Can Prosecutors Convict Anyone at All in the Death of Freddie Gray?

Officer Caesar Goodson, who was driving the van in which the 25-year-old black man was fatally injured, faces the most serious charges.

Officer Caesar Goodson arrives at the Baltimore courthouse for a January hearing. (Bryan Woolston / Reuters)

The trial of Officer Caesar Goodson for his involvement in the death of Freddie Gray was always going to be the highest-profile case, among the trials of the six officers accused. Goodson was driving the van in which Gray was loaded on the morning of April 19, 2015. By the time the van arrived at a police station less than hour later, Gray’s spine was nearly severed, and he would die several days later. Prosecutors brought an unusually strong slate of charges against the officers involved, especially Goodson, who is accused of depraved-heart murder, the gravest of the charges in the case.

But the stakes have been raised by the results in the two preceding trials of officers in the case: The state enters Goodson’s trial with no wins so far. The trial of Officer William Porter ended in a hung jury and a mistrial; prosecutors intend to retry him. Then in late May, Officer Edward Nero—one of the officers who initially apprehended Gray—was acquitted by a judge on charges of second-degree assault, reckless endangerment, and two counts of misconduct in office. Nero opted for a bench trial, meaning Judge Barry Williams ruled, rather than a jury. (Defense attorneys have generally argued that the officers can’t get a fair jury trial in Baltimore.)

On Monday, in preliminary hearings, Goodson opted for a bench trial as well, despite expectations that he’d choose a jury trial. “Goodson's case presents a unique challenge for prosecutors in that he was the only one of the six officers who did not give a statement to investigators,” The Baltimore Sun reports. “The trial is expected to feature medical experts giving contrasting opinions over exactly how and when Gray was injured.” Many observers expect the question of whether Gray was given a “rough ride”—in which police intentionally bang suspects around while in transport, to punish or injure them—to be central in the case. Goodson, 46, also faces charges of manslaughter, second-degree assault, and misconduct in office.

The state’s winless record is particularly pivotal in this case because Baltimore City State’s Attorney Marilyn Mosby won loud praise and loud criticism when she announced the charges. Police-reform advocates viewed her decision as an unusually strong step to combat police abuses, especially after several cases around the country where prosecutors and grand juries were seen as too deferential to police. But critics worried that Mosby was moving too fast, didn’t have the goods to charge the officers, and was reacting more to political pressure created by protests in the streets of the city. (Others accused her of more crassly political motives: Her husband, City Council member Nick Mosby, was a prospective mayoral candidate, but he later dropped out of the race.)

When Mosby charged the officers, I spoke with David Jaros, a professor of law at the University of Baltimore. He brings a nuanced perspective to the case, because he has written on the need to reform police, but as a former public defender is wary of prosecutorial overreach. He argued at the time that Mosby had likely overcharged the suspects, but also that such overcharging was common. Jaros has been following the trials closely, and I spoke with him again to understand why the prosecution has struggled so far, what to expect from the Goodson trial, and the thorny issues that have arisen during the trials. This interview has been condensed and edited for clarity.

On what to expect from the Goodson trial:

It’s widely viewed as the strongest case for the prosecutor, and it is the one that has the most serious charge. It’s been really hard to evaluate the strength of the state’s cases, because we’re not privy to all of their information. Everything is based a little bit on the assumption that what we know is all there is to know. To the extent that the state has committed itself pretty clearly to the idea that Mr. Gray’s fatal injury occurred in the van, and I think both intuitively and legally the van's driver would appear to have the greatest duty of care, but that by no means guarantees that he's criminally liable in these cases. It remains to be seen the degree to which the defense can suggest that Officer Goodson was either not fully aware of Mr. Gray's condition or that another officer was the one who he was relying on to insure that he was adequately secured.

Officer Goodson is charged with depraved-heart murder in a case that on its face seems more like negligence, whereas depraved-heart murder says that the individuals showed such wanton and reckless disregard for human life that it amounts to malice. That is a very different mens rea that the commonwealth says is akin to intentional murder. The example I use in class for depraved-heart murder is that the students stand on the roof of the law school and throw cinderblocks off the edge into a crowd below. Where they're not aiming for anyone specifically, they don't have the intent to kill, but they're perfectly fine with the possibility that they might crush someone's skull. That's depraved-heart murder. It's a pretty significant step from that to failing to buckle someone into a van.

On the importance of whether the prosecution can prove that Goodson was giving Gray a “rough ride”:

If you believe that there was a rough ride and the driver not only didn't secure [Gray] but was attempting to cause him some physical injury by driving in an erratic manner or braking sharply, then it becomes more reasonable to think that those actions could amount to depraved heart murder. To me, it would be a big step in that direction if he were in the process of giving him a rough ride, or at least deliberately trying to injure him with an understanding that there was a high probability that he'd be causing this guy's death, and simply not caring. If he simply is not thinking about the risks to his passenger, and he's simply callously doing his job transporting people whose welfare he frankly doesn’t give a lot of thought to, I’m not even sure that amounts to recklessness. It may just be negligence. Negligence is just, you don’t do what a reasonable person would do. Recklessness is where you’re aware of what you should do and you choose not to do it.

On the lessons to be taken from Officer Nero’s trial:

It was pretty interesting to me that Officer Nero gets acquitted, but we should be very careful about what we draw from that. The state came up with this rather novel legal theory. They had to acknowledge a Supreme Court case called Illinois v. Wardlow, which is the law of the land despite it resulting in very racist and unfair practices, which says officers can have reasonable suspicion to chase and detain someone if someone in a high-crime area runs from them unprovoked. If in Sandtown, where Freddie Gray runs, someone runs from the police, they can grab them, but if they run in my neighborhood, they can't. The state’s attorney had to acknowledge that was the law. Their theory was, [Officers Nero and Garrett Miller] had the right to grab him, but they once they grabbed him they had to immediately act to dispel their reasonable suspicion or confirm it. Because they waited for the officer who initially called out the chase, this legal detention morphed into an illegal arrest, and that illegal arrest was an assault. That's really stretching the law. It’s certainly criminalizing conduct which police regularly engage in. Yet the state’s attorney was also, she commented in her closing statement, reacting to the police—the term she used was "jacking up [Baltimore] citizens" on a daily basis, by simply grabbing them and throwing them against a wall or a car without probable cause. If we can’t stop the police from doing that that kind of behavior, which is a violation of constitutional rights and which grossly degrades the social fabric in communities and trust between police and the people they are supposedly protecting, then we are pushed toward using the criminal law in a way that I find troubling for the individual defendant.

Interestingly, the judge acquitted Nero not because he rejected this theory, but because they failed to show that in the course of the detention morphing into an arrest, that Officer Nero was actually the one who touched Freddie Gray. As a law professor who was particularly interested in this novel legal theory and perhaps skeptical of it, I was expecting him to say this was a lawful detention. He never said that. If I were the prosecutor, frankly, I might be emboldened by the Nero acquittal, because there was not that clear rejection of their theory by the judge.

On why the state hasn’t managed to obtain a conviction yet:

As the case has played out in court and the evidence we’ve seen, we haven’t gotten a lot of additional information about what happened that suggested particularly more egregious behavior by the police, which has led to some difficult questions. It’s forced the prosecutor to adopt some novel theories about criminal liability. One explanation for the aggressive effort the prosecution is making in these cases is that they believe that even more egregious a thing occurred than they alleged in court, but they simply don't believe they have the evidence to back it up. That might explain why they are pursuing such legal strategies. At the same time, we haven’t seen it.

On the way the case is viewed in Baltimore:

One should be careful about speaking on behalf of the temper of a city, particularly when there are different communities who feel so differently about the case. People are talking about, "How does Baltimore feel about what happened? How does Baltimore view the fact that Marilyn Mosby's office lost this case?" What it's driven home for me is the degree to which there are very different communities in Baltimore who experience the police in very different ways, and therefore view this prosecution through very different lenses, and are drawing very different lessons about what the two most acquittals mean.

On the implications for police reform nationally:

I, being a former public defender and not a great believer in the use of criminal law to shape people’s behavior, am not completely comfortable with the idea of using individuals to promote broad policy reform, and yet at the same time we are faced with egregious practices a powerful institution that has thus far resisted any other efforts to reform it. We have to balance our concerns about individuals being used as a tool to reform—individuals and the application of the criminal law to reform the police, which I think raises issues of fairness and notice. I don’t think this is a case where, well, the police routinely beat the crap out of suspects to get a confession so it's unfair to charge the first one who actually get charged with assault. What is clearly a crime and has been ignored should be prosecuted.

Policing in poor communities is a real problem in America, and while this case may not involve particularly egregious behavior by these officers, it has certainly uncovered widespread egregious behavior that occurs on a regular basis and is not otherwise being acknowledged or dealt with by policymakers.

We have ample evidence that rough rides are occurring, even if there wasn’t a rough ride in this case. We have the state’s attorney acknowledging for the first time that police routinely grab people on the street, throw them up against the wall without probable cause, and search them. How are we going to stop this egregious behavior? I think the answer is, we shouldn’t necessarily be doing this with criminal law but, we can't then just not do it. We are struggling with a way out of this mess which requires that we respect individual rights and limits of what criminal law can accomplish but not give up on the need to reform egregious policing practices.