-Huff Post Black Voices
Securing a conviction against six Baltimore police officers in the death of Freddie Gray was never going to be easy.
Yet the prospect of even a partial win evaporated completely when Baltimore City State’s Attorney Marilyn Mosby announced on Wednesday, after three acquittals and a mistrial, that her office would drop all remaining charges against the officers.
“As a mother, the decision to not proceed on these trials is agonizing,” Mosby said at a press conference. “As a prosecutor, I must consider the dismal likelihood of conviction.”
Gray, who died at 25, now joins the growing list of black citizens killed as a result of police contact ― and whose death, judicially speaking, is considered accidental.
Police arrested Gray in a high-crime area of the city when he made eye contact and then ran. Once they apprehended him, police allegedly found an illegal switchblade (Mosby said it was a legal folding knife) and roughly handled Gray before shackling him and putting him in a police wagon without a seatbelt.
About 45 minutes later, after Gray allegedly complained that he needed a medic, police found him unconscious. He died in the hospital a week later from severe spinal injuries that the medical examiner said were consistent with those from a high-impact car crash. The examiner ruled Gray’s death a homicide.
By the time Mosby’s office dropped the remaining charges, three of the six officers had been acquitted: Edward Nero, Garrett Miller and Ceasar Goodson, who had faced the most severe charge of second-degree “depraved heart” murder. The trial of another officer, William Porter, ended in a mistrial.
For Justin Nix, a professor in policing, use of force and procedural fairness at the University of Louisville, Goodson’s acquittal was a tipping point that marked the inevitable end of the prosecutor’s case.
“After I saw [Goodson’s] case was thrown out, I was thinking ‘any day,” Nix said.
“It’s hard to pinpoint any one spot where it went off the rails,” he added.
The parties are now locked in a legal feud. After two officers filed complaints in May, a total of five officers are now suing Mosby for alleged false arrest and defamation, among other claims. Mosby cited the pending litigation as the reason she would not take questions at the press conference.
Legal experts have cited a number of ways the case was troubled from the start, including the lack of forensic evidence, the state’s unusual prosecutorial strategies, the hastiness with which the office filed the charges and the possibility that the wrong people were charged.
But others simply noted the systemic difficulty of convicting police officers in America.
The six officers faced charges ranging from assault and misconduct to manslaughter and second-degree murder.
But the state, though it put forth a number of theories, had no comprehensive video footage, confessions or eyewitnesses of Gray’s van ride to tap.
Prosecutors’ evidence included a statements from witnesses to his arrest and from an officer ― not facing charges ― who witnessed the transport van stop where Gray was shackled. Prosecutors also called on testimony from a man who was picked up and placed in a separate compartment of the transport van shortly before Gray was found unresponsive.
“How do you prove the intent? In these cases, there are two parties involved, and in this case, one is the suspect who is dead. The other is the officer,” Nix said. “Short of the officer confessing, it’s really difficult to prove.”
“There’s a code that [police] watch each others’ backs. There’s a culture of ‘us versus them’ — maybe now more than ever,” he added. “Officers are not going to get on the stand against their brothers and sisters. And that hurt the prosecution.”
Warren Alperstein, a former prosecutor with the Baltimore City State’s Attorney’s Office who now represents police in civil and criminal matters, said the end result was predictable. Alperstein observed the entire proceedings against the officers, but did not participate.
“From the outset of this case, I did not believe that the prosecution was going to be able to convict any of the six officers,” Alperstein said. “The evidence didn’t support the offenses charged.”
Mosby announced charges against the officers days after Gray’s funeral last April, while Baltimore was in the midst of protests, riots and arson. The speed of the indictment ― thought it garnered community praise ― may have been an early misstep.
“I think many would argue that the state’s attorney’s office rushed to file these charges to quash the civil unrest and rioting that was going on,” Alperstein said.
Though the state’s attorney’s office insists it conducted an in-depth, independent investigation and gathered sufficient evidence, Alperstein said the result of three trials suggested otherwise.
“The hung jury in the William Porter case coupled with the three acquittals would certainly lend credence that the investigation was lacking,” he said.
Michael Woods Jr., a retired Baltimore police sergeant turned whistleblower, took a similarly harsh view of the prosecutors’ strategy, but for different reasons.
“They didn’t even go after the right people — this is a supervisory issue,” Woods said, arguing that Lt. Brian Rice ― one of the first officers to come into contact with Gray ― should have borne the responsibility as the ranking supervisor on the scene.
“Of course the [other officers] follow the order of the lieutenant. Everything Nero and Miller did should fall on Rice,” Woods said. If the state’s attorney had more aggressively pursued a case against Rice, he suggested, “the department wouldn’t have fought nearly as bad.”
For the trial of Nero ― the second to be tried and the first whose trial ended in a ruling ― the state’s attorney’s pursued a strategy Alperstein called “a total disaster.”
The state compelled Porter, whose trial ended in a hung jury, and Miller to testify against Nero.
Porter, who was facing retrial, and Miller, who had yet to stand trial, would be prosecuted by a second team of prosecutors ― a so-called clean team.
That team would later be required to prove to the court that, when it came time for Porter and Miller’s trials, the prosecution wasn’t influenced by the testimony the men gave in Nero’s trial.
“It’s a logistical nightmare for the prosecution to prove that,” Alperstein said. “It would have been an extremely awkward hearing for the prosecution — as individuals would be called to testify under oath, in their efforts to prove to the court that no information was being used.”
“It’s unprecedented in Maryland,” he added, noting that such a strategy happens more often in federal courts.
In announcing the dropped charges, Mosby turned her criticism to the police role in the investigation.
“We’ve all bore witness to an inherent bias that’s the result of when police police themselves,” she said.
Ivan Bates, an attorney for Officer Alicia White, responded later that day that it was Mosby who rejected an independent investigator.
“Despite offers of assistance from state police and other agencies, the state’s attorney’s office declined to have the support and the guidance of some of the best investigators in the country,” Bates said, at a different press event.
Woods said Mosby’s decision defied explanation.
“If she knew the system meant there was no justice in having the cops investigate cops…then why did she have the cops investigate the cops?” he asked.
The state’s attorney’s office, Woods noted, has regularly failed other Baltimore residents who died as a result of contact with police.
Men, he said, like Tyrone West.
West (whose case predates Mosby’s tenure) died in 2013 after he was pulled over by Baltimore police in a traffic stop. Witnesses say the 44-year-old was beaten to death, though an autopsy found he died of a heart condition exacerbated by his struggle with police in the heat.
An independent investigation found that officers failed to follow basic protocols with led to tactical errors that “potentially aggravated the situation,” but it declined to find that they had used excessive force.
Prosecutors nationwide have struggled to get convictions of police after civilian deaths ― even in cases where the use of force appears much more clear than it was in Gray’s instance.
Since 2005, just 13 members of law enforcement have been convicted of murder or manslaughter in fatal on-duty shootings, according to data previously provided to The Huffington Post by Philip Stinson, an associate professor of criminology at Bowling Green State University. Stinson’s data doesn’t include cases like Gray’s where civilians died in police custody, as a result of police contact, were killed by means other than gunfire, or cases in which officers faced lesser charges.
The federal government does not keep comprehensive data on the number of police convictions of murder or manslaughter committed while on duty. Only because of efforts like The Guardian’s “The Counted” project ― which tallies the number of people killed by police in the U.S. ― is some of that information even available at all, Nix noted.
For him, a larger question underpins cases like Gray’s or West’s ― or the scores of other black citizens who are killed or injured after contact with police.
“Keep in mind Freddie Gray was stopped for a switchblade that turned out to be a pocket knife,” he said. “How many of these deaths started out as something minor that escalated into something that could have been avoided?”
“We’re arguing on the back end: was the officer guilty?” Nix added. “Let’s take a step back and prevent these things from happening in the first place.”