Yesterday, Baltimore State’s Attorney Marilyn Mosby announced that a grand jury had indicted six police officers for the death of Freddie Gray. There were, however, changes to the charges that were announced by the prosecutor a few weeks ago.
Analysis by the Baltimore Sun suggests that “subtle differences after indictment in Gray case could be sign of shift in thinking.”
One of the interesting facets of this case is that the prosecutor opted to go the grand jury route, which would give her more control over the charges, but leave the case shrouded in secrecy – as, clearly, the prosecutor is not willing to put her cards on the table for the public to examine just yet.
The Sun notes, “Baltimore lawyers who are not connected to the case say some of the changes could mean prosecutors are focusing less on Gray’s initial arrest — which State’s Attorney Marilyn J. Mosby said this month was unlawful — while others suggest prosecutors are trying to give themselves a backstop should any part of the case prove faulty.”
The Sun states that the major features of the case have remained the same. Officer Goodson, the one who drove the van, remains accused of second-degree murder and three other officers face the charge of manslaughter.
However, Lt. Rice along with Officer Nero and Officer Miller, all of whom were involved in the initial stop of Mr. Gray, no longer face the charge of false imprisonment. The charge of false imprisonment, while intriguing to many, concerned the arrest itself.
The Sun reported, “Police said it could leave officers worried that an error of judgment might lead to criminal charges.”
Defense attorney A. Dwight Pettit told the Sun a few weeks ago, that he believes the charges were reasonable, however, the charges of false imprisonment were the most unusual. He said, “This is the first instance I have heard of in Maryland of bringing criminal charges for the violation of a citizen’s constitutional rights.”
What is not clear is why the false imprisonment charge disappeared. One person the Sun spoke to, former prosecutor Kurt Nachtman believes that the grand jury did not find grounds to support it.
“You would think if the prosecution handpicked the charges they’d be the same across the board,” he said.
On the other hand, “Page Croyder, another former prosecutor, said it was possible that Mosby’s office decided the false imprisonment charge was a mistake and did not offer it to the grand jury as an option.”
After looking at the legal analysis, we agree – especially since the other charges seem far more important.
Instead, they added the charge of reckless endangerment, a misdemeanor that has a five-year potential sentence in prison.
Ms. Croyder told the paper, “Adding that count — probably a decision made by prosecutors, rather than the grand jurors — gives prosecutors a fallback charge at trial if they struggle to convince a jury of the weightier offenses.”
The Sun writes, “She called reckless endangerment, which means a defendant did something to put someone seriously at risk, a ‘kitchen sink’ charge.”
“This is clearly a shift in strategy by the prosecutor’s office,” Ms. Croyder said. “Adding a charge of reckless endangerment tells me that there are issues about proving the more serious charges.”
The issue of the use of a grand jury itself is interesting.
The Sun notes, “In Ferguson, Mo., a grand jury was allowed to review all the evidence police had collected in the fatal shooting of Michael Brown, and declined to file charges. A grand jury in New York also declined to indict officers in the chokehold death of Eric Garner.”
However, in the Gray case, one local defense attorney believes “it’s unlikely the state’s attorney’s office did much more than call a witness to read a statement of facts in support of the charges.”
“You don’t outline your entire case in front of the grand jury,” he said.
Unless, of course, you want to undermine your case.
In California, Senator Holly Mitchell (D-Los Angeles) has introduced SB 227, a bill to prohibit the use of the criminal grand jury in cases of officer-involved shootings or in cases where excessive force used by an officer results in the death of a suspect.
The complaints about the lack of transparency are well founded. Senator Mitchell’s office noted that, originally, secrecy in grand jury proceedings was intended to protect the reputations of the unindicted individuals accused of crimes whom grand jurors determined should not stand trial.
However, given modern realities, in “today’s world of blogs, lightning-fast news, and video cameras at the touch of a cell phone, the original purpose of the grand jury has lost its meaning.”
The unintentional consequence, the senator said, has become a way to keep citizens from being fully informed and involved in the trials of those peace officers accused of abusing their power.
In the case of Freddie Gray, clearly, officials do not want to release details of the incidents to the public.
The grand jury is rarely used for criminal indictments. In Yolo County, for example, the DA’s office used a grand jury to indict Marco Topete for the 2008 killing of Deputy Sheriff Tony Diaz, however, even in other high profile cases such as the Daniel Marsh case, the DA opted to go the public preliminary hearing route.
Is that a sign of the weakness of the case, as some believe, or an attempt to grow more distance between the civil unrest and the disclosure of critical facts? Only time will tell.
—David M. Greenwald reporting