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Freddie Gray Case: Autopsy report further undermines prosecution

Freddie Gray Case: Autopsy report further undermines prosecution

“Shallow water diving” nature of Gray’s injury further undermines prosecution theory

The Baltimore Sun newspaper has obtained a copy of the autopsy of Freddie Gray, they report, at a time when Prosecutor Marilyn Mosby is still refusing to provide that report and other purported evidence to the defense lawyers of six Baltimore police officers charged in the death of Freddie Gray.  The deadline for defense counsel to receive the report is Friday.

The Sun did not release the report itself, but merely reported on its “take home” finding that Freddie Gray’s neck injury was caused by a “high energy” impact to his head.  As the paper reported:

The state medical examiner’s office concluded that Gray’s death could not be ruled an accident, and was instead a homicide, because officers failed to follow safety procedures “through acts of omission.”

Though Gray was loaded into the van on his belly, the medical examiner surmised that he may have gotten to his feet and was thrown into the wall during an abrupt change in direction. He was not belted in, but his wrists and ankles were shackled, putting him “at risk for an unsupported fall during acceleration or deceleration of the van.”

The medical examiner compared Gray’s injury to those seen in shallow-water diving incidents.

(emphasis added)

In a separate article consisting of an excerpt from the autopsy report the Sun provides the actual report language on this point:

The type of fracture/dislocation documented in imaging studies on admission is a high energy injury most often caused by abrupt deceleration of a rotated head on a hyperflexed neck, such as seen in shallow water diving incidents.

This is simply another nail in the coffin of Mosby’s efforts to prosecute these officers on the serious charges she’s levied against them, which include depraved-heart murder, manslaughter, and assault.

The primary hook from which Mosby is seeking to hang her prosecution of the officers is their purported failure to seat belt Mosby into the van.  Even that hook works only if (1) the officers had a legal duty to belt him in, (2) they violated that legal duty, and (3) their violation was the proximate cause of Gray’s injuries.

But did the officers have a legal duty to belt him in? If so, did they violate that legal duty?  And if that’s affirmative, was their violation the proximate cause of Gray’s injuries.

Every single one of these questions must be answered in the affirmative, and a unanimous jury convinced of their truth beyond a reasonable doubt in order for there to be any hope of a conviction on the most serious (and likely on any) of the charges.

Did the officers have a legal duty to belt Freddie Gray in?

Mosby theory of the case is largely dependent on the purported failure of the officers to seat belt Gray into the van.  But did they have a legal duty to do so?  The police department regulation calling for such seat belting had been in effect only nine days at the time of Gray’s arrest.  Had it even been promulgated to all the officers?  Can the prosecution prove that the officers knew or should have known of this new rule?

On that note, somehow the Baltimore Police department had managed to function (in its own fashion) and drive prisoners around in vans for decades without seat belting them in.  Given that historical context, can it possibly be that failure to buckle Gray a mere nine days after the seat belt rule changed is sufficient to form a depraved-heart malice or a the gross negligence to a readily apparent danger required for involuntary manslaughter?

I suggest not.

Did the officers violate a legal duty to belt Freddie Gray in?

Nevertheless, let us assume for purposes of discussion that the officers did have a nominal legal duty to belt Freddie Gray into the van.

No legal duty is ever absolute.  One must always be prepared for the possibility that a given set of circumstances will justify the waiver of that duty.  This is particularly true where blind adherence to the nominal duty creates a risk of harm to persons.

If the officers who arrested Gray in the van and drove him around had a reasonable and rational basis for not seat belting Gray into the van, then their obligation to adhere to the nominal legal duty of belting Gray into his seat is waived–and this is particularly true if adherence to the nominal duty would have created an increased risk of harm to either the police or to Gray.

Safety of the Officers As Waiving Duty to Seat Belt Gray

Let’s look to the safety of the officers first.

It is not standard police procedure to shackle the ankles of a suspect in a routine arrest, as Freddie Gray’s arrest was.  The legs are typically shackled only when the suspect is non-compliant.  Indeed, Gray was explicitly shackled at the feet because of his non-compliance, as documented by the autopsy report itself:

In fact, the autopsy report itself notes that Gray was in fact not being compliant with his lawful arrest, based on excerpts released by the Baltimore Sun.

[Gray] was assisted to the police van on Presbury Street (1st stop), exhibiting both verbal and some physical resistance.

. . .

The 2nd stop was several blocks down (on Baker Street) to place an identification band and leg restraints on Mr. Gray. Reportedly, Mr. Gray was still yelling and shaking the van.

(emphasis added)

Indeed, so sustained was Gray’s violent movement within the van that a second prisoner not picked up until the fifth stop after Gray’s arrest reported on the tumult.  Again, this is documented in the autopsy report itself:

At this 5th stop (at North Avenue and Pennsylvania Avenue), . . . [t]he second individual was placed in the left hand compartment of the van and the vehicle was driven to the Western District headquarters. By report, this second detainee said that he heard Mr. Gray banging and kicking through the metal divider.

It is very common for officers to avoid standard operating procedures when dealing with a non-compliant suspect, when those ordinary procedures become unreasonably dangerous due to the suspect’s non-compliance.  Seat belting a suspect is perhaps among the first of these SOPs to fall by the wayside when dealing with a non-compliant suspect, because it places the officer at risk of the suspect biting them or spitting on them.  The officer is permitted to prioritize his own safety over the SOP to seat belt a suspect.

In this way the officers’ failure to seat belt Gray can be justified on grounds of officer safety.

If the police make such an argument in with credibility it seems unlikely that Mosby would be able to convince a jury unanimously of the contrary, beyond a reasonable doubt.  And if she can’t, the legal duty is waived and the seat belt issue disappears as a basis for criminal charges.

Safety of Gray as Waiving Duty to Seat Belt Gray

Let’s now look to the safety of Gray.  Yes, the safety of Gray.

Many seem to be assuming that seat belting Gray in the van would have been safer for him than leaving him unbelted, and that therefore the failure to seat belt Gray in place certainly created an undue and unnecessary risk.

They are wrong.

Recall that that Baltimore PD had been driving around suspects without seat belts for decades.  Today, many police departments still do not seat belt suspects into these types of vans.

The reason?  Seat belting them in is actually more dangerous than leaving them unbelted.

Don’t believe me? Let’s step through it.

Most of us, I trust, do wear seat belts when we travel by car.  In doing so, however, we are facing forward in the vehicle, with two to three feet of space between our heads and the dashboard or windshield.  That space is essential to the safe operation, and to realizing the safety benefits, of the seat belt.  Anybody who has ever experienced a hard stop while belted in a passenger car knows that your head moves forward a notable distance before that motion is restrained by the seatbelt.  In a forward facing position this is no problem, as your head has the necessary open space to travel that distance and not strike anything.

Facing forward, however, is not how prisoners travel in a police van.  Rather, they face sideways, towards the centerline of the van.  If the van were to experience an abrupt deceleration, their heads would move not in the direction of their knees, as is the case with a person in a passenger car, but sideways, towards the front of the van.  To illustrate, below is a schematic prepared by the New York Times of the prisoner van in which Gray was riding (Gray was in the rear, passenger-side compartment):


Even when police vans are equipped with seat belts there are generally only waist belts. (A shoulder belt would be useless, in any case, as it would only restrain movement towards the centerline of the van, unlikely in an accident scenario.) A waist belt placed on a prisoner would pin the prisoner’s buttocks in place on the bench, but leaves the prisoner’s entire upper body free to swing violently “sideways” (towards the front of the van) in the event of an abrupt deceleration.

In the narrow confines of a prison van the result of such a physiological motion is to swing the prisoner’s head violently sideways and into the internal aluminum bulkheads within the van.  The result is that the entire force of the impact is focused on a single point of the prisoner’s skull, with often catastrophic consequences.

In contrast, imagine the same scenario but with the victim unbelted.  This time when the van violently decelerates the prisoner’s entire body slides across the bench and impacts the internal aluminum wall simultaneously.  Thus the force is spread over the entirety of the prisoner’s body rather than just a single point of his skull, and the impact is far less likely to cause a traumatic injury to the skull at any given speed.

The bottom line? It is safer for the prisoners themselves to be unbelted while traveling in a police van, especially at the speeds of inner city traffic, and more dangerous for them to be seat belted.  Indeed, this is precisely why so many departments still do not seat belt prisoners in police vans.

So were the six officers charged with Gray’s death truly creating a more dangerous circumstance for Gray when they declined to buckle him him, as the prosecution claims?  Or were they in fact creating a safer circumstance for Gray in doing so?

Remember, the prosecution has to convince a jury unanimously of its side of the argument beyond a reasonable doubt.   The defense, in contrast, need merely sustain a reasonable doubt in one juror’s mind.

To my eyes, I see a great deal of reasonable doubt here.

Whether the nominal legal duty to seat belt Gray into the van is waived on the basis of officer safety or on the basis of Gray’s own safety, to the question of “did the officers violate a legal duty to belt Freddie Gray in?” I answer in the negative.

Was the failure to seat belt Gray the proximate cause of his injuries?

Let us assume, however, that not only did the police have a legal duty to seat belt Gray into the van, but also that their failure to do so was a violation of that duty.

We remain left to answer the question of whether that assumed failure was the proximate cause of Gray’s injuries.  And again, this is an argument of which the prosecutor must convince each and every member of the jury beyond a reasonable doubt.

And here the very terminology of the autopsy report dooms Prosecutor Mosby’s theory of the case, specifically when the medical examiner compared Gray’s injuries to those typically suffered in a shallow-water diving incident.

We can all easily envision a shallow-water diving incident.  A person is on the edge of a body of water which they believe deep enough to allow safe diving.  They lean forward, allow gravity to pull them into a diving fall, enter the water, only to encounter a shallow obstruction.  With the entire momentum of the body falling forward and down, they strike their head forcefully on the obstruction, and suffer traumatic head and neck injury.

We know from the video of Gray’s arrest exactly how the police placed Gray into the van:  they laid him on the floor of the vehicle.  It is conceivable that a prison van might have so severe a head-on collision that a prisoner in this position could be hurled forward against the interior of the van and suffer a traumatic head injury.  It is not conceivable that a prison van could achieve such an dramatic rate of deceleration, however, without striking another object with such force as to cause major damage to the vehicle.

No such damage is reported to have occurred to the van in which Gray was transported.

Indeed, even the autopsy report discounts this possibility:

While it cannot be excluded that this[neck]  injury could occur while lying on the floor and sliding back and forth with the movement of the van, the likelihood of sufficient acceleration/deceleration to generate the energy needed is less likely in this position.

Thus the manner in which the police placed Gray in the van, on the floor of the vehicle, could not have been the proximate cause of his injuries.

A far more likely scenario of how Gray could have suffered a shallow-water diving type injury is apparent, however, to anyone who has stood in a moving city bus, trolley, or subway, and experienced the need to grab onto a pole or overhead strap to keep from falling due to the motion of the vehicle. Indeed, that is why those poles and straps are positioned throughout such vehicles, although none of these vehicles can be said to be undergoing dramatic changes in speed or direction.

Further, those stabilizing devices are required even by people who do not have their ankles shackled.  Imagine, for a moment, trying to maintain your balance on a bus, trolley or subway car with your hands cuffed and your feet shackled, while standing upright?  Simply impossible, and a hard fall inevitable.

Let’s recall again the testimony of the other prisoner in the van that day with Freddie Gray, who reported that Gray was throwing himself around the interior of the van with such force as to rock the vehicle back and forth.  Indeed, the autopsy report itself documents this to be the case:

After the inner and outer doors were closed, it is reported that Mr. Gray could be heard yelling and banging, causing the van to rock.

(emphasis added)

This is simply not achievable if Gray had remained on the floor of the van, shackled hand and foot.  (If you don’t believe me, try it.)

One can only reasonably infer that Gray managed to get to his knees, at least, and perhaps to his feet. Shackled hands and feet, in a moving vehicle, it was only a matter of time before even the normal motion of the van (even breaking normally for a traffic light or to accommodate other traffic) would cause Gray to lose his balance, resulting in a hard fall.  With his hands cuffed,he would have no way to break his fall, with the result that he would fall forward with his head striking either the floor or forward bulkhead of the van.

Exactly the same motion and the same impact as suffered in a shallow-water diving incident.

And who positioned Freddie Gray so as to make him vulnerable to a shallow-water diving injury even under conditions where the van was being driven in an entirely normal manner?

Only one person did that: Freddie Gray.

Thus Freddie Gray becomes the proximate cause of the injuries to Freddie Gray. Not the police.

This is by far the most likely scenario of how Gray suffered his injuries, as I am confident innumerable expert witnesses will testify on behalf of the police defendants.

The prospect that Mosby will be able to convince a jury to the contrary position, unanimously and beyond a reasonable doubt, simply cannot be given any credence whatever.

To the question of “was the failure to seat belt Gray the proximate cause of his injuries?” I answer resoundingly in the negative.

Failure to Provide Gray With Timely Medical Care

Having disposed of the nonsensical prosecution arguments dependent on the nominal failure of a legal duty to belt Gray into the van, the only remaining means of claiming criminal misconduct by the police officers centers on their alleged failure to provide Gray with medical care in a timely manner.

But that’s a post for another day.

–-Andrew, @LawSelfDefense

Attorney Andrew Branca and his firm Law of Self Defense have been providing internationally-recognized expertise in American self-defense law for almost 20 years in the form of blogging, books, live seminars & online training (both accredited for CLE), public speaking engagements, and individualized legal consultation.
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MouseTheLuckyDog | June 24, 2015 at 9:55 pm

Oh God!

By charging six police officers in the arrest and death of Freddie Gray, State’s Attorney Marilyn J. Mosby restored order to Baltimore “before the entire city became an armed camp or was burned to the ground,” her office argues in a new court filing.

She actually says it in a court document. How stupid can you be.

At least we will now find out whether the judfge really is a no nonsense judge.

    Yes. She’s stupid, in so many ways.

    But there is, IMO, a better term to describe her conduct: BOLD.

    She is crossing the line both ethically and legally, and she knows it. But she “don’t” care because she knows she’ll get away with it.
    This is the Obama-Holder-Lynch Department of Social Justice. There’s no rules, only “the cause”.

    She’s trying to prevent her removal from the case and she admits she brought the indictments to placate a mob.


    Char Char Binks in reply to MouseTheLuckyDog. | June 25, 2015 at 12:57 pm

    Haven’t you heard? Black lives matter, and it’s our responsibility, and the the responsibility of every police officer, to see that none of them ever die.

Great info here. The only question I have is this… didn’t the female Officer at one point place Gray in the bench in the van in a seated position on one of the stops along the way?

    Gray was placed back on the bench at the 4th stop. The co-passenger who would report Gray banging around the vehicle, was picked up at the 5th stop, so Gray was clearly up and moving around at that point–injury likely happened then.

    I neglected to touch on the tox screen results, but of course Gray tested positive. We all know how much better people are at both judgment and keeping their balance when they are drunk/stoned/high on narcotics.

    This prosecution is even more of a joke than was the Zimmerman trial. At least in Zimmerman it was possible the defense case would fall apart and become vulnerable to what little the prosecution had (a dead Trayvon and Zimmerman’s concession that he’d shot hikm).

    Here the prosecution has–quite literally–NOTHING to differentiate this so-called depraved-heart second-degree murder from a simple case of a doped up clumsy junkie falling on his own head.

    –Andrew, @LawSelfDefense

      I wonder if Mosby really wants the case removed to the suburbs so she can blame the loss on that and not her own incompetence.

      Of course, with things inflamed in Baltimore, it is possible that a jury could be out to find these cops guilty regardless. But juries are generally more sensible and reasonable than not (thank the founding fathers for preserving that right for us) and I suspect Mosby will lose big even if the case stays in Baltimore.

      stevewhitemd in reply to Andrew Branca. | June 24, 2015 at 11:04 pm

      Once he’s placed properly on the bench, is there a means to keep him there? I don’t know anything about how these vans are equipped; that’s why I’m asking. Seems to be that you’d want an arrested person to be put in one place and stay in one place in the compartment, both for that person’s safety and for the safety of the officers.

      So I’m curious — what sorts of restraints do these vans have? I’d appreciate the enlightenment, I have a feeling I’m going to need to be able to talk intelligently about this in the faculty lounge…

        Gremlin1974 in reply to stevewhitemd. | June 25, 2015 at 12:53 am

        What I presume you are talking about are things like the “prison bus” D-rings in the floors to attach the prisoners shackles and keep them in their seats. This type of van probably wouldn’t have anything like that, generally if such a system is even still in use, those were used for prison transfers of convicted prisoners not just for arrested suspects. Also, those would absolutely make it more dangerous since if their ever was an accident with the prisoner secured to that one pivot point they would basically become a human paddle ball.

        From what I have read about the van, the benches have standard lap style seatbelts

      The truth doesn’t matter to these malignant clowns: their agenda is fascism and they will lie, cheat, steal – and, considering Obama and Eric Holder’s running guns ( – kill to achieve their ends.

      Arguing with them is like the old adage that when you argue with an idiot, now there are two idiots arguing. The discussion needs to be moved to the truth of their motives, not their lies.

    Not A Member of Any Organized Political in reply to Yippy. | June 24, 2015 at 10:15 pm

    …and the mane-streamed meat…media…is insistent on giving us “50 Shades of Gray.” But not the true shade of Gray I suspect.

At best she might (that that is a remote might) prove is negligent homicide for the officers involved in transporting Gray (on the theory they should have called for medical treatment sooner). To suggest it’s criminal (2nd degree murder criminal) not to buckle him in when it appears he was injured from standing up seems a bit of a stretch (actually it seems bat shit crazy on the prosecutor’s part).

If this is a wrongful death civil case, then you can see a sizable payout to Gray’s estate Iand due to the notoriety of this case and the fact the City of Baltimore has deep pockets, that payout will be very sizable). But these criminal charges? Unless it is some kangaroo court, Mosby is mostly going to be disappointed.

You keep mentioning the 12 person jury of his peers… as politically charged as the public is in this venue, wouldn’t the defendants be better off, strategy wise, to waive the jury trial and just have the Judge rule? Or is that not an option in this case?

Certainly if *I* were one of the defendants, I would trust the judgement of the Judge over a pool of locals who have to answer for their decisions on the street.

    The trouble with waiving a jury trial is that sometimes you get lucky and end up with a Judge John O’Donnell.

    And sometimes you do NOT get lucky, and end up with a Judge Debra Nelson.

    Even if it were random it’s iffy, and if you’re making decisions based on the presumption of political influence meddling with due process, why would you believe the selection of judge is random?

    At least with a jury you get to voire dire them first, and you only have to convince ONE of the DOZEN (I think it’s a dozen in MD) that there exists a reasonable doubt, in order for you to foil a conviction.

    –Andrew, @LawSElfDefense

I wonder if this mess survives to trial in the face of some good motion-practice by the attorneys for the defendants.

    The difficulty is the perception, likely accurate, that any adjudication in favor of the police defendants will result in Baltimore burning again.

    And this time in, what, July? August?

    Woo-hoo! Hot time in the city tonight!

    –Andrew, @LawSelfDefense

      Ragspierre in reply to Andrew Branca. | June 24, 2015 at 10:51 pm

      Well, not with Judge Ragspierre on the bench. To me, the law occupies its own pedestal, and I would not allow other considerations to intrude too much on my application of the law.

      What other authorities do with what I have to hand them would be on them. My duty would be to the law, and it sure doesn’t appear that I’d be justified in keeping these accused under the gun when it’s apparent there isn’t a chance in hell the state could meet its burdens.

        Estragon in reply to Ragspierre. | June 25, 2015 at 1:00 am

        Unfortunately, it is unlikely they will draw you for this case. It’s the whole Texas thing, they are terribly biased in Baltimore, you may have heard.

        So they will get a Baltimore judge appointed or elected by Democrats, meaning they are almost certainly corrupt and incompetent.

        Ragspierre in reply to Ragspierre. | June 25, 2015 at 4:05 am

        Oh, I assure you there will never be such a strange critter as “Judge Ragspierre”. Not a chance of that happening. Nooooooopa.

        But there are good judges, like there are good lawyers, and I’ve had the pleasure of knowing both.

      MouseTheLuckyDog in reply to Andrew Branca. | June 24, 2015 at 11:52 pm

      Reminds me of an old LALaw where a black judge reads a verdict in a court room and starts a riot in the court room. Will the judge have balls in this case?

      That is also why I ask about interlocutory appeals in Maryland. Knowing that the defense can over over to the Appeals court and get the judge spanked would help keep him a little honest.

      MouseTheLuckyDog in reply to Andrew Branca. | June 25, 2015 at 12:02 am

      IIRC correctly the trial is st for Oct 31.

      What about the possibility that the judge may pull individual officers out of the charged pool and toss them back into the police department, one at a time, as the various charges evaporate under the light of day?

      Do you think that would wind up the Legions of Perpetual Outrage, or deflate the bubble? (Yeah, yeah. I know. If they were rational, they wouldn’t be in the LPO.)

    mariner in reply to Ragspierre. | June 24, 2015 at 10:58 pm

    In a rational world it would not—but in a rational world these charges would never have been brought.

    I think there’s roughly zero chance that a judge in Baltimore will dismiss these charges, regardless of skillful defense motion-practice. He will be too afraid of more riots.

    Further, I don’t hold out any hope for a fair trial in Baltimore.

    Remember, the real purpose of the justice system today is to placate black people, not bring actual wrongdoers to account. (I wish that were hyperbolic exaggeration…)

Professor Branca, I am having difficulty with your analysis of this case. Don’t get me wrong; it’s extremely well-reasoned but it sounds like a tort case analysis.

Part (an element) of every crime is criminal intent (mens rea). I understand that you know all this but please point out to me where the mens rea is in your analysis because I sure don’t see it. Of course negligent homicide doesn’t require a specific intent to take a life but it does require an intent to take actions having a substantial risk.

But I’m not seeing ANY ACTION done by any cop that even implies mens rea. Lots of speculation and hypothetical spitballing but little else. And how can they prove that medical treatment didn’t cause FG to die?

Thanks in advance for your time and attention.

    I’m not in the legal profession, but as a casual observer over the last decade and a half to two decades, I’ve seen an avalanche of cases that never involve criminal intent where that is utterly irrelevant to the verdict. I’m used to it now.

    It’s common for people to misunderstand how mens rea apples in practice.

    Some criminal statutes require a very specific mens rea–many capital murder statutes and pretty much all hate crime statutes come to mind. In those cases, failure of the state to prove that specific mens rea beyond a reasonable doubt requires an acquittal.

    Indeed, in most states even voluntary intoxication can be a defense to those particular crimes that require such a specific mens rea, if the defense can convince the jury that the intoxication was so severe that it prevented the defendant from forming the necessary specific intent.

    But those statutes are the rarity.

    Most criminal statutes merely require that you intended to do the particular action that then turned out to be criminal. You don’t even need to know that the action was illegal, much less have the specific intent to be committing an illegal act, in order to be convicted.

    Contraband cases are a good example. Here in MA, for example, it’s unlawful to carry a gun on school grounds (absent very limited exceptions). A person knowingly in possession of a gun on school grounds who is found to be in such possession is guilty of that offense .

    It does not matter if he genuinely was unaware of the prohibition (ignorance of the law is no excuse). It does not matter that he does not intend to commit a crime, does not have the specific mens rea to commit a crime. All that matters is he had the specific intent to be in possession of a gun, and he was found to be in such possession on school grounds.

    He COULD potentially escape liability if he could convince the jury that he was NOT AWARE he was in possession of a gun. THAT lack of knowledge, the lack of intent to be in possession of a gun would be a defense.

    Say, for example, he’d just come from a coffee shop and picked up someone else’s laptop bag that appeared identical to his own–except the other person’s bag had a pistol in it, a fact of which he was unaware. In that case he lacked the specific intent to be in possession of a gun, period, much less on school grounds.

    All that said, the gaping hole in Mosby’s “theory of the case” is that she HAS NO THEORY of the case.

    She has yet to specify any specific action on the part of the officers that actually was the proximate cause of Gray’s injuries. The closest she’s come is acts of omission–already discussed in the post above, and readily addressed by the defense.

    She has been utterly unable, apparently, to point to a single unlawful act of commission. Game changers in that respect would be (apparently non-existent) evidence of the arresting officers hurling Gray into the van, of the van driver careening around the city streets with the purpose of giving Gray a “rough ride,” of the officers not incidentally but deliberately and intentionally denying Gray medical care.

    If Mosby’s got evidence like that she’s holding it close. And she doesn’t strike me as the person inclined to do so.

    –Andrew, @LawSelfDefense

      sequester in reply to Andrew Branca. | June 25, 2015 at 8:47 am

      Interestingly, in attempting to dodge First Amendment issues in Elonis vs United States the Supreme Court may have unwittingly altered mens rea doctrine:

      Court does not regard “mere omission from a criminal enactment of any mention of criminal intent” as dispensing with such arequirement. Morissette v. United States, 342 U. S. 246, 250. This rule of construction reflects the basic principle that “wrongdoing must be conscious to be criminal,” and that a defendant must be “blameworthy in mind” before he can be found guilty. Id., at 252. The “general rule” is that a guilty mind is “a necessary element in theindictment and proof of every crime.” United States v. Balint, 258 U.S. 250, 251. Thus, criminal statutes are generally interpreted “toinclude broadly applicable scienter requirements, even where the statute . . . does not contain them.” United States v. X-Citement Video, Inc., 513 U. S. 64, 70. This does not mean that a defendant must know that his conduct is illegal, but a defendant must have knowledge of “the facts that make his conduct fit the definition of the offense.” Staples v. United States, 511 U. S. 600, 608, n. 3. Federal criminal statutes that are silent on the required mental state shouldbe read to include “only that mens rea which is necessary to separate” wrongful from innocent conduct. Carter v. United States, 530 U. S. 255, 269. In some cases, a general requirement that a defendant actknowingly is sufficient, but where such a requirement “would fail to protect the innocent actor,” the statute “would need to be read to require . . . specific intent.”

      Only time will tell if lower courts follow this dicta. Ms. Mosby may have given us the first test case here.

      tkc882 in reply to Andrew Branca. | June 25, 2015 at 5:50 pm

      This is what I was about to ask. Even if they were required to seatbelt the prisoner don’t they have to prove that the officers intentionally didn’t do so for the purpose of doing him harm? It looks like the answer is yes.

      How hard is that to prove? I’m guessing it is not easy.

        Gremlin1974 in reply to tkc882. | June 25, 2015 at 7:02 pm

        The seat belt argument, unless the real lawyers want to correct me is, more a question of negligence than intent.

        If they can prove that it was a well established policy that was routinely carried out and wasn’t done in this instance that could be considered negligence.

        However, as Andrew pointed out that can be countered by officer safety and the fact that it was a brand new regulation.

Maybe Mosby’s actions are all about money. The large number of charges coupled with keeping pertinent facts before the media could well mean a civil jury might be swayed by her friend the Gray family regardless of whether the officers are convicted in the criminal trial.

As the Andrew points out, many departments around Baltimore do not belt their prisoners in their transport vans (I understand many are not even equipped with belts).

I think the prosecution may have trouble convincing a jury that what is standard operating procedure for many departments around Baltimore is depraved heart murder in Baltimore

    MouseTheLuckyDog in reply to CalFed. | June 25, 2015 at 12:05 am

    I can imagine an interesting question to one of the cops on the stand.
    “Why didn’t you belt him in?”
    “Uhhm. The van didn’t have belts.”
    Yes this prosecution is that incompetent.

Sammy Finkelman | June 25, 2015 at 12:14 am

It could be argued that keeping him handcuffed, given his belligerence, created an unsafe situation for Freddie Grey.

There was quite possibly no safe way to transport him in that van, except by taking off the handcuffs

The fact that they kept on switching positions indicates there was a problem.

The answer is maybe somewhat simple. There was no need to keep the handcuffs on, since he was locked up, and with his hands free, he could keep himself balanced.

And it is no argument that he had to be kept handcuffed for the safety of the officers, because that question of how he will react when they are taken off arises anyway at some point. Would he less belligerent inside a building?

And they could have kept the ankle braces on while taking off the handcuffs.

    But another detainee was placed in the van at some point. If Gray was that out of control, wouldn’t he have been a threat to the other detainee at that point?

      mariner in reply to JBourque. | June 25, 2015 at 12:39 am

      No; they were placed in different compartments.

        Ah. So that’s what was meant by kicking ‘through’ the divider. Ok.

        Had Gray not suffered a head injury, he might have been far more combative and dangerous to the officers when it was time for his last stop (at the station), so I can see that perspective.

      David Jay in reply to JBourque. | June 25, 2015 at 12:53 am

      There is a divider between the 2 prisoners.

    And when it’s time to get Gray out of the van at the final destination, what then?

    Now you have a non-compliant, combative, unrestrained criminal suspect ready to lunge at officers the moment the door is opened.

    There’s a reason why when a prison inmate in an open-bar cell is to be cuffed, they cuff him BEFORE the cell door is opened, not AFTER the cell door is opened. It’s simply safer for everyone involved.

    Incidentally, all the evidence released to date would suggest that it would have been perfectly safe for Gray to travel in the van cuffed hands and feet IF he’d only stayed where they put him.

    Changing positions and hurling himself around the van hard enough to rock the vehicle is on nobody but Gray.

    –Andrew, @LawSelfDefense

      nivico in reply to Andrew Branca. | June 25, 2015 at 1:22 pm

      1.5.7. The seat belt or restraining device is secured around the waist or upper body of the detainee. This will prevent the detainee from maneuvering out of the restraint and possibly causing injury to himself/herself or others.

      The seat belt policy apparently puts the onus on the officers to prevent the transportee from being able to harm himself.

      That’s not to say that I agree with the principle or the ME’s “medico-legal” conclusion that failure to prevent Gray from injuring himself = homicide…

      And it’s interesting to consider, then, what the ME’s determination on the manner of death would have been in the following scenario:

      Suppose an officer forgets to confiscate a prisoner’s belt before putting him in his cell. The prisoner subsequently hangs himself with that belt. Would the ME change the manner of death from suicide to homicide…???

    healthguyfsu in reply to Sammy Finkelman. | June 25, 2015 at 5:00 pm

    I’m no LEO but it seems like common sense that the response to a combative arrestee is not to release them from some of their shackles for non-compliance and resistance…unless maybe we are filming Demolition Man II.

FYI – the quote portions blow the margin to the right. The text continues behind the side banners. Makes it hard to read. I’m on a Mac, BTW.

Where is the rebel flag in all this and was “Freddie” a homosexual or one of Obama’s sons?

I think this whole deal just begs for a technology up-date for prisoner transport.

I’m liking my Ragspierre Pine Box System. The arresting officers simply handcuff the arrestee, and lower him/her into the nice, padded (with non-absorbent material for easy cleaning) pine box and secure the lid.

This will have a certain sobering effect on many arrestees all by itself. Others will slip into a full-tilt freak-out. You can’t please everyone. The box is amply supplied with air holes to provide for the most high-volume hyperventilating, and can even accept an air-conditioning duct.

The pine box is then loaded on a waiting flatbed or into a van. The configuration allows stacking the arrested literally like cord wood, in complete safety and relative comfort. Except for the full-tilt freak-out thing.

An enhancement I thought of for the true obstreperous prisoner is the Ragspierre Remote Viper, which can be added to the contents of the pine box to help quiet the prisoner who is having “compliance issues”. It can be turned off or on, in response to the behavior of the arrestee. It is programmed to rest warmly over the heart of the individual and monitor his/her vital signs, it’s red LED “eyes” glowing reassuringly in the dark.

This is a truly humanitarian system that might have, had it only been in use in the Gray situation, saved a life.

You all should lobby your local governments to investigate the advantages of the Ragspierre Pine Box System, along with our easy payment plans.

All of the motions so far have been answered by Michael Schatzow( spelling ) He has been described by those on this comment board as being a good lawyer .Does anyone get the same feeling that either the boss is hanging over his shoulder and is subtly sabotaging her case and she’s too stupid or arrogant to get it , or maybe she really wants off the case.Now she is taking credit for stopping the RIOTS. I thought that was an ethics violation

    Ragspierre in reply to dmi60ex. | June 25, 2015 at 8:13 am

    “He has been described by those on this comment board as being a good lawyer.”

    Not by this lil’ gray duck. I consider his pleadings to be nasty to the point of an ethical violation. I’ve seen no sign of “good lawyering”. I have seen pleadings notable for their political content and for their dearth of anything like collegiality or respect for opposing counsel or their defendants.

    I concur with Rags. Frankly, the State’s motions have been outright unprofessional–histrionics and outrage.

    I have no personal experience with Counselor Schatzow, but Page Croyder claims to have, and she comments on her own blog here (read her background for context):

    –Andrew, @LawSelfDefense

The fate of the charges may well hinge on the alleged failure to provide timely medical care. The cops still have some ‘splainin to do. This will be one to watch, as there should be some interesting testimony.

I predict the cops will be convicted, at least on some sort of “Official Misconduct charge, if only for filing the 304 Form on top of the 408 Form instead of vice versa. It is an easy out for the jury who may want to be seen as doing something.

    “The fate of the charges may well hinge on the alleged failure to provide timely medical care.”

    I guess so–that’s all that Mosby has left.

    Of course, police officers are not ER doctors.

    Unless they knew, or should have known, that their modest delay in getting Gray medical care would have dire medical consequences for Gray, and all of this in the context of the officers being aware that Gray was a drug addict and (tox now confirms) on narcotics at the time of his arrest, and thus to be expected to be acting oddly, I simply see no way (absent a crazy jury) that one proves depraved-heart second-degree murder, involuntary manslaughter, or assault beyond a reasonable doubt.

    Assault via delay in providing medical care? I mean, really? 🙂

    –Andrew, @LawSelfDefense

      Ragspierre in reply to Andrew Branca. | June 25, 2015 at 9:30 am

      As I’ve said before, the PA has to PROVE that LEOs knew things that LEOs don’t know, and can’t know.

      They cannot evaluate a cervical spinal injury any more than I can. And they see people commonly who are simply Oscar-level actors faking any number of conditions. All that impacts what they CAN “know” in a given situation.

        Gremlin1974 in reply to Ragspierre. | June 25, 2015 at 4:58 pm

        I am not sure about the laws in MA, but in some cases intervening in ways that you aren’t trained to or to a level above what you are trained can get you in more trouble than just not doing anything and waiting on the Professionals. I know it sees counter intuitive but it is the truth.

      Jesi7145 in reply to Andrew Branca. | June 25, 2015 at 11:16 am

      Proving that the officers knew or should have known that Gray urgently needed medical care will be very difficult. However, I think the prosecutor has an even worse problem. She has to prove the injury occurred before the 4th stop, the last chance for the officers to observe it and obtain medical care more rapidly. This is where the timeline is crucial and her lack of medical knowledge kicks in. Gray was successfully resuscitated by CPR. That means he stopped breathing max no more than 6 or 7 minutes prior to the resuscitation attempt. Resuscitation wasn’t started until an ambulance had been called and arrived at the station. Back up 6 or 7 minutes before that and it is pretty clear Gray was in transit during that period after stop 4.

      Jesi7145 in reply to Andrew Branca. | June 25, 2015 at 12:15 pm Following up on my other comment, here are excerpts from the autopsy report that show the prosecutor’s theory on when the injury occurred. The problem here is that there is no way to prove whether the injury immediately transected his spinal cord, (resulting in immediately stopping breathing consistent with my first comment), or it was at first a partial transection that over time became worse. Medical proof would require serial MRI’s or CT’s to document an evolving injury. They are basing the theory that it was at first a partial transection solely on Freddie Gray’s complaints of breathing and movement difficulties. However, he had the same complaints of breathing problems and was at least sometimes not moving his legs during his initial arrest, when everyone agrees he did not have a spinal cord injury.

      The theory that it was a partial transection at first, not a full transection that immediately stopped his breathing, is very very weak from a medical proof perspective.

      dystopia in reply to Andrew Branca. | June 25, 2015 at 1:45 pm

      Timely medical care??? Mr. Gray died after a week in the hospital. A few minutes delay in getting him to the hospital only mattered if it can be shown beyond a reasonable doubt that earlier treatment after the injury would have made the difference between life and death.

      Lack of timely medical care will be a hard one to argue. Any testimony will be full of “could have, and might have”. Lack of timely medical care was not a proximate cause of death.

Prof. Barondes | June 25, 2015 at 8:31 am

“Only one person did that: Freddie Gray.

Thus Freddie Gray becomes the proximate cause of the injuries to Freddie Gray. Not the police.” (emphasis added)


The first appearance of the article “the” is of note. Compare:

“We recognize that, in similar factual situations, courts in other jurisdictions have held that the decedent participant’s own grossly negligent conduct breaches the line of causation necessary to hold the surviving participant criminally liable.

Applying the above principles to the facts in the case at hand, we hold that appellant’s conduct in competing in the drag race bore a sufficiently direct causal connection to Hall’s death to support appellant’s conviction for involuntary manslaughter under Art. 27, § 388. We are not willing to hold that appellant’s conduct was causally related to the deaths of the spectator victims but was not causally related to that of Hall.”

Goldring v. State, 654 A.2d 939, 942-44 (Md. Ct. Spec. App. 1995).

    Just a suggestion, but if you have a point to make, I suggest you make it explicitly rather than obscurely.

    Nobody here (I believe) is one of your students. We’re not going to WORK to try to understand what you’re trying to say. We stop by here for very limited periods of time at irregular intervals, then get back to our real jobs. Obscure comments are merely ignored.

    The Socratic method may work in a classroom, but it is poorly suited for a blog post comment section.

    But, as I said, that’s merely a suggestion. 🙂

    –Andrew, @LawSelfDefense

      Prof. Barondes in reply to Andrew Branca. | June 25, 2015 at 12:14 pm

      A question arises whether a decedent’s own grossly negligent conduct, participating in the chain of events resulting in death, prevents another’s acts from being a cause of death.

      Of course, states can vary as to this kind of matter.

      Not seeing any Maryland authority referenced in your discussion of causation, I’ve merely provided some authority from Maryland I located in very short order, albeit construing a different statutory provision subsequently revised, concerning involuntary manslaughter and vehicles.

      It may provide a leg-up to any reader interested in authority in Maryland relevant to your discussion, or perhaps not.

    Char Char Binks in reply to Prof. Barondes. | June 25, 2015 at 11:40 am

    Did spectators die in Freddie’s van ride? This is worse than I thought!

Henry Hawkins | June 25, 2015 at 8:45 am

Look for liability insurers of municipalities to demand that videocams be placed in all prisoner transport vehicles as a condition of the policy.

    Elliott in reply to Henry Hawkins. | June 25, 2015 at 3:24 pm

    Then the recording of said prisoners headbutting the camera can be documented as well for additional charges of destroying city property.

    According to the Baltimore Sun, there was a videocam in this transport vehicle. Unfortunately, it was mysteriously not working that day.

      Gremlin1974 in reply to Amy in FL. | June 25, 2015 at 5:05 pm

      Which actually brings up a question that would need to be answered before any weight could be given to the malfunction. Was the camera not operating just that day or had this been an previously reported problem with maintenance logs and repair requests?

      Even if the driver reported the camera malfunction even 30 minutes before Gary was picked up that takes the “mystery” out of it, as well as your implications that the police are trying to cover something up.

Can’t wait for the next chapter, Andrew!

(BTW, has it been verified the transporting van was equipped with seatbelts?

I have not seen proof of that.)

Have any of the police officers filed motions to sever their trials? It seems to me that the van driver may have the most to worry about and that the arresting officers left behind would be predudiced by association in front of a jury. Not to mention the additional opportunities for MM to demonstrate her lack of legal skills.

So … it all comes down to whether or not they can get an all-black jury.

bobinreverse | June 25, 2015 at 10:20 am

The contributors here are really smart and know all the possible legal stuff. Except non of the comments pertain to reality. The day after the verdict resolution Ms Mosby will have a rally coming out party in Oriole Park or Ravens Stadium with 50 / 100 k attendees and even more in parking lot. She also probably won’t have to worry about a permit.

And hillary should think about getting mummified because she’ ll need to wait another 8 yrs

All the people who write in here are way smarter than me but it’s also time to wake up and get real

Char Char Binks | June 25, 2015 at 11:20 am

I guess my dad must have committed attempted murder almost every time I rode in his car, because I was seldom buckled in. Sure, I put on my seatbelt if I thought I might get into an accident, but I usually felt pretty safe, so I generally didn’t.

On that note, somehow the Baltimore Police department had managed to function (in its own fashion) and drive prisoners around in vans for decades without seat belting them in.

And found themselves on the hook for tens of millions of dollars in damages.

Baltimore Sun: “Freddie Gray not the first to come out of Baltimore police van with serious injuries”

“Relatives of Dondi Johnson Sr., who was left a paraplegic after a 2005 police van ride, won a $7.4 million verdict against police officers. A year earlier, Jeffrey Alston was awarded $39 million by a jury after he became paralyzed from the neck down as the result of a van ride. Others have also received payouts after filing lawsuits.”

Which might be why they finally decided to bring in the seatbelt requirement?

    Ragspierre in reply to Amy in FL. | June 25, 2015 at 12:37 pm

    Amy, you should tell the truth, the WHOLE truth, and nothing BUT the truth…

    “Johnson, who suffered a fractured neck, died two weeks later of pneumonia caused by his paralysis. His family sued, and a jury agreed that three officers were negligent in the way they treated Johnson. The initial $7.4 million award, however, was eventually reduced to $219,000 by Maryland’s Court of Special Appeals because state law caps such payouts.

    In 1997, Alston became paralyzed from the neck down in a van after being arrested. Alston said he told the officers he couldn’t breathe, but they refused to give him an inhaler for asthma.

    Officers said the 32-year-old repeatedly rammed his head into the side of the van, freed himself from a seat belt and thrashed some more.

    Alston sued, and at the trial, Dr. Adrian Barbul, a Sinai Hospital trauma surgeon, testified that Alston had no external head injuries when he was taken to the emergency room.

    A jury awarded Alston $39 million, but he and the city settled for $6 million. In settlements, the city generally does not acknowledge liability; the officers involved in the case did not face disciplinary actions.”

    nivico in reply to Amy in FL. | June 25, 2015 at 3:26 pm


    Don’t confuse civil liability with criminal liability.

    Though there is some overlap, criminal law and civil litigation are two distinctly different bodies of law.

    Criminal law largely deals with proving intent, whereas civil litigation largely hinges on proving fault.

      I was addressing Mr Branca’s implication that Baltimore PD had been transporting prisoners unbelted for years with no problems. There obviously had been problems, with injured and paralysed citizens to show for it, and this was probably the reason they brought in the new seatbelt requirement.

        nivico in reply to Amy in FL. | June 25, 2015 at 4:55 pm

        You’re citing two (statistically insignificant) civil cases to refute Branca’s overall point that the officers are not criminally negligent.

          I was refuting his implication that Baltimore PD had been transporting prisoners unbelted for years with no problems.

          Ragspierre in reply to nivico. | June 25, 2015 at 8:46 pm

          That was never implied by Andrew, but it was inferred by you.

          Nobody EVER supposed that any big city PD had NEVER had people get hurt while in custody.

          We all know they have. Rarely. And prisoner transport is one modality that offers the potential for harm.

    None of which has ANYTHING to do with whether THESE police officers acted unlawfully with THIS prisoner on THIS day.

    Which is all the criminal trial is concerned about.

    And a handful of civil suit loses over perhaps MILLIONS of prisoners transported in police vans in the decades since they were first put in use by the City of Baltimore, does not tell us all that very much about patterns and practices in the use of City of Baltimore police vans.

    –Andrew, @LawSelfDefense

This former Baltimore cop exposes racism in Maryland LEOs. Now you see how this happened. It also explains how Detective Walker can be treated much harsher by Maryland Leos than the cops charged with Freddy Gray’s death.

I find it an interesting coincidence that the report was leaked the same day Mosby’s Vogue pictures and Cosmo interview were made public.

I find it even more interesting that the Gray family attorney also has a copy of the report (as per a story in the Baltimore Sun) while none of the defense lawyers do.

    Ragspierre in reply to annav. | June 25, 2015 at 1:47 pm

    Dude! TOTAL coincidence. TOTAL…

    Char Char Binks in reply to annav. | June 25, 2015 at 2:33 pm

    Cosmo AND Vogue!? The last woman-safe spaces she’ll find before the trial.

      Elliott in reply to Char Char Binks. | June 25, 2015 at 3:30 pm

      In Cosmo Mosby said she made a really, REALLY bad (maybe zero or something) score on the LSAT. She seems proud of it.

        JackRussellTerrierist in reply to Elliott. | June 26, 2015 at 2:22 am

        That was Marilyn in one of her obastard moments showing her contempt for institutional merit requirements.

        LOL, it could also be her warning that she’s going to lose the case because she’s not much of a lawyer in the first place. 🙂

The best way to avoid dying in police custody is to not attract the attention of the police by violating the law.

Sorry I did not make my earlier point well. Is Mosby arrogant or stupid enough to imply in latest motion that calming the city was part of making the charges so quickly or are her underlings(Schatzow) deliberately sabotaging or undermining her.I’m not a lawyer but I recognize office politics when there is an oppressive boss . Or is he just a puppet. All his motions seem to contain unveiled contempt and sarcasm .

Did I just read what I thought I read .Mosby’s office just filed another protective order wrong. Say it ain’t so Joe .Nifong combined with Marcia Clark competence,She’s spending more time playing Marilyn Mosby than in doing her work.


Can someone please cover how (if at all) Contributory Negligence might impact this case? Is it even possible to argue this in a criminal case, or is it typically only something seen in wrongful death suits?

If it is allowed, doesn’t Maryland pretty much have an “all or nothing” type of approach concerning it? Wouldn’t Mr. Gray standing after being told to stay in the prone position essentially destroy any kind of negligence arguments (outside of the timely medical assistance argument)?

Comments on why Prosecution wants to sever Rice and Porters case from the others .Doesn’t make much sense unless someone is possibly incriminating one of the others.Any thoughts,or would it be that taking out the middle links might help prevent a domino effect when the charges against Nero and Miller fall

I have spoken with some Maryland police officers about the seatbelt issue.

If they have a violent non-compliant perp (Freddy) they are not so inclined to lean-in near the perp to belt him in. Doing so exposes them to bite hazards around the face and neck area.

How many people want to risk being bitten by a violent 20-times arrested drug dealer / addict that might be carrying a communicable or untreatable disease? Show of hands? Anyone?