crime, but they arrested him anyway, the arrest would be illegal.  But that’s different entirely from the arrest itself being criminal offense.  The remedy, had Mr. Gray lived, would have been to ask the court to suppress the evidence gathered from his unlawful arrest.  Nothing done after the arrest could have been admitted as evidence against him.

I can’t imagine either Rice or Nero being found guilty on this charge.

Second-degree assault

Each of the six officers is also charged with second degree assault.  It’s a misdemeanor with a really wide range of punishment: up to 10 years imprisonment and up to a $2,500 fine.  Any offensive touching counts as assault.  In my experience, juries and grand juries give police officers a very wide degree of discretion when it comes to the use of force.   A young man who, through no provocation, ran from the police was found with a knife.  Fact patterns like these are a dime a dozen, and walk into any criminal courthouse anywhere in the country and you’re likely to find a police officer charged and acquitted under these facts. 

That being said, the eyewitness accounts and video may actually justify convictions in the cases of Rice, Nero, and Miller.  And in the cases of the other officers, the prosecution may have more facts that they are not releasing. 

Felonies

Misconduct, assault, false imprisonment—because they are misdemeanor charges, none of them will ever see a grand jury.  But the remaining four charges are felonies—serious crimes—and will require an indictment by a grand jury. 

Here’s how that works.  Citizens are empaneled to come together regularly for months at a time to hear about felony charges being brought by the government.  Their job is to decide whether there’s probable cause to continue with charges against the defendant.  Typically, when police are charged in brutality cases like this one, the grand jury finds that there’s no probable cause—something referred to as “no-billing” a case.

How? 

The old saying goes, “a prosecutor could indict a ham sandwich.”  That’s because over time the prosecutor builds a relationship with the grand jurors.  The grand jurors trust the prosecutor.  They pick up on subtleties like body language and tone of voice.  They can tell if the prosecutor is seeking an indictment or a no-bill.

The corollary rule is that a prosecutor can get a no-bill if she wants one—especially in a police killing.  In many jurisdictions, grand jurors are indoctrinated at the beginning of their service about the risk of the police’s job, and in some cases, they’re even invited to participate in simulations that ask them to make split-second decisions on whether to use deadly force or not. 

Prosecutors often use this tactic when, publicly, they must condemn an action, or at least bring charges to seem fair, while, privately they want the case to go away.  So the prosecutor will take the case into the grand jury and do everything but ask for a no-bill.  And the grand jury will give it to her.  It happened in Ferguson with the Michael Brown shooting.  It happened in New York with the Eric Garner strangulation.  And in all likelihood it will happen on all felony charges here. 

There is one exception.  Caesar Goodson, the van driver, is charged with Murder and three different types of manslaughter.  He seems to be the target of the prosecution. 

The medical examiner’s report specifically seems to cite the van driving and lack of restraints on Gray as the cause of death.  And the other officers may be offered some kind of leniency if they agree to testify against Goodson.

The most serious charge, depraved heart murder, is likely to be very difficult to prove.  But especially if lawyers for Goodson are unsuccessful in changing the venue (a tactic they’d be fools not to try) a Baltimore jury very well may find Goodson responsible the death of Freddie Gray.

If a jury were to find Goodson criminally responsible for Grays’ death, it would be a watershed for race relations and police-citizen dynamics in America.  History has shown a reluctance to hold police accountable in these high-profile police misconduct cases.  And it’s been that repeated perception of injustice that has precipitated riots and demonstrations across the country.  A conviction for Goodson wouldn’t solve America’s racial divide, but it would be a step toward causing a deeply distrustful black community to feel represented, and possibly protected by law enforcement.

If all officers escape criminal punishment though, as they are likely to do, this ordeal will not be without consequences for them.  Already each of them were suspended (albeit with pay).  It’s hard to know what effect this may have on their careers going forward.  Certainly their careers could be over.  And in the court of public opinion, they’re already guilty, and likely are facing difficulty in their communities

Somehow, four of the six officers were able to make an extraordinarily high bond of $350,000 (Miller’s and Nero’s bonds were set lower, at $250,000; they too posted bail).  While their charges are pending, they’ll appear in court from time-to-time, and may be subject to conditions of bail which may include restrictions of their rights otherwise granted under the constitution. 

This whole thing is likely to take months to unravel.  And at the end, most of these cops won’t be convicted of any serious crime.  But they will have received some punishment by virtue of the same procedures that protect their rights.  Is it proportional?  You be the judge.


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