At best, it is amateur hour.
At worst, the rash decision by Marilyn Mosby, the Maryland state’s attorney for Baltimore City, to bring an array of internally inconsistent charges, including murder, against a half dozen police officers in connection with the death of Freddie Gray is a frightening display of state complicity in mob justice.
Three of the arrested officers, including the one facing the most severe charge of second-degree murder, are African-American. We’d better hope that black cops’ lives matter.
I was attending a conference on Friday. It was thus my good fortune, when asked for a first impression of the charges, not to have heard Ms. Mosby’s embarrassing speech announcing them.
The chief prosecutor, in what can only be described as a gift to defense lawyers, proclaimed that she’d brought the charges to show not only “the people of Baltimore” but also “the demonstrators across America” that “I heard your call for ‘no justice, no peace.’” When I say this was embarrassing, I am not just making a stylistic critique that prosecutors should not speak like community organizers. It is a professional assessment.
Competent prosecutors charge crimes only when there is evidence sufficient to prove that specific laws have been broken. A government lawyer who publicly asserts that her case was brought for the purpose of dousing inflamed passions, satisfying political agitators, or even easing real suffering undermines the prosecution. It’s not just the wrong thing to do; it’s the dumb thing to do.
At the eventual trial, Ms. Mosby’s main audience is not going to be fawning journalists and anti-police activists. There are going to be experienced defense lawyers sowing doubt into the record, and a judge who instructs a jury that the case rises or falls on the strength of the evidence, not the “call for ‘no justice, no peace.’” When defense lawyers can use the prosecutor’s own words to show the jury that the mob, not the evidence, drove the prosecutor to file charges, the case is severely damaged. The prosecutor is apt to lose a case that should have been won.
So, if I had heard the speech, I would strongly have suspected two things: first, Ms. Mosby is in way over her head; second, her charging decision was driven by politics, not evidence. But I hadn’t heard the speech. All I had to go on was the breakneck speed at which charges were brought despite the case’s factual complexity, and the charges themselves, which spread quickly across the Internet after being disseminated by the prosecutor’s office. Based on this information only, I strongly suspected two things: first, Ms. Mosby is in way over her head; second, her charging decision was driven by politics, not evidence.
Procedures vary from jurisdiction to jurisdiction, but ordinarily when a person is arrested on something other than a grand jury indictment, the charges are accompanied by a narrative statement from an investigating police officer, usually under oath, explaining the probable cause for the offenses alleged.
In the case of the six officers charged in Mr. Gray’s death, however, there was no such document made publicly available.
Instead, we got only the list of charges. To get the narrative we’d normally expect from the state, we needed to turn to the New York Times, which usefully combined claims in Ms. Mosby’s speech with other information made public before charges were filed in order to develop a timeline of key events.
It appears that Ms. Mosby filed charges as soon as the medical examiner (ME) determined that Mr. Gray’s death was a homicide. But as I explained in connection with the death of Eric Garner after an altercation with police on Staten Island, an ME’s conclusion that homicide occurred is not a judgment that murder or even some lesser form of culpable killing occurred.
Homicide simply means death was caused by some course of conduct — conduct that could, in theory, be innocent. A competent prosecutor knows it is a long way from the ME’s pronouncement of homicide to a compelling case that murder has been committed.
Yet, Business Insider’s Peter Jacobs reports that the Baltimore Police Department was stunned by Ms. Mosby’s sudden announcement of charges on Friday. The BPD was still in what it considered the early stages of its investigation. Cops were working off a checklist of 145 investigative tasks to complete, and had plans to work through the weekend amassing additional reports for the prosecutor.
Ms. Mosby forged ahead without any of this information.
A competent prosecutor does not charge first and investigate later. That inevitably leads to gaps in the proof. Worse, it leads to inconsistencies in the charges filed. Those are a defense lawyer’s dream.
In a criminal trial, a prosecutor cannot get away with incoherence. Sometimes, the defense lawyer can: one day the defense is “mistaken identity”; the next, it’s “my client did it but he didn’t mean it”; the next, it’s “he meant it but he was coerced”; and so on. This is not an effective way to build credibility with the jury, but defense lawyers at least have a prayer of pulling it off for a simple reason: they have no burden to prove anything. Defense lawyers are in the business of knocking the case down. If counsel can convince just one juror to doubt the state’s case based on any one theory, no matter how cockamamie, there can be no conviction.
The prosecutor does not have that luxury. Prosecutors are in the business of building the case, for they bear the burden of proving it beyond a reasonable doubt. A competent prosecutor’s job, then, is to develop a coherent theory of guilt. This can only be done by subjecting the evidence to intense scrutiny before filing charges, and then charging the offense(s) that best fits the proof. That way, the case can withstand defense attacks. Juries tend to convict when they’ve gained confidence that the prosecutor knows what happened and proved it convincingly.
By contrast, juries acquit when the state makes allegations that collide with each other. You can hear the defense lawyers now:
If the prosecutor herself cannot figure out what happened here, how can you fair-minded ladies and gentlemen of the jury possibly conclude, unanimously, that there is proof beyond a reasonable doubt supporting a murder conviction?
In a serious, complicated matter, it can take a while for a prosecutor to figure out what happened and to charge the case accordingly. But it is a while worth taking: better to delay and get it right than undermine what may be a winnable case by filing something that suggests the prosecutor is more confused than convinced by the evidence.
To the contrary, Ms. Mosby has filed charges that convey four different theories of homicide.
Let’s consider the officer described as most culpable, Caesar R. Goodson Jr., who apparently drove the van in which Mr. Gray was fatally injured. Against him, the prosecutor levels charges of (1) second-degree murder, on the theory known in Maryland as “depraved heart” (and known in some other jurisdictions as “depraved indifference”); (2) involuntary manslaughter; (3) vehicular manslaughter by gross negligence; and (4) vehicular manslaughter by criminal negligence.
We’ll start with the first two. “Depraved heart” murder requires the prosecutor to prove that the defendant caused a loss of life intentionally while exhibiting a shocking indifference to human life. By contrast, involuntary manslaughter is an accidental killing — which means, naturally, that there was no intent to cause a loss of life.
One with a depraved heart does not act by mistake — the classic example is the savagery of a shooter who willfully fires a gun into a crowd of people, knowing but not caring that someone will likely be killed. That is the near antithesis of negligently causing an accident that results in death.
So what are we to make of Officer Goodson? Is he a fiendish depraved killer or a clueless bumbler? Based on what the prosecutor has charged, who knows?
There are grave reasons to suspect police misconduct in Gray’s death. But the charge of second-degree murder appears to be patent overreach. One is instantly reminded of the politicized overcharging of George Zimmerman in the case involving Trayvon Martin’s death (which I wrote about here, here, here, and here). There are salient differences: Zimmerman was acting in self-defense under fear of impending death, whereas the Baltimore police had Gray under their control and had a duty to keep him secure in their custody. That suggests that a charge based on negligence — the failure to carry out a duty of care — could be warranted in Gray’s death in a way it wasn’t in Trayvon Martin’s. But in both cases, the allegation of depraved heart murder appears specious.
In the Gray case, defense lawyers are sure to argue based on the video evidence that the victim had some physical problem before he was placed in the van. To be sure, that would indicate that police should have gotten him medical attention promptly and taken extra care to secure him in the van, neither of which the police apparently did. But second degree murder?
Goodson would not even have been able to see Gray from the driver’s seat. Ms. Mosby seems to have pulled her punches on the notion that police intentionally gave Gray a “rough ride”; and the timeline illustrates that police checked on Gray periodically. It certainly appears that they should have gotten Gray medical attention when those checks indicated he was suffering — but depraved heart murderers do not stop to check on the victims they are killing.
Ms. Mosby highlighted the police failure to fasten a seatbelt on Mr. Gray. That does appear to have been a negligent omission, although it could turn out that there was a plausible explanation — maybe Gray struggled against application of the belt, or maybe the police believed that fastening the belt would have exacerbated whatever pain Gray was complaining about. In any event, it was only within the last few weeks that regulations were amended to mandate use of the seatbelt. The officers’ failure to fasten a seatbelt on a passenger was almost certainly wrong. But even so, it trivializes the inhumanity inherent in depraved heart murder to make the failure to fasten a seatbelt the basis for a second-degree murder charge.
Theories 3 and 4 both charge vehicular manslaughter — respectively, by “gross negligence” and “criminal negligence” in operating the police van. Note, again, that these are forms of involuntary manslaughter, meaning there was no intent to kill Mr. Gray. Consequently, they cannot be squared with the “depraved heart” murder charge.
Ostensibly, the two vehicular manslaughter charges involve different states of mind: with “gross negligence,” the defendant is aware that his actions in operating a vehicle create a substantial and unjustifiable risk of death; with “criminal negligence” the defendant is not aware that his actions create such a risk. Yet, the two charges turn out to be nearly indistinguishable – such that Maryland courts have been known to equate them.
That’s because even though the criminally negligent defendant is not aware of the risks he creates, the statute elaborates that he “should be aware” and therefore that his actions constitute “a gross deviation” from the standard of care a reasonable person would exercise. Clearly, there is not much daylight between “gross negligence” and “gross deviation” from a duty of care. Thus the only real difference between the two charges is the potential sentence — vehicular manslaughter by gross negligence is considered a felony with a potential ten-year jail sentence; vehicular manslaughter by criminal negligence is categorized as a misdemeanor even though it carries a potential three-year jail sentence. (The jail sentence for most misdemeanors is a year or less.)
This highlights another problem with Ms. Mosby’s approach. Under double jeopardy principles, the defendants cannot be convicted on all the varying homicide charges she has brought. When offenses are so similar to each other that one might be regarded as a subset of the other — known in the criminal law as a “greater offense” and a “lesser-included offense” — double jeopardy principles bar prosecution for more than one of them.
To navigate this legal issue, and to serve the overarching aim of presenting a single, coherent theory of guilt, experienced prosecutors will usually charge only the most severe provable offense. This way, a clear, non-contradictory, evidence-based narrative can be built around that charge. It is then up to the defense lawyers to ask for the jury to be presented with the possibility of convicting on lesser-included offenses — a strategy that reduces the likelihood of acquittal but increases the chance that the defendant will avoid conviction and sentence on the most severe charge.
Here, to the contrary, Ms. Mosby has thrown against the wall several different homicide charges with all their internal distinctions that will force trial prosecutors to make contradictory arguments about the police officers’ actions and states of mind. She’s obviously hoping that something will stick.
There are abundant grounds to investigate the police officers who mishandled Mr. Gray. It is likely that at least some of them should be prosecuted for involuntary manslaughter — causing death, without intending to do so, through negligent acts or omissions. But because Mr. Gray died, the mob wanted a murder charge. Ms. Mosby, like the failed, politicized prosecutors of George Zimmerman in Florida, was determined to give them one, even if that meant rushing to file charges and ignoring the lack of evidence of murderous intent. Perhaps she believes that if the mob can push the prosecutor into charging, it can pressure the jury into convicting.
That is why the saving grace of the case may be the element no one seems to want to discuss: the fact that three of the police officers charged are black. The left omits this fact because it undermines the demagogic theme of white cops persecuting young black men. The right elides mention of it, mostly out of conviction that justice should be blind to race. But it is foolish to ignore the race of the defendants. Race, after all, is the reason cases involving the death of suspects after altercations with the police have gotten so much attention nationally.
A race-obsessed environment that insists “justice” for Freddie Gray dictates a murder prosecution against the police will, at some point, have to see that justice also requires a fair trial for the police officers. When the grievance industry finally comes down from celebrating Ms. Mosby’s pandering, it will dawn on many in Baltimore, and on at least some in the media, that it is ludicrous to believe black police officers are innately biased against young black men.
At that juncture, one hopefully suspects, the case will no longer be about “social justice.” It will be about real justice: a careful examination of the state’s charges and the evidence offered in support of them. When that day comes, the prosecutor better have more to say than “no justice, no peace.”