“the investigation into this incident has been closed without prosecution”
The Department of Justice has declined to prosecute any police officers in the death of Freddie Gray in Baltimore.
The decision comes after a complete failure of state prosecutions. Andrew Branca wrote dozens of posts analyzing the evidence, the law, and the trials.
This post by Andrew summarized the proceedings, Freddie Gray Trials: Prosecutors Drop Remaining Trials Against Officers:
This morning Maryland State’s Attorney Marilyn Mosby dropped all criminal charges against the remaining “Freddie Gray” defendants, reports the Baltimore Sun.
There were three trials remaining–de novo trials of Officer Garrett Miller (whose trial was scheduled to begin today) and Sergeant Alicia White, as well as a re-trial of Officer William Porter. Porter, the first officer to be tried in this series of prosecutions, had his trial end in a hung jury and was immediately scheduled for re-trial by prosecutors.
Four trials, including Porter’s initial mistrial, had been completed, including bench trials of Officer Edward Nero, Officer Caesar Goodson, and Lieutenant Brian Rice. None of the officers tried to date had been found guilty of so much as a single charge brought against them.
Miller’s trial was expected to be particularly difficult for the prosecution, because they had previously compelled Miller to testify under limited immunity in prior “Freddie Gray” trials. This precluded the prosecution from using anything he said in that testimony, or anything derived from that testimony, in Miller’s own trial, creating a huge administrative nightmare for the prosecution to prove it had met this obligation. There was also a distinct possibility that prosecutors, who it was revealed had themselves conducted their investigation of the officers, might have to take the stand and testify under oath as to their investigatory activities.
Many legal experts, including this humble correspondent, had believed from the start that there simply existed no factual basis on which any of the officers could be found guilty of any criminal misconduct, absent some surprise reveal of incriminating evidence by the prosecution.
Instead, the reverse happened–all evidentiary surprises ended up proving exculpatory to the officers. These evidentiary surprises include the unexpected testimony by a lead police investigator that the medical examiner had initially believed Gray’s death to have been an accident, and the surprise affidavit issued by the Baltimore Sheriff’s Office that contrary to prosecution claims they had never conducted an investigation of Gray’s death.
As the dust now settles it is appears clearer than ever that the prosecutions of these six officers was little more than a vicious act of legal malfeasance perpetrated solely for the political advancement and aggrandizement of Prosecutor Marilyn Mosby.
I was even less charitable, Hey Mosby, congratulations, you’re a laughingstock:
I have left the coverage of the prosecution of six police officers in the Freddie Gray case to Andrew Branca. He had almost 100 posts.
I don’t think I’ve said a lot about the prosecutions to date.
So let me give you my highly refined take, after careful consideration and with due respect to our adversarial system and the important role played by prosecutors:
Mosby, you have shamed your office in pursuing policitally-motivated prosecutions in order to appease a mob of rioters and hooligans who threatened to burn Baltimore down. You could have been honorable and brave and stood up to the mob, but instead you sought quiet instead of justice. Perhaps you had greater political ambitions, or just were a coward. Either way, you disgraced yourself. You are a joke, a laughingstock, to be remembered as we now remember Mike Nifong. Congratulations.
Today is all comes to an end with a very detailed DOJ Report, embedded at the end of this post, explaining why no federal charges would be brought. The Report goes through the evidence as to each potential charge (false arrest, excessive force, failure to provide medical care) and determined that there was insufficient evidence, or the evidence contradicted the potential charge.
Here are some excerpts:
The Justice Department announced today that the independent federal investigation into the death of Freddie Gray, Jr., on April 19, 2015, in Baltimore, Maryland, found insufficient evidence to support federal criminal civil rights charges against six Baltimore Police Department (BPD) officers….
The Department conducted a comprehensive independent investigation of the events surrounding Gray’s death and carefully reviewed the materials and evidence generated by BPD and the SAO. Career prosecutors examined evidence from numerous sources…. Additionally, the FBI and federal prosecutors conducted witness interviews of BPD personnel in order to clarify procedural questions with respect to police investigative practices….
On False Arrest:
With respect to a false arrest charge, the Department determined that it could not disprove the officers’ statements regarding the events leading to the arrest. According to the officers, Gray was detained after he made eye contact with Lieutenant Rice and then immediately ran from him. At the time, the bicycle officers were conducting proactive enforcement in an area known for drug sales. Once the officers stopped Gray, they admitted to securing him with handcuffs and then performing a cursory search for weapons, which yielded an illegal knife. A test of that knife later revealed that it opened with a spring-assist, which corroborates Officer Miller’s determination that it was a switchblade knife. In light of the Supreme Court’s decisions regarding the thresholds for reasonable suspicion and probable cause, prosecutors concluded that a false arrest under the Fourth Amendment was not supported by the facts. Gray’s unprovoked flight from Lieutenant Rice, which occurred in an area known for drug sales, gave the officers reasonable suspicion to briefly detain him. Miller’s discovery of a knife that appeared to be an illegal switchblade supplied probable cause to arrest Gray….
On Use of Unreasonable Force:
In order to fully assess whether the officers used unreasonable force when arresting Gray, the Department closely examined medical evidence, video recordings, and witness accounts. The legal standard for such a prosecution would require the government to prove beyond a reasonable doubt that an officer’s use of force during Gray’s arrest was objectively unreasonable based on all of the surrounding circumstances, and thereby violated the Fourth Amendment. The law requires that the reasonableness of an officer’s use of force on an arrestee be judged from the perspective of a reasonable officer on the scene, rather than with the added perspective of hindsight.
The evidence in this matter overwhelmingly contradicted reports from some civilian witnesses that Gray was either tased or beaten by the officers…. To be sure, Officer Miller admitted to using a leg lace on Gray in order to temporarily immobilize Gray’s legs, but Miller’s assertion that he did so in response to Gray’s flailing is unrebutted by the evidence. Based on this assertion, his use of a leg lace cannot be proven unreasonable, and the medical evidence does not establish that the leg lace resulted in injury to Gray.
On the so-called Rough Ride:
The Justice Department also considered whether the evidence established that Officer Goodson intentionally gave Freddie Gray a “rough ride” in the back of the wagon, thereby using excessive force in violation of the Due Process Clause. Pursuing this charge would require the government to prove that Officer Goodson gave Gray a ride that objectively harmed him, and that Goodson did so “maliciously and sadistically” in order to cause Gray harm. The evidence could not bear this burden. In spite of the fact that video evidence shows Goodson making a wide right turn and briefly crossing the double yellow line prior to arriving at Stop 3, neither that video, nor the other evidence, conclusively established that Goodson drove recklessly. An expert on retaliatory prisoner transport practices who testified at trial for the state acknowledged that he had seen no evidence that Goodson made abrupt starts, stops, or turns, and that he was not sure whether Goodson had given Gray a “rough ride.” Goodson provided no statement to investigators that would illuminate how he operated the wagon, and an arrestee who was placed in the wagon at Stop 5 described the drive to Stop 6 as a “smooth ride.” In addition, the medical evidence does not conclusively establish that Gray’s injuries were caused by reckless driving, or even by poor driving. There is no evidence that Officer Goodson harbored any animus toward Gray or desired to harm him. Goodson’s failure to seatbelt Gray, without more, does not prove intent to harm. The evidence cannot disprove exculpatory explanations for failing to seatbelt Gray, explanations having nothing to do with intent to harm.
On Deliberate Indifference:
The Justice Department also considered whether the officers were deliberately indifferent to Gray’s serious need for medical care. The relevant medical evidence does not conclusively establish that Gray had already sustained his fatal neck injury by the time Officers Porter, Goodson, and White observed him at Stops 4 and 5. Medical experts who examined Gray’s death were sharply split during the state trials as to whether Gray suffered this injury sometime between Stops 2 and 4, or sometime between Stops 5 and 6. Experts who testified for the officers maintained that the neck injury Gray suffered would have caused near instantaneous (rather than progressive) paralysis, loss of breathing, and loss of speech. Given that testimony, and Porter’s unrebutted statement that Gray was speaking at Stops 4 and 5, the Department cannot prove beyond a reasonable doubt that Gray had already suffered his neck injury by the time officers saw him at those stops.
Even if Gray had already been injured, the evidence does not prove that the officers were aware of the serious nature of that injury. At Stop 4, Gray was talking, able to maintain a seated position, and supported his own neck. At Stops 4 and 5, he was breathing and conscious. There is no evidence that he was bleeding or had any other visible injury. He was not drooling, had no liquid discharge around his mouth, and was not incontinent at that point. At Stop 6, Gray exhibited symptoms of medical distress that he did not exhibit earlier. There appears to have been a consensus among the medical experts who testified at the state trials that Gray’s injuries manifested themselves internally and would not have necessarily had visible signs. The Department is mindful of the fact that Gray asked for medical assistance and appeared lethargic at Stops 4 and 5, however, the evidence does not disprove Porter’s statement that he delayed Gray’s requests for a medic because he believed Gray was fatigued after banging himself against the wagon and might have been feigning injury. Regardless of whether Sergeant White or Officer Porter acted negligently by not calling a medic prior to Stop 6, it would be impossible to prove that either deliberately ignored Gray’s needs.
After an extensive review of this tragic event, conducted by career prosecutors and investigators, the Justice Department concluded that the evidence is insufficient to prove beyond a reasonable doubt that Officer Caesar Goodson, Officer William Porter, Officer Garrett Miller, Officer Edward Nero, Lieutenant Brian Rice, or Sergeant Alicia White willfully violated Gray’s civil rights. Accordingly, the investigation into this incident has been closed without prosecution.
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