Justice in Baltimore

National Review Online

Tuesday, May 24, 2016

‘To the people of Baltimore and demonstrators across America: I heard your call for ‘no justice, no peace.’” So brayed Baltimore state’s attorney Marilyn Mosby a little over a year ago in announcing charges against six police officers in the death of Freddy Gray, a 25-year-old African-American man who perished following a severe spinal injury sustained in a police van after being arrested.

The case should never have been brought. It is manifest that Gray’s death was a tragic accident, not a prosecutable homicide. The absence of incriminating evidence became painfully clear again on Monday, when officer Edward Nero was acquitted on all counts in the first case to go to verdict.

On April 12, 2015, during a period of intense patrols in a high crime area, police encountered Gray, whose lengthy rap sheet included at least 18 arrests (mostly drug offenses, interspersed with the odd assault and escape charges). The arrest was clearly made in good faith: upon making eye contact with an officer, Gray fled as if he had committed a crime. This raised reasonable suspicion, causing police to pursue him. Upon finally stopping and frisking him, officers found what was later described as a “spring-assisted, one-hand-operated knife.” They placed him under arrest.

As they loaded him into a van for the trip to central booking, Gray was obstreperous. Though a new department guideline called for belting a detainee into a seat for transport, few if any of the police knew of it. Belting was not the departmental practice because it is dangerous: As the officer performs the necessary maneuvers, it puts his holstered firearm in a position where the suspect may attempt to grab it. Plus, Gray’s wild comportment would have made belting difficult in any event. So police instead placed Gray, who was in leg and hand restraints, in a prone position on the floor of the van. The medical examiner concluded that Gray would not have been injured had he maintained that position.

Gray, however, was under the influence of narcotics and remained truculent. At a certain point, he evidently attempted to stand, despite being bound and unable to see outside the van to judge traffic conditions. As the van moved, he appears to have careened violently into its interior, suffering an injury similar to that experienced by a diver in shallow water. During the course of the van ride, police repeatedly checked on Gray, inquired about his condition, and suspected he was faking an injury because he was breathing, responsive, and able to keep his head upright. On a final stop, though, he was unresponsive, and police immediately called for an ambulance. Gray was given medical attention and hospitalized, but died a week later.

Playing to the mob rather than following the evidence, Mosby short-circuited the police investigation of Gray’s death with what she described as her office’s “independent investigation.” Her rash conclusion that a “homicide” occurred was based on errors of rudimentary fact and egregious legal analysis.

She publicly alleged, for example, that the knife police seized from Gray was legal to possess under Maryland state law. Thus, since the police had not seen him commit a crime, she speculated both that they had no probable cause to apprehend him, and that his detention consequently amounted to the crime of false-arrest.

It soon emerged, however, that the knife was illegal to possess under Baltimore municipal law — something one might think the city’s chief prosecutor would know. More significantly, even if the police had been wrong, a police officer who makes an error of law that leads to an unjustified arrest commits a mistake, not a crime. As any competent prosecutor would know, a contrary rule would paralyze police into refraining from making arrests, leading to an explosion of crime.

So Mosby was forced to dismiss the false arrest charges she’d filed against three officers. Furthermore, she sat on the medical examiner’s report, which acknowledged that the officers had not intended to harm Gray, and that the homicide finding — which Mosby appears to have influenced — was based on sheer conjecture.

The charges of “depraved heart” murder (brought against one officer, the van driver) and manslaughter were simply ludicrous under the circumstances. Here, Mosby contended that the failure to belt Gray into his seat amounted to gross negligence. But the failure to follow an internal police guideline is not a crime even if the officer knows about the guideline, which some if not all of the cops in this case did not. And even if there had been gross negligence, which the facts do not support, that would not suffice to prove “depraved heart” murder, which involves a wanton, monstrous indifference to human life (e.g., shooting a gun into a crowd).

Mosby compounded the atrocious legal reasoning with unethical deception. As she talked up the case in the media, she delayed required disclosures of key exculpatory facts to the defense — e.g., the fact that Gray had been under the influence of drugs at the time of his arrest, and that in the weeks prior to his death he had claimed prior back injuries, which could conceivably have contributed to his fatal injury.

Simply stated, the case is a disgrace. This is not to say the police conduct was above reproach. Any errors, however, called for administrative discipline, not a criminal prosecution, let alone one evoking the specter of cold-blooded murder. Yet, even as it has become increasingly clear that the charges are absurd, Mosby has persevered in them.

Nero is the second cop in the case whom Mosby has failed to convict. Last December, a mistrial was declared when a jury failed to reach a verdict on manslaughter, assault, and two lesser charges in the case of officer William G. Porter.

With the six defendants slated to be tried separately, Mosby’s office strategically chose to start with Porter. Realizing the weakness of their case, they hoped that Porter, if convicted, might be persuaded to cooperate as an accomplice witness against the others. Yet, there was scant proof against Porter. He plainly should have been acquitted (and reportedly, the jury was overwhelmingly in favor of that result on the main charges), but the trial ended in a hung jury. This surely owed to both the incomprehensible refusal by the court to transfer the case out of Baltimore, and the atmosphere of intimidation stoked by Mosby, which signaled to jurors that violence would result if “justice” were not done.

So Porter has not become a state’s witness, an inconvenience that has led prosecutors to make the mindboggling suggestion that he could be compelled to testify with an “immunity” order but then prosecuted anyway. Presumably, no court would countenance so blatant a Fifth Amendment violation.

Seeing which way the wind was blowing, though, Officer Nero opted for a bench trial before Judge Barry Williams rather than a trial before a jury under Mosby’s prejudicial influence.

The case against Nero was meritless even by Mosby standards: He was not responsible for either Gray’s arrest or placement in the van. He merely participated in processing the arrest after it was ordered by his superior officer, and he rode as a passenger — an additional officer for security purposes — in the front of the van. For this, Mosby charged him with assault, reckless endangerment, and two allegations of misconduct in office.

The trial ended last week. Predictably, Judge Williams swiftly pronounced Nero not guilty on all counts Monday morning.

Will this latest embarrassment finally induce Marilyn Mosby to pull the plug on this shameful prosecution? Freddy Gray’s death was a tragedy. So is the death of due process in a great American city.