This past Thursday Prosecutor Mosby announced that the Grand Jury had formally returned indictments against the six Baltimore officers charged in the death of Freddy Gray.

In our post that afternoon (Freddie Gray Case: Baltimore Grand Jury Issues Indictments, published 5:50PM), we noted that there were some subtle differences between the charges returned by the Grand Jury and the charges originally publicly announced by Mosby on May 1.

In particular, we made the two following observations (in bold-italic, emphasis added here):

Mosby’s May 1 charges had also included “False imprisonment (8th Amendment)”, and that has been dropped.  I see this as an implicit concession that Gray’s arrest was lawful, for the reasons we’ve previously espoused here Freddie Gray Case: Prosecutor Doubles Down On Wrong Law and here Confirmed – Freddie Gray’s Knife WAS Illegal and here Freddie Gray’s Knife – Why is Prosecutor Claiming Unlawful Arrest?

Similarly, every one of the officers who was charged with “False imprisonment” by Mosby on May 1–meaning Rice, Nero, and Miller, the three arresting officers–has had that charge dropped by the Grand Jury.

In its place has been added “Reckless endangerment (5 years), which I interpret as Mosby’s new “safe charge”–that is, the charge on which she hopes to get a conviction even after her case otherwise implodes for lack of evidence.

It is notable that this “Reckless endangerment (5 years) has been added as a charge against each and every one of the six officers, none of whom were previously charged with this offense.

Hours later (9:23PM), the Baltimore Sun published a report in which they cite local legal experts making the same observations (Subtle differences after indictment in Freddie Gray case could be sign of shift in thinking).

In particular the Baltimore Sun reports that:

Baltimore lawyers who are not connected to the case say some of the changes could mean prosecutors are focusing less on Gray’s initial arrest — which State’s Attorney Marilyn J. Mosby said this month was unlawful — while others suggest prosecutors are trying to give themselves a backstop should any part of the case prove faulty.

And:

Page Croyder, another former prosecutor, said it was possible that Mosby’s office decided the false imprisonment charge was a mistake and did not offer it to the grand jury as an option.

Another change: All the officers now face a charge of reckless endangerment, a misdemeanor with a maximum sentence of five years in prison.

Croyder said adding that count — probably a decision made by prosecutors, rather than the grand jurors — gives prosecutors a fallback charge at trial if they struggle to convince a jury of the weightier offenses.

(Emphasis added.)

(Note: We’ve previously posted on former prosecutor Page Croyder’s critical assessment of Prosecutor Marilyn Mosby’s conduct in the Freddie Gray case, here:  Freddie Gray Case – Former Prosecutor Rips Current Prosecutor.)

Full disclosure: in our earlier post(Freddie Gray Case: Baltimore Grand Jury Issues Indictments) we ended up hedging our bets on the implications of the removal of the false imprisonment charges, because when Mosby read aloud the Grand Jury charges on Thursday she spoke the words “Misconduct in office, illegal arrest.”

Those words, however, do not appear in the text of the Grand Jury charges distributed by her office.  Instead, that text simply includes “Misconduct in office,” which was already one of the charges against the officers back in May 1, when they were also charged with false imprisonment.

Were the “false imprisonment” charges simply shifted over to “misconduct in office”? If so, why was this not made explicit in the text versions of the Grand Jury charges? Did Mosby speak in error, or perhaps deliberately added in the “illegal arrest” verbiage because she recognized the dire consequences to her narrative of backing off the claim that Freddy Gray’s arrest was unlawful as she had publicly declared on May 1?

It’s our general policy not to speculate on such matters, but unfortunately that’s the only option left to us because Prosecutor Mosby isn’t talking.  She took no questions following her reading of the Grand Jury charges this past Thursday, and neither she nor her office has yet enunciated any factual elements that could support the more serious charges–such as second-degree depraved-heart murder and involuntary manslaughter–brought against the officers.

Transparency? Not so much.

In any case, it’s worth keeping in mind that obtaining these Grand Jury indictments is no reflection whatever of a  strengthening of Mosby’s case against the officers.  As noted in the Baltimore Sun piece:

In the Gray case, local defense attorney Nicholas Panteleakis said, it’s unlikely the state’s attorney’s office did much more than call a witness to read a statement of facts in support of the charges.

So, receiving the Grand Jury indictments is little more than a checking a box, with no requirement that any substantive evidence supporting the charges be presented to the Grand Jury.

More to come, I’m sure, so keep your eyes right here at Legal Insurrection.

–-Andrew, @LawSelfDefense


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Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog (autographed copies available) and Amazon.com (paperback and Kindle). He also holds Law of Self Defense Seminars around the country, and provides free online self-defense law video lectures at the Law of Self Defense Institute and podcasts through iTunes, Stitcher, and elsewhere.