Some legal experts say the case against the six Baltimore police officers charged in Freddie Gray’s death is fraught with challenges.
BALTIMORE — The decision of Baltimore State’s Attorney Marilyn Mosby to file charges of murder and false imprisonment against police officers in the death of Freddie Gray was bold and novel, according to legal analysts, but some said they will be challenging to prove in court.
“She has overcharged,” said criminal-defense attorney Steven Levin, a former federal prosecutor. As a result, he said, Mosby could lose credibility with a jury, making it more difficult to obtain a conviction on any of the charges.
Other attorneys disagreed, saying it was impossible to judge the strength of Mosby’s case without seeing the evidence. Defense attorney A. Dwight Pettit said the prosecutor “is going to have a rough road to travel,” but he believes the charges are reasonable. “At least the public will be able to see that battled out in the courtroom,” he said. “For the first time, it is not swept under the rug.”
Alan Dershowitz, a criminal-defense lawyer and professor emeritus at Harvard Law School, suggested Mosby’s actions were motivated more by political expediency and short-term public safety than strong evidence. He called the charges “outrageous and irresponsible,” especially the second-degree murder count filed against the van’s driver under a legal principle known as “depraved heart.”
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“The decision to file charges was made not based on considerations of justice, but on considerations of crowd control,” Dershowitz said Saturday.
Indeed, Mosby announced the charges four days after public anger over Gray’s death triggered riots, and the day before thousands marched to celebrate the decision to file criminal charges in the case.
Within hours, the city’s police union questioned the prosecutor’s impartiality, accusing her of a rush to judgment and demanding she recuse herself. Even some of those who support Mosby’s stand worry further violence might erupt if she fails to win convictions.
Mosby said Friday that police should not have arrested Gray, 25, on April 12. She said he died of injuries he suffered during the van ride to the Western District police station.
Officer Caesar Goodson Jr., the driver of the van, faces the most serious charge: second-degree depraved heart murder.
Criminal-defense attorney Andrew Alperstein, a former Baltimore County prosecutor, said “depraved heart” describes a person who did not intend to kill, but acted with a reckless disregard for human life. Most second-degree murder charges include an intention to kill.
Mosby filed charges of false imprisonment against three other officers involved in Gray’s arrest.
She steered clear of specifically alleging Goodson took Gray on a “rough ride,” the term commonly applied in Baltimore to the practice of the driver making quick stops and sharp turns so as to slam the prisoner around in the back of the van.
The case could take more than a year to go to trial — and most believe it will go to trial — or for the sides make a plea deal. Attorneys predicted the proceedings would be moved out of Baltimore, because it would be nearly impossible to find 12 jurors and two alternates in the city who have not been affected by the death of Gray or by the protests and riots that followed.
Analysts said the filing of such serious charges against police in the performance of their duty — in addition to the murder and false-imprisonment charges, four of the officers are accused of manslaughter — is rare. There has been no systematic collection of data on such cases.
North Charleston, S.C., police Officer Michael Slager, who was captured on video shooting a fleeing man in the back, has been charged with murder. But no charges were brought against the officers involved in the deaths of Michael Brown in Ferguson, Mo., of Eric Garner on Staten Island in New York or of 12-year-old Tamir Rice in Cleveland.
The evidence on which Mosby is basing the charges has not been made public, and legal ethics prevent her from laying the case out before the public. On Friday, however, she made it clear she believes that Gray’s arrest was unlawful, that he was not restrained properly inside the van and that the officers failed to request medical assistance several times despite Gray’s deteriorating condition.
The autopsy report could be crucial in telling the story.
All of the officers were charged with misconduct in office. Mosby said the charge would be based on the Eighth Amendment, which protects citizens from cruel and unusual punishment.
Pettit said the charges of false imprisonment were the most unusual. “This is the first instance I have heard of in Maryland of bringing criminal charges for the violation of a citizen’s constitutional rights,” Pettit said.
Andrew Levy, a defense attorney and adjunct professor at the University of Maryland School of Law, said the officers’ lawyers could argue their individual clients cannot be held responsible for Gray’s death.
“If you dissect this from the initial pursuit to the initial detention to the arrest to the transfer to the vehicle, that’s a pretty complicated timeline and I think we’re going to hear lots of defense from individuals basically that will distill down to, ‘It wasn’t my job. I was just following orders,’” Levy said. “Those are not frivolous defenses in a context like this. Not everybody is necessarily responsible for everything.”