On May 1st 2015, Baltimore’s newly-elected State’s Attorney Marilyn J. Mosby announced that she was filing criminal charges against six Baltimore officers for causing and contributing to the death of Freddie Gray from injuries he sustained after a brief foot chase in West Baltimore nineteen days earlier. Mosby’s rapid response, just one day after receiving the report from the police investigation into Gray’s death, was roundly celebrated by rioters, protestors and their supporters in high office and news media. The fact that the State’s Attorney was pursuing serious charges, including intentional murder, was widely taken as verification of the presumption that police misconduct was the cause of Gray’s fatal injury.
Officer Caesar Goodson drove the van that transported Gray. He is charged with second-degree depraved heart murder (30 years), involuntary manslaughter (10 years), second-degree assault (10 years), gross negligent manslaughter by vehicle (10 years), criminal negligent manslaughter (3 years) and misconduct in office.
Officer William G. Porter is charged with involuntary manslaughter, (10 years), second-degree assault (10 years), and misconduct in office.
Lt. Brian W. Rice was on bike patrol when he made eye contact with Gray, which initiated the foot-pursuit that ended with Gray’s arrest. Rice is charged with involuntary manslaughter (10 years), 2 counts of second-degree assault (10 years each), 2 counts of misconduct in office, and false imprisonment.
Officers Edward Nero and Garrett Miller were also on the bike patrol and are each charged with 2 counts of second-degree assault (10 years), 2 counts of misconduct in office, and false imprisonment.
Sgt. Alicia White met the van after Gray’s arrest to pick up another arrestee. She is charged with involuntary manslaughter (10 years), second-degree assault (10 years) and misconduct in office.
Mosby’s grandiloquent speech conveyed her personal gratitude to the protestors and rioters who were given space to demonstrate and destroy. She acknowledged that public unrest had brought about swift charges and assured the public that their cries of “no justice, no peace” had been heard before pledging to deliver justice for Freddie Gray. The chief prosecutor issued a special message of praise to the city’s juveniles (“This is your moment!”) and urged them to “ensure that we have peaceful and productive rallies that will develop structural and systemic changes for generations to come. You’re at the forefront of this cause and, as young people, our time is now.”
The activist speech invoked celebration among those who presumed that police killed Gray, but there was much wrong with the picture. Instead of filing criminal charges against the officers after presenting cases to a grand jury and obtaining indictments, Mosby had filed a Probable Cause Application (PCA). This expedited the process, but disadvantaged the prosecutor because it required her to convene a grand jury and issue indictments within 30 days.
More important than the disadvantage, however, the PCA allowed Mosby to hold a press conference where she could grandly announce the 26 charges and present a version of events and legal conclusions untainted by opposing argument or judicial review. Why was that important? Because the Statement of Probable Cause she recited was rife with glaring mis-statements of law and provided no grounds for the serious charges filed against the officers.
1. Freddie Gray’s Knife Was Illegal
When Gray was arrested, he was charged with unlawfully possessing “a spring assisted, one hand operated knife” that was clipped to the inside of his pants pocket. Mosby stated that the officers had no probable cause to arrest Gray because the knife “was not a switchblade and is lawful under Maryland law.” She’s wrong.
§4-105 of the Maryland Criminal Code, defines a switchblade knife as “a knife or penknife having a blade that opens automatically by hand pressure applied to a button, spring, or other device in the handle of the knife.” Mosby’s statement didn’t counter the police report’s depiction of Gray’s knife. If the report is accurate, then Gray’s knife was illegal under Maryland law, although Mosby’s reference to Maryland law revealed jurisdictional sloppiness.
Gray was charged for violating Baltimore City Code §59-22, which provides a wider definition than Maryland law as to what constitutes a prohibited switchblade: “It shall be unlawful for any person to sell, carry, or possess any knife with an automatic spring.”
There’s also the likelihood that Gray was on probation. At 25 years old, he was a convicted felon with a lengthy rap sheet. When he was arrested on April 12, Gray had already picked up fresh charges in 2015: Possession of a controlled dangerous substance with intent to distribute (1/14/15); Fourth-degree Burglary & Trespassing (1/20/15); Malicious Destruction of Property (3/13/15); and Possession of a Controlled Dangerous Substance (3/20/15).
Typically, a convicted felon in these circumstances would be on probation and subject to court orders prohibiting him from carrying any type of concealed weapon.
2. Freddie Gray’s Arrest Was Legal
Based on her flawed assertion that the knife was legal, Mosby deemed Gray’s arrest illegal because the arresting officers “failed to establish probable cause for Mr. Gray’s arrest, as no crime had been committed.” The statement betrayed a fundamental misunderstanding of the role of probable cause in the context of an arrest, remarkable for any prosecutor.
Charges may be dismissed due to a lack of probable cause, but that doesn’t make the precipitating arrests unlawful. For that to be the case, the officer would have to know or have good reason to know that the arrest was unlawful. Gray’s spring-assisted knife appears to fit the definition of a prohibited concealed weapon. In fact, Maryland police officers are actually trained that the knife described in the report should be charged as a deadly weapon equivalent to a switchblade, per the October 2014 Digest of Criminal Laws from the Maryland Police and Correctional Training Commissions.
Contrary to Mosby’s pronouncement, police officers do not need to “establish probable cause” in order to commit lawful arrest. They only need to reasonably believe that there is probable cause to arrest and have no good reason to think otherwise. In such instance, even if the knife were legal and Gray were allowed to possess it, his arrest for possessing the knife would not be illegal. The charges would be dismissed and the arrest would still be lawful.
3. There’s Nothing to Support Murder and Manslaughter Charges
Gray sustained the fatal injury at some point during the thirty minute van ride from his point of arrest to the station. The widely publicized theory is that the police subjected Gray to a “rough ride” by driving fast and stopping and turning sharply, which battered Gray against the walls and caused the injury. Goodson, the driver of the van, is charged with gross negligent manslaughter by vehicle and second-degree depraved heart murder. The latter charge requires that he knew (or should have known) that his actions created a very high risk to the life of another and acted with extreme disregard of the likely consequences. Killing someone by firing a gun into a crowd or driving drunk at a high rate of speed in a rainstorm are examples of depraved heart murder.
Mosby’s Statement of Probable Cause contained no allegation that Goodson drove the van in a reckless “rough ride” style and was silent as to the cause of Gray’s injury. Mosby said only that Gray “suffered a severe and critical neck injury as a result of being handcuffed, shackled by his feet and unrestrained inside of the BPD wagon.”
According to the preliminary autopsy report, Gray sustained the injury from his head striking the van’s inside door, but Mosby’s statement omitted that. Nor did she allege any causal link between Goodson’s driving and Gray’s injury. There was no allegation of fact that remotely indicated that Goodson took any action that created a risk to Gray’s life that the officer disregarded. There was no allegation of any officer committing any illegal violent act.
Mosby made much of the fact that Gray was loaded onto the floor of the van while restrained and not secured by a seatbelt in accordance with the department’s regulations. The fact that the rule went into effect just nine days before Gray’s arrest is a mitigating factor. It may not have even been disseminated to officers.
What caused Gray’s head to slam into the door? A search warrant filed pursuant to the police investigation quoted Donta Allen, the arrestee picked up after Gray who was present for twenty of the thirty minutes that Gray was in the van. Allen stated that there was no “rough ride” during his transport. He also said that, while he couldn’t see Gray, he heard him banging against the walls. Allen was quoted as saying that it sounded like Gray was trying to injure himself.
Why would Gray intentionally bash his head against the door? He may have been acting out of rage. Before the injury, the van was pulled over and Gray was restrained with flex-cuffs and ankle manacles, which indicates he was bashing around in the van already. It’s also been widely reported that Gray suffered lead paint poisoning as a child, which is linked to severe long-term cognitive and behavioral problems in adults, including attention deficit disorder, impulsiveness, and aggression. Maybe Gray was angry about getting locked up for violating probation for carrying a knife in his pocket after the Possession charge less than a month earlier. Or, maybe, after seeing the iPhone videographers documenting his arrest, Gray decided to self-injure and allege police brutality.
These scenarios will be derided by those invested in the rush to judgment, but neither is very uncommon in law enforcement.
After his name became public, Allen was located by local news reporters. Jayne Miller of WBAL conducted a sidewalk interview with him where he emphatically denied helping police and appeared as nervous as one might expect someone in his situation to be. That is to say, he seemed afraid for his life.
When the reporter asked Allen if he told investigators that it sounded like Gray was trying to injure himself, Allen insisted that he only said it because he hadn’t yet learned that police beat Gray before he got in the van, which he now believes to be the case (although he provided no basis for this belief). He again didn’t say anything about a “rough ride.”
Since speaking with investigators, Donta Allen has acquired an attorney/handler who accompanies him on media rounds where Allen minimizes the original statement he gave investigators. That attorney is Paul W. Gardner, the principal of a “Corporate and Entertainment Law Group” who represented White House wedding crashers Tareq and Michaele Salahi and Felicia “Snoop” Pearson from “The Wire.” Gardner is well-connected with Mosby and the Democratic political machine that runs Baltimore, as documented here.
Paul Gardner’s involvement is curious because public records from the Maryland Attorney Grievance Commission show that he was disbarred on February 11, 2013 for a long list of major violations of ethical conduct.
Here’s the actual Court of Appeals opinion describing in detail Gardner’s predatory behavior toward clients.
Strange things are going on in Baltimore and none of it has to do with justice. Amid a morass of behind-the-scenes maneuvering by the entrenched political establishment whose policies enable their constituents’ despair, the newly-elected State’s Attorney has betrayed the public trust by filing baseless charges as a means of crowd control. Unfortunately, she can expect the full assistance of the federal government as the city’s political machine winds itself up to destroy the lives of six police officers in service of another false narrative.