Monday’s acquittal of Baltimore police officer Edward Nero on charges related to the death of Freddie Gray on April 12, 2015, might portend upcoming not-guilty findings for the five remaining Baltimore city police officers facing various criminal charges in Gray’s death.
Officer William Porter is slated to be retried after a judge declared a mistrial following a hung jury in the first of six trials that began last December. Also awaiting trial are Officer Caesar Goodson Jr., Lt. Brian Rice, Officer Garrett Miller, and Sgt. Alicia White. Although the internal investigation into Nero’s role in Gray’s death is ongoing, it is entirely possible that Nero will be back to full duty patrolling the streets of Baltimore at some point in the not-too-distant future.
There have been strident calls from predictable quarters for the Baltimore City State’s Attorney, Marilyn J. Mosby, to dismiss the charges against the remaining five police officers, and Mosby is steadfast in her commitment to see the trial process through to its eventual conclusion. The interests of justice for Freddie Gray, the residents of Baltimore, and the Baltimore police officers facing trial demand she do nothing less.
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Just don’t expect guilty findings for any of the five remaining Baltimore police officers facing trial.
Nero was facing relatively less serious charges compared to those officers who remain on the trial docket. If prosecutors couldn’t hook Nero for four misdemeanor charges, they’re not likely to convict any of the remaining five officers for anything close to involuntary manslaughter, let alone “depraved heart murder.”
By all accounts, Judge Barry G. Williams, the trial judge who found Nero not guilty in the five-day bench trial (and who happens to be African-American), conducted a methodical, thorough, and meticulous analysis of the facts presented during the trial and came to the conclusion that the prosecutor failed to present evidence sufficient to warrant a conviction.
So far that’s 0- 2 for Mosby’s office and it’s fair to say that there is little reason for optimism in the Baltimore City State’s Attorney’s office securing the convictions of any of the remaining police officers awaiting trial, and certainly extremely unlikely that all will be convicted in a sudden (and impossible) turnaround of prosecutorial good fortune. First a jury couldn’t convict during a jury trial and now a judge wouldn’t convict during a bench trial.
But will justice evade Baltimore and Freddie Gray? Three of the six officers are charged with involuntary manslaughter, and one of those three faces an additional count of “depraved heart murder.” Prosecutors will need to prove beyond a reasonable doubt that each of these officers acted with criminal negligence or recklessness in causing Gray’s death from a spinal cord injury sustained in the back of a police van. They will need to convince a judge or a jury that the officers knew or should have known that their actions were so dangerous as to cause an immediate threat to Gray’s life. Prosecutors need also prove that the officers acted with a reckless disregard and indifference for Gray’s safety in ways that they knew or should have known would kill him. Simply put: This is not going to happen in the Circuit Court for Baltimore City.
That does not mean however, that justice will elude Freddy Gray and Baltimore. It’s just that, despite the best of intentions, Mosby and the Circuit Court for Baltimore City were never the appropriate venue for seeking accountability, responsibility, and legal culpability from Baltimore police officers and the Baltimore Police Department for their role in the police violence that led to Gray’s death.
If the interests of justice are to be met in the death of Freddie Gray and if the Baltimore Police Department and its officers are going to be held accountable for their role in Gray’s death, this can only be achieved through the intervention of the U.S. Attorney, the Department of Justice, and the Federal Bureau of Investigation. To their credit, Baltimore Mayor Stephanie Rawlings-Blake, the City Council president and other elected officials in Baltimore actually made an unprecedented request to the DOJ to investigate the Baltimore Police Department. In April 2015, DOJ opened investigations into Gray’s death at the hands of Baltimore police officers as well as a so-called “pattern and practice” investigation of the entire Baltimore PD. Such “pattern and practice” investigations focus on police department practices that may routinely violate citizens’ civil rights and civil liberties protections.
If the DOJ finds that such practices are determined to be widespread and routine “patterns,” particularly in communities of color, the Baltimore PD can be compelled to implement widespread reforms. If Gray’s death at the hands of Baltimore police officers can be proven to have violated Gray’s civil rights, then the “Baltimore Six” will be tried in federal court. And it is this prospect, a civil rights trial in federal court, which ought to (and no doubt does), cause no small amount of dread and anxiety for Edward Nero, William Porter, Caesar Goodson, Brian Rice, Garrett Miller, and Alicia White.
