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Freddy Gray Case: Local Lawyers Suggest Shift in Prosecution

Freddy Gray Case: Local Lawyers Suggest Shift in Prosecution

In Baltimore Sun report local legal experts confirm Legal Insurrection’s observations

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.


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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Mosby’ ability to gain a conviction rests substantially on her ability to keep the trial in the hands of the inflamed proletariat of Baltimore.

    Estragon in reply to sequester. | May 24, 2015 at 1:16 am

    Mosby has to be an idiot, else she would step aside as prosecutor for this case. By insisting on doing it herself, she is setting herself up for more blame.

    The case is a dog, but if someone else loses it, she can just shrug and wink and “the community” will proclaim she might have won it.

    Defendants should insist on a change of venue, of course.

Humphrey's Executor | May 23, 2015 at 10:29 am

Isn’t there an actual bill if indictment that sets forth the who what when where?

    In the Federal system the defendant can request a Bill of Particulars which is a detailed formal list of claims and charges made by the Government.

    I’m not sure whether that is part of Maryland criminal procedure.

I’m watching this verdict to be read with this Ohio Police trial. What the heck is this “judge” doing? I thought he was going to read a verdict but he’s spent nearly 30 minutes going over the case again opening with a very community-oriented address.

Sounds like they’re going to hose these officers.

Andrew, with your access to Maryland case law, what have you found WRT “Misconduct in office” being used in the fashion that Miss Marilyn is attempting here?

The only reference I find shows it being used for things like a LEO abusing overtime.

    platypus in reply to Ragspierre. | May 23, 2015 at 11:43 am

    Well Rags, it should be obvious that they deliberately injured Gray knowing that it would result in massive paperwork thus increasing overtime.

    Looks like the cops are toast. They should do a plea bargain.

      Ragspierre in reply to platypus. | May 23, 2015 at 11:58 am

      Nonsense. I think these charges will be VERY difficult to prove.

        MouseTheLuckyDog in reply to Ragspierre. | May 23, 2015 at 1:52 pm

        Low rumbling, getting louder and louder. Becoming a deafening rumbling. Buildings shake. Is it an earthquake?

        no it’s just the Space Shuttle going over Rags head.

        JackRussellTerrierist in reply to Ragspierre. | May 23, 2015 at 7:18 pm

        I think Platypus was being sarcastic, unless s/he is all wet again. 🙂

    MouseTheLuckyDog in reply to Ragspierre. | May 23, 2015 at 5:43 pm

    Miss Marilyn
    Mrs. Marilyn

    JackRussellTerrierist in reply to Ragspierre. | May 23, 2015 at 7:03 pm

    I view the Misconduct in Office charge as a printed on vellum with gold-leafed edges invitation to the feds to file civil rights charges against the officers and for punitive awards in the civil suit filed by Mosby’s mentor on her the Gray family’s behalf, some of which will end up in Mosby’s and her husband’s campaign coffers when they next run for office, should the plaintiffs prevail.

Speculating, here.

I wonder if the prosecutor’s office is having trouble figuring out a coherent theory of HOW and WHEN Freddie Gray was injured.

From what I have read so far, there is video of the initial Terry stop, search, arrest and of Freddie Gray entering the police van. There is video of the van being driven, and what has been disclosed so far is that it was not a “rough” ride for at least some segments of the trip. There is video of Gray being taken out of the van, and shackled due to his obstreperous behavior in the van, which suggests but does not prove he had not yet received a catastrophic injury.

After he was shackled, he was placed in the van, face down, which in and of itself should not be a problem, assuming he was still easily capable of rolling over, if he wanted to.

If he was not seriously injured by the time he was shackled, the initial arresting officers are not guilty of any crime.

If the driver of the van did not drive irresponsibly, he is not guilty of any crime.

So, I do not understand how and when Freddie was injured.

    Ragspierre in reply to Valerie. | May 23, 2015 at 1:10 pm

    “I wonder if the prosecutor’s office is having trouble figuring out a coherent theory of HOW and WHEN Freddie Gray was injured.”

    That’s an excellent set of points.

    ADDITIONALLY, how does the PA PROVE that officers KNEW stuff they simply don’t know, like how to evaluate cervical dislocations or fractures?

    How they KNOW that a prisoner is complaining IN TRUTH when they constantly hear BS from prisoners?

    How do they prove KNOWLEDGE of a high risk from the transport of a prisoner in exactly the same fashion that prisoners have been transported…and are being transported…all across America for decades? Many, many thousands of times?

    I don’t see it happening.

      MouseTheLuckyDog in reply to Ragspierre. | May 23, 2015 at 2:13 pm

      The main problem as I see it, is that they have to prove beyond a reasonable doubt that Freddy Gray did not receive an injury when he was out of sight which may explain things. For example, he may have hit his head wean running away on the overhang of some post.

      I think there are even dead spots of the CCTV footage of his run. BPG has put up a playlist of that fiitage:

      He may even have been injured before the incident began. Perhaps even a few days earlier.

      They have to find a way to prove that didn’t

        rokiloki in reply to MouseTheLuckyDog. | May 24, 2015 at 11:04 am

        The medical examiner will be able to determine if the injury was fresh or happened a few days before. An older wound will show some signs of starting to heal.

        I’ve heard rumors that Grey had recently had spine surgery and that he was supposed to have been home recovering from that when this incident happened.

      JackRussellTerrierist in reply to Ragspierre. | May 23, 2015 at 7:13 pm

      What was the effect of the heroin found in Freddie’s urine as to his ability to control his body movements? His judgment? How much heroin had he taken? Did he swallow the evidence? What were his existing medical conditions, if any, that would lead to his injuries from either seizure from the drugs, a normal paddy wagon ride with expected bumps and turns, or self-infliction, possibly to claim police brutality to get out of trouble and/or to file a lawsuit (not his first)?

        If it turns out self-inflicted (assuming that could even be proven without video), I think this prosecutor will still seek to imprison these officers.

          Char Char Binks in reply to rokiloki. | May 24, 2015 at 8:11 pm

          The defense doesn’t have to prove the injuries were self inflicted, just raise that as reasonable doubt, and not have the prosecution prove it’s unreasonable.

MouseTheLuckyDog | May 23, 2015 at 4:14 pm

§ 3-204. Reckless endangerment.

(a) Prohibited.- A person may not recklessly:

(1) engage in conduct that creates a substantial risk of death or serious physical injury to another; or

(2) discharge a firearm from a motor vehicle in a manner that creates a substantial risk of death or serious physical injury to another.

(b) Penalty.- A person who violates this section is guilty of the misdemeanor of reckless endangerment and on conviction is subject to imprisonment not exceeding 5 years or a fine not exceeding $5,000 or both.

(c) Exceptions.-

(1) Subsection (a)(1) of this section does not apply to conduct involving:

(i) the use of a motor vehicle, as defined in § 11-135 of the Transportation Article; or

(ii) the manufacture, production, or sale of a product or commodity.

(2) Subsection (a)(2) of this section does not apply to:

(i) a law enforcement officer or security guard in the performance of an official duty; or

(ii) an individual acting in defense of a crime of violence as defined in § 5-101 of the Public Safety Article.

Something which is bothering me. The exception seems to exclude use of a vehicle. That would let most of tyhe officers go except for the two who arrested Gray. That is if they say that Gray suffereed the injuries before he was put in the van.

Also doesn’t the PA have to cite what the conduct was?

Clearly, the BS is reading Andrew and LI.

    healthguyfsu in reply to wyntre. | May 24, 2015 at 12:11 am

    Well thought out and cogent step by step argument. Your mother will be proud of you, little parakeet.

IIRC the coroner’s report stated that Gray died of cardiac arrest. This travesty will come to an end with an acquittal of all the officers. As for the rioters, they are all home free. There will be no prosecutions of the THUGS.

The Baltimore Sun tried to warn Mosby on May 18:

“On March 14, 2006, a young woman who worked as a stripper in Durham, N.C., falsely claimed that three Duke lacrosse players had raped her at an off-campus party. Following a brief investigation, the district attorney, Michael Nifong, announced that the grand jury had indicted three players. After the public disclosure of evidence inconsistent with the district attorney’s narrative, the case fell apart and the players were vindicated. Mr. Nifong was later disbarred for unethical conduct, which the chairman of a lawyers disciplinary committee blamed on ‘political ambition’ . . . “

Why they charges of reckless endangerment. Police apparently have immunity but her (fans) don’t what a way to broadcast that(inequality) and further inflame the public

Sorry her (fans) Don’t know that.I can put together a thought just can’t type

Great way to prejudice a jury (no one above law)Why are police immune?

Prosecutor misconduct or stupidity . I say don’t try to have her recused. She will find a way to lay this case off on someone else.SHE could be intentionally sabotaging it. At some point there will be a Democrat in the White House . THEY WILL NEED AN AG

Meanwhile, crime is spiking in Baltimore as police officers pull back from doing ANYTHING that would result in scrutiny of their actions. Police are answering calls and not much more. This is what happens when City officials throw police officers under the bus.