A primer on the Freddie Gray trials

A lot of people still don’t know the basics about the death of Freddie Gray and the trial of six Baltimore City police officers. I understand people have other priorities, but many of those with no clue still hold very strong opinions. So here’s a selective primer on the trial of the officers in the death of Freddie Gray.

Update, June 27: (Don’t want to say I told you so, but…) all charges have been dropped.

Update, June 15: We’re in the middle of the Goodson trial (the van driver). And ready to call it all. It’s over. Everybody is going to be acquitted.

Legal Summary Update, June 8: This has been surprisingly hard to figure out, because the State’s Attorney, Mosby, has repeated changed her story. Initially she claimed the stop was illegal and the arrest was illegal. But that was false. There was clear reasonable suspicion for the stop, and the knife is probably illegal — or at least a reasonable officer could believe so, as said by a court commissioner — so the arrest was legal. (And no, despite what Mosby has argued, cops don’t have to ask about the legal justification for a foot pursuit to join in.)

So what the prosecution tried to argue, which is really quite absurd, is that because of the length and style of the detention — the time when Gray was already in handcuffs (as is standard after catching a fleeing suspect), at some point during the period between the legal stop and the subsequent arrest — at some point the stop became an arrest before the knife was found. And at the point of arrest, the legal standard needed by police would rise from “reasonable suspicion” to “probably cause.” So if an arrest happened before the knife was found, police officers would not have had probable cause for an arrest. This is an amazing, novel, and almost incomprehensible legal argument. And it rightly failed in the trial of Officer Nero.

The other issue that will come into play, especially in the Goodson trial, is denied medical care. It’s not clear that this happened at a criminally negligent level. But even if there was no crime, at least the basic legal argument here makes sense.]

[The original post starts here]

Fact 1: Freddie Gray had not been injured when police put him in the wagon. Video not withstanding (yes, he looks hurt to me, too), this seems to be the greatest misunderstanding. The medical examiner’s report was clear that Freddie was physically OK when he went in the van. I defer to the doctor. Also, arresting officers are being charged with everything including the kitchen sink, but they are not being charged with hurting Gray. This is not in doubt. This is not what the trials are about. Gray was hurt after being put in the van and (obviously in hindsight) wasn’t given essential medical care.

What this means: Before he was put in the van, Gray raised a fuss to attract attention and went limp, so officers had to carry him into the van. This is hardly unheard of, by the way. It doesn’t necessarily mean he was totally faking it, though that could be. Maybe Gray was honestly claustrophobic. That could be for real. One officer I know knew and arrested Gray. He said Gray never resisted arrest, but he would freak out when confronted with the closed confined reality of being in the wagon. But the important thing to understand is that the video that started this all, that led to riots, and this prosecution, is now almost a non-issue.

Fact 2: Gray died as a result of a major injury sustained in the police van. Gray suffered very severe impact to his neck, similar to a diving injury, which caused major damage to his spinal cord. His spine did not snap, but the nerves were so broken that it was “like” his spine had snapped. We don’t know exactly how this damage happened. But we do know it happened in the police van. After picking up Gray, the police van made five stops en route to the Western District police station. One of those stops happened because Gray was raising such a fuss that the van driver stopped to further restrain Gray. The van even picked up at least one other prisoner, who reported nothing unusual in terms of crazy driving.

What this means: While Gray’s death could have been caused by an intentional effort by the wagon driver to hurt Gray, it’s equally likely it was an accident. In the end, Gray was shackled by his hands and feet and placed on the floor of the van, face down and head first. My guess is that either Gray slid forward when the van braked, slamming his head into the front wall. Or Gray tried to get up and failed, cracking his head on the hard bench falling down. Is there a better and more expensive way to transport prisoners? Sure. But Baltimore won’t pay for a better system because Baltimore is broke.

[May 16 Update: from twitter.]

It might be worth mentioning, not to say I didn’t understand the theoretical concept, but as a former Baltimore cop I wasn’t even familiar with the term “rough ride” until these events. Baltimore police culture does not allow you to pass your dirty work to another cop. If you wanted to hurt a prisoner, you would need to do it yourself. And you don’t mess with a guy after the cuffs go on.

Fact 3: A prisoner is your ultimate responsibility. A human being is literally in bondage, and you are their keeper. When you have a prisoner, you are 100-percent responsible for their well being. You can’t go into police custody alive and come out dead. Period. If you make an arrest, the prisoner is yours until the wagon driver assumes responsibility. When this happens, the wagon driver will search the prisoner (again), and there will be a swapping of handcuffs (unless disposable flex cuffs were used in the original arrest). Responsibility of the prisoner transfers exactly at this moment. (It’s also, as a prisoner, your last good chance to make a break for it!) When you get your cuffs back, the prisoner is no longer your responsibility. This is actually one of the very few clear-cut understandings in a police world generally lacking in them. (Responsibility transfers again at Central Booking. But Gray never made it there because Central Booking won’t take prisoners who need medical care. Despite obvious need, there is no doctor at Central Booking. Why not? you might ask…)

What this means: If Gray went into the wagon OK, the responsibility for his death, right or wrong, falls on the wagon driver. Those are the rules. This doesn’t imply intent or even criminal action on the driver’s part. But prisoners are not allowed to die in your custody. Period. (well, maybe if they have late Stage 4 cancer or something… )

Fact 4: This is more of a “fun fact.” But it seems worth mentioning. It was a directive from the State’s Attorney that directly led to Gray running from police on a Sunday morning and dying. Ironic, no?

On March 17 (three weeks before Gray’s arrest on April 12, 2015) Joshua Rosenblatt, working for Baltimore City State’s Attorney Marilyn Mosby (the State’s Attorney is the elected public prosecutor, known in some other places as a District Attorney), contacted the Western District Police Station (one of nine police Districts in Baltimore City) and asked them to target the corner of W North and N Mount “for enhanced prosecutorial (and hopefully police) attention.” [May 17 update] I think this pressure originated from the Fulton Baptist Church, a block away, whose parishioners got tired, in their Sunday walk from their car to their church, of being bothered by drug dealers, addicts, and small-time hustlers like Freddie Gray.

Baltimore Police Lt. Brian Rice (whom I worked with briefly, back in the Eastern, many years ago) received instructions to begin a “daily narcotics initiative” focused on North Avenue and Mount Street. “Daily measurables” would be collecting on their progress.

Over the past few years there has been (by my rough calculation) an average of one homicide every three months just within 1,000 feet of this intersection! We’re talking four murders a year in 1/7th of a square mile.

What this means: Police officers would love to reduce crime and solve neighborhood quality-of-life issues, but when orders come to produce “daily measurables,” “stats” they will produce. This means stopping people, making low-level discretionary arrests, and otherwise hassling the drug dealers, drug addicts, and other hangers-on of this drug “shop.” This may not be ideal policing, but it isn’t necessarily bad policing. (You got a better idea?) For what it’s worth, during the weeks of “special attention,” there were no homicides.

Fact 5: These are weak cases, criminally. Just because somebody died doesn’t mean one officer, much less six, is guilty of any crime. It is close to undisputed that the police chase, stop, detention, frisk, search, and arrest of Freddie Gray were legal. Things get complicated here, as Mosby is throwing in every charge she can think of, but case law and precedent are very well established here. The legal case against the officers for what they did do (as opposed to what they didn’t do) is incredibly weak.

What this means: Soon after Mosby charged the cops, she would modestly take credit for ended the riots. This was contrary to reality (the riots had already ended) and legal ethics (you can’t charge innocent people to placate a mob). In her rush to bring charges against cops, Mosby’s office seemed shockingly unclear about both what happened and basic legal concepts related to stop and frisk (yes, that is a possibility).

You do not need “probably cause” to “stop” somebody; you need “reasonable suspicion.” (I’m putting the legal terms in quotes.) The Supreme Court has specifically ruled on the matter of running from a drug corner (Illinois v Wardlow). Running is not a crime, but running from a drug corner at the sight of cops gives police “reasonable suspicion” to justify a “stop.”

The concepts of “reasonable suspicion,” “stop,” and “frisk” all come from Terry v Ohio (1968). Terry gives officer the right to “frisk” a suspect for weapons. During a “frisk,” which is defined as a patdown of outer clothes for weapons, you might feel “contraband” (a weapon or, in most states, drugs). If you can “articulate” this based on “plain feel,” you now have “probable cause” to “search” that area and dig out whatever is there. If it’s illegal, you can arrest the person.

Currently (May 2016 trial of Nero) the prosecutor is claiming that Terry doesn’t give officers reason to detain Gray for any length of time. This is downright crazy. It won’t work. If Judge Williams thinks otherwise, his decision will A) be overturned on appeal or B) Maryland v. Nero will become a landmark Supreme Court case that overturns years of established legal precedent.

In this case Gray had a knife that most likely violates Baltimore City ordinances. There’s ambiguity here as to what the law means, with its reference to an “automatic spring.” But — and get this — even if the knife were legal, it wouldn’t automatically make the arrest illegal. The legality of the knife would matter only to the prosecution of the suspect with the knife. The legal standard by which a police officer is judged is “reasonableness.” Could a reasonable officer believe the knife was illegal? Yes, especially if it is. And given that the prosecutor’s office won’t show us the knife, I suspect there’s no question here. But we don’t know for sure.

Now make no mistake, officers wanted to arrest Gray because Gray ran. That’s the penalty for making cops break a sweat and chasing you on an otherwise quiet Sunday morning. But running is not a crime. (We sardonically call it “felony running.”) And if Gray had had no knife (and cops couldn’t figure out some other minor charge to get him on) cops would have had to let him go.

Fact 6: It is departmental policy to seat belt suspects. But it is not a law.

What this means: It’s not clear. Is failure-to-seat belt negligence? We’ll see. But it’s a stretch.

And then things get downright curious here… (Not as curious as, say, sabotaging an FBI investigation about police overtime at a Staples by breaking into a secret internal affairs office, stealing files, and then dumping them in a Dunkin Donuts dumpster curious… but curious). So there was this memo that was supposedly issued just a few days before Gray’s arrest clearly mandating seatbelt use. The department issues its first memo in 17 years on seatbelt policy just a few days before Gray’s arrest and consequent shitstorm? What a coincidence. I don’t know anybody who saw this email before Gray’s death. In other words, the memo may have been backdated.

Could the department and the State’s Attorney not know police department policy? Sure. There’s no index in the book of “general orders.” You can’t just quickly look something up. All this said, the irony is that the new memo issued a policy that already was department policy! I just don’t think they knew this.

Regardless, policy isn’t law. And department policy can and should be ignored, depending on the circumstance.

In my days most suspects were belted in. Now, they say, not so much. Either way, it is the wagon driver’s responsibility. I think common practice changed because now there’s a middle barrier in the van (for prisoners’ safety, from each other). Space is very tight. And if a suspect is resisting, it indeed may not be practical or safe to use a seat belt. In this case, there was an angry crowd on the scene (being fed false rumors by Gray’s friend, Brandon Ross). And Freddie Gray was thrashing around, uncooperative. The police goal then is to get out of there before things get really ugly.

Fact 7: After the riots on April 27, 2015, violent crime in Baltimore doubled. Overnight. I know of no other time in human history that violent crime changed so dramatically on one specific day. Overall, homicides increased from 211 in 2014 to 344 in 2015. Literally (roughly) one in every 220 black men aged 18 to 34 was murdered in 2015. Think about that. This is a solider-in-war level of mortality. This is shameful. This is wrong.

What this means: Policing in Baltimore changed after the riots and the criminal prosecution of the six officers, at least five of whom did nothing wrong. Murder and rising violence should be higher on our list of concerns. Many on the anti-police left want police to have less discretion and be less proactive. And this is what happened, out of choice and necessity. We see this correlated with increased violence and homicide. And yet so many, mostly on ideological grounds, try to deny this reality or downplay its significance.

Summary: Gray died in police custody. You’re not allowed to die in police custody. But that doesn’t necessarily make death a criminal act. We have a tort system and civil lawsuits to resolve cases of accidental deaths. But, you might be asking:

If the cops are so not-criminally guilty, why is Baltimore’s leadership wasting so much time and effort prosecuting six innocent police officers? Is Mosby really attending the trial and is her number-two person the trial attorney? This is a misdemeanor case. Who’s minding the shop? Doesn’t Mosby, well, have better things to do?

Well, you’d have to ask her, but apparently, in a city with hundreds of unprosecuted murders, she doesn’t think so.

And do consider that Mosby and Mayor Rawlings-Blake may simply not be good at their job (and include former police commissioner Batts in this category). I mean, you can form your own opinion, but Baltimore might have really bad elected officials. The mayor inadvertently stoked the riot by saying, and I quote: “We also gave those who wish to destroy space for that as well.” She said these “space to destroy” remarks were “mischaracterized.” But she never corrected or clarified them. The riots were her Ray Nagin’s Katrina moment. Later the mayor had the gall to say that other cities should be envious to have had such a little riot. Even with skyrocketing crime rate and crumbling infrastructure, you can win elections in Baltimore by being a “progressive” “reformer” calling for “justice” against the police. You don’t seem to lose your job by doing a bad job.

As to State’s Attorney Mosby, here’s what I think: after watching the video of Gray being led to the van and listening to people unclear on legal concepts, Mosby decided Gray was illegally arrested and severely injured by the arresting officers. In her rush to bring charges, Mosby jumped the gun. Turns out she was wrong about what happened. (Hence the now-dropped assault and false imprisonment charges.) When facts (such as the medical examiner’s report) became known, they didn’t support her Plan A, so she had to go to Plan B or C. Admitting she made a mistake (which actually is a prosecutor’s ethical responsibility) is not going to happen. And honestly, Mosby, who comes from a long line of bad cops, may have deeper issues with cops and police departments. But no matter my Freudian analysis, Mosby’s political career — not to mention her Vogue appearances — hangs in the balance. She can’t afford to lose.

The police officers being charged (and trial dates as of March 16):

Officer Edward Nero is on trial for second-degree assault and misconduct in office. (He was originally also charged with false imprisonment.) These charges have nothing (except politics) to do with the death of Freddie Gray, which makes the case both weak and somewhat absurd.

Update, May 23: Nero was acquitted on all charges. Judge Williams did not buy the “accomplice theory,” saying it is “not an appropriate application of the law.”

Officer Caesar Goodson June 6. As the van driver, he faces the most serious charges: second-degree depraved-heart murder (nobody is really clear what “depraved-heart” means), manslaughter, second-degree assault, two counts of vehicular manslaughter, misconduct in office and reckless endangerment.

Officer Brian Rice July 5, involuntary manslaughter, second-degree assault, two counts of misconduct in office, and reckless endangerment. (He was originally also charged with false imprisonment.)

Officer Garrett Miller July 27, second-degree assault and misconduct in office. (Also originally charged with false imprisonment.)

Officer William Porter September 6 for a retrial after his first trial ended in a hung jury on charges of involuntary manslaughter charge, second-degree assault, reckless endangerment, two counts of misconduct in office.

Officer Alicia White October 13, involuntary manslaughter, second-degree assault, misconduct in office and reckless endangerment charges. Rice also faces an additional count of misconduct in office.

The other players:

Freddie Gray: Died in police custody.

Brandon Ross: Gray’s friend and a witness who recorded Gray being dragged to the van and falsely claimed that Gray was beaten and tased by the arresting officers. He’s since been arrested for stabbing somebody.

Michael Schatzow and Janice Bledsoe: Attorneys prosecuting Nero.

Judge Barry G. Williams: The judge. And since Nero’s trial is a bench trial. He alone makes the call. No jury.

Marc Zayon: Nero’s attorney

Bystanders that pop up include Freddie Gray’s civil lawyer William “Billy” Murphy. If it’s a lawsuit against cops, it’s usually Murphy or Dwight Pettit on the case. There’s also Douglas Colbert, a media hound and law professor who is always ready to give an anti-police spin to reporters.

For more on Freddie Gray, see the coverage in the Baltimore Sun.