Maryland State Attorney Marilyn Mosby has charged the six officers in the death of 25-year-old Baltimore resident Freddie Gray as protests, rioting and looting took place in Baltimore's streets following the incident.
The cursory details of the case are these: Baltimore police arrested Freddie Gray for possessing what they alleged was an illegal knife. Six officers were involved in placing Gray in a transport van. Later, when he was taken from the van, it became clear Gray had been somehow injured. Much later, it would be determined he had suffered from injuries that included a severed spinal cord. Gray eventually died on April 19, and the medical examiner thereafter ruled his death a homicide stemming from his injuries.
Following this pronouncement - just 12 days later on May 1 - Mosby charged the six officers associated with Gray's arrest with a variety of crimes. Her rush to charge the officers has lead to widespread speculation that she buckled under the pressure of the riots that followed Gray's death - that she was answering the call for "mob justice."
To get a sense of just how quickly her investigation into the case concluded, it's worth comparing this case with the investigation into the death of Tamir Rice, a 12-year-old African American child who was shot by a white officer in Cleveland responding to a dispatch call regarding a male, "probably a juvenile," sitting on a swing in a park and "pointing a gun at people," according to CNN.
Investigators currently possess video evidence of these events, but according to a recent press conference, the investigation remains ongoing even six months after the shooting. In contrast, and as previously mentioned, it took Marilyn Mosby just 12 days to bring charges in the death of Gray - a case that lacks both videos and eyewitnesses.
Mosby's haste throughout this investigation has led to mistakes in at least two respects. Her office issued arrest documents that incorrectly listed two people who had nothing to do with the shooting of Gray. Both of these people had to endure endless telephone calls from journalists and bail bondsmen who mistook them for the officers who were charged, according to the Baltimore Sun. No doubt - given the rioting in Baltimore - the risk of bodily harm or even death to these two individuals resulting from such a mistake was extremely high.
The six officers who were actually involved in Gray's arrest face a wide variety of charges. Officer Caesar Goodson Jr., a 45-year-old African American who was driving the police vehicle, faces the severest of charges. These include second degree "depraved heart murder," which carries a maximum sentence of 30 years in jail. He is also charged with involuntary manslaughter (10 years), assault in the second degree (10 years), two counts of manslaughter by vehicle (total of 13 years) and misconduct (court discretion in sentencing).
Some of these charges may be appropriate, but let's look at the most severe: depraved heart murder. In order to answer such a charge, a prosecutor needs to prove "something more than conduct amounting to a high or unreasonable risk to human life" and demonstrate "indifference to the ultimate consequence of the act-death" [Robinson v State, 517 A2d 94 (1986)].
We do not know what evidence Mosby plans to offer in support of this charge. But she will have to prove Goodson knew that the consequence of his actions in driving Gray could result in death - or else how could he show indifference to that possible consequence? Given that there are few, if any, instances of "rough rides" resulting in the death of a passenger, Mosby has her work cut out for her, and if this charge is an overreach, as many suspect given the information we have so far, it would seem that she has made another mistake.
Here's what the other officers have been charged with:
Officer William Porter, 25, is an African American patrolman who, according to reports, was told that Gray could not breathe and did not respond to Gray's requests for help. He is charged with involuntary manslaughter, assault in the second degree and misconduct.
Lt. Brian Rice, 41, is a white officer who allegedly made eye contact with Gray, at which point Gray ran, causing Rice to give chase in making the initial arrest. Rice faces a charge of involuntary manslaughter, two counts of assault in the second degree, two counts of misconduct and one count of false imprisonment, (the sentence for which is decided by the judge).
Officers Edward Nero, 20, and Garrett E. Miller, 20, are rookie bike cops and are both white. Nero and Miller are each facing two charges of assault in the second degree, two charges of misconduct and one false imprisonment charge.
Sgt. Alicia White, 30, is an African American woman who is charged with involuntary manslaughter, assault in the second degree and misconduct. These charges are based on the reported allegation that she did nothing to help Gray.
The entire case rests upon whether officers had probable cause to arrest Gray. To that point, the most important charges may be those of "false imprisonment." Mosby claims Gray's arrest was illegal to begin with and that what followed was not reasonable. However, if the arrest was indeed legal, then the officers had the right to restrain him and take him to jail.
Mosby's argument comes down to a knife that reports say Gray was carrying. Her office has asserted that it was not a switchblade knife and is therefore lawful to possess under Maryland law. But the sole charge against Gray was a violation of Baltimore Code and Section 59-22 that states it is unlawful for any person to carry any knife with an automatic spring or other device to open and or close the blade. If convicted of this crime, the sentence is up to one year. If Mosby is wrong, and the knife Gray carried is deemed illegal under Baltimore code, the rest of her case may fail.
Beyond that, and in bringing the false imprisonment charges in the first place, Mosby may have negatively impacted the future of policing in America.
If a police officer can be held liable for false imprisonment every time he makes an arrest, there is certainly an argument to be made that officers will become far more reluctant to make arrests in "close call" situations. That's one reason why such charges have always been extremely rare. In fact, issues involving probable cause to make an arrest more often come down to defendants raising objections that Fourth Amendment rights have been violated. The Fourth Amendment prohibits unreasonable searches and seizures and requires any warrant to be judicially sanctioned and supported by probable cause. In these cases, the Courts have held that there is no such violation if the officer's mistake, whether a mistake of law or a mistake of fact, was "objectively reasonable" [Heien v. NC 574 U.S. __(2014)].
Mosby appears to want to hold these officers criminally responsible under standards higher than those articulated by our Supreme Court. In addition, a strong argument can be made that Mosby should have recused herself from the case and appointed a special prosecutor in her place. She called for one publicly during the Michael Brown investigation in Ferguson, Mo., and her husband, Nick Mosby, is a city councilman for the 7th District in Baltimore - an area of the city directly impacted by the riots that Mosby's charges seemed to quell.
Next, the lead prosecutor on Mosby's team happens to be in a romantic relationship with a Baltimore reporter who was able to obtain an exclusive interview with a witness who had not been publicly identified. She has since taken herself off the story to avoid the appearance of impropriety.
Shouldn't Mosby do the same?
Potential conflicts in the case don't end there. Two of the officers charged with false imprisonment have indicated they plan to file civil charges against Mosby, which means she now has a financial and personal interest in the outcomes of this case. She also relied on her own investigators rather than police in bringing these charges, so her employees will likely be witnesses at trial. Finally, the attorney for the Gray family donated to Mosby's election campaign, served on her transition team once she was elected, and her relationship with him is the focus of a motion for her recusal in a separate case.
But there's even more: when an attorney grievance was filed against Mosby late last year, the attorney for the Gray family served as Mosby's attorney!
Then there's the speech Mosby gave in announcing the charges against the officers. It certainly seemed to violate Maryland Rule of Professional Conduct 3.8, which lays out the special responsibilities of a prosecutor, stating, "[he/she] shall refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused."
It would be difficult for anyone to argue her speech did not violate this code of conduct, but there's also the fact that she appeared on CNN to discuss the case. Mosby even sat on stage while Prince sang about the injustice done to Gray! So much for Mosby saying she "would not litigate this case through the media."
It may be a little late for that.
No doubt something terrible happened to Freddie Gray, and those responsible should be held accountable. But the integrity of the legal system must be strictly maintained. To my mind, that means appointing a special prosecutor in this case. There is simply too much on the line in this case - race relations in Baltimore and throughout the nation, as well as issues of public safety and public trust in our justice system - to play fast and loose with the legal process. Gray, his family and these six police officers deserve far better under the laws of this nation.
Heather Hansen is a partner in the O'Brien and Ryan law firm who has been named one of the 50 top female lawyers in the state by Pennsylvania Super Lawyers. Heather is also a national television and radio legal analyst and journalist who has appeared extensively on CBS News, Fox News, Fox Business Channel, Fox.com, CNN, HLN and Sirius XM radio. Her writing has appeared in Law360 and she has co-authored two chapters in medical texts regarding medical malpractice litigation. Follow her on Twitter at @imheatherhansen.
