Commentary: Where Is the Justice in Baltimore?

Associated Press Photo
Associated Press Photo

Two Baltimore Police officers have now been acquitted in the death of Freddie Gray, including the only officer charged with murder, and the question has shifted as to what prosecutor Marilyn Mosby should do.

The reaction to the latest acquittal has been predictable.  As the Washington Post suggested last week, “the criticism that she rushed to charge the six officers without sufficient evidence, if only to limit the growing civil unrest in Baltimore, now looks like a valid one. Prosecutorial decisions should be made based on the evidence and the law, not on how they will play on the streets.”

But that’s not the uniform view.  For instance, Lawrence Brown, an Assistant Professor at Morgan State University, writing in the New York Times, argued, “It’s now clear that no one will be held criminally accountable for the death of Freddie Gray. Three trials and two acquittals mean that Freddie Gray somehow cracked his own spine and crushed his own voice box.”

But Professor Joseph Margulies, writing in Justia’s “Verdict,” writes that while “some have also implied that the failure to secure a conviction will mean that justice cannot be done,” he argues “that is emphatically not the case. In Baltimore, as elsewhere, it is high time people recognized that whatever a prosecution might deliver, it is something far less than justice.”

He noted, “It is helpful to recall the events leading to Gray’s death. According to the Baltimore police, Gray made eye contact with an officer and fled. In some communities, running at the sight of the police is not so much evidence of criminal behavior but of rational self-preservation. At the very least, it seems in a free country a person should be able to run to or from anyone she likes. The Supreme Court, however, thinks otherwise and has held that unprovoked flight at the sight of an officer is suspicious and authorizes law enforcement to give chase.”

Professor Margulies argues that the verdicts only mean “that the prosecution has failed three times to prove allegations of criminal wrongdoing. There is a morally significant difference between being innocent of all wrong and not guilty of a crime.”

However, he argues that “the more important dimension of Professor Brown’s reaction, and what it shares with many others, is the idea that the acquittal represents ‘the nullification of justice.’ Brown seems to believe that only by convicting the officers of Gray’s murder can there be justice for him and his family.”

He continues, “Convicting an officer for Gray’s death may lead to his punishment, but is that all we really want? If so, then I don’t really understand the difference between justice and vengeance. I would hope we want something more. I hope we want accountability for what happened, and change to ensure it never happens again. Why should we think a criminal prosecution is the only—or even the best—way to achieve these goals?”

The professor goes on to note that the idea that “the Baltimore State’s Attorney can or should be the voice of the community” contrasts with the fact, “This is the same office that prosecutes members of the community by the thousands every year, including other people who, like Freddie Gray, fled at the sight of police and were chased down.”

He argues, “[W]hy does the community need the prosecutor to speak for it? The community has its own voice, thank you very much, and does not need Marilyn Mosby to speak on its behalf.”

Instead, the Professor points to ways “we achieve accountability without silencing the community… that do not involve a criminal prosecution.”

He suggests, “Baltimore, in short, could conduct its own truth and reconciliation commission. Then, the community as a whole could assess for itself whether the officers’ conduct was blameworthy, and pass moral judgment as it saw fit. Depending on how the officers presented themselves, the community might also find reason to exercise forgiveness, which is surely an aspect of justice.”

He notes that the officers would have to be made immune from further prosecution, “but the whole objective is to achieve accountability without a criminal case. There are, in short, mechanisms by which accountability can be achieved and the community can register its moral voice without the need to invoke a thoroughly flawed system. Indeed, as it stands now, the decision to invoke the criminal justice system has silenced the community even as it has failed to achieve accountability.”

Professor Margulies concludes, “These ideas are not meant to exhaust the options. Rather, they are meant to stimulate discussion about other ways a community might seek justice. But the larger is point is simply this: Those who would dismantle the carceral state should not be the first to invoke it. If the goal is to achieve accountability, empower the community, and compel lasting change, a prosecution is about the worst tool in our arsenal. The criminal justice system has never been an instrument of justice for the poor and minorities in this country, and there is little evidence it will become one anytime soon. But that does not mean justice cannot be found for tragedies like the death of Freddie Gray. It simply means we must look elsewhere to find it.”

There is merit to the ideas of the professor here.  First of all, if we believe that the system of justice is flawed – then why should we look to it as the sole solution here?  In fact, given the systemic biases towards the word of police officers over those of citizens, getting a prosecutor to charge and try officers might itself be a victory.  But if we believe that the system itself is flawed, then perhaps we should look elsewhere.

Second, it is easy, relatively speaking, to prosecute police officers for transgressions that are not related to an extension of police power.  The officer, like the one in West Sacramento, who stalks, uses his color of authority to entice and then abuses that authority to rape women is relatively easy to prosecute.  But the line between lawful arrest, excessive force, police misconduct, and criminal conduct is a difficult one to discern, especially in a case like Freddie Gray where the death was at most indirect.

In the end, we need to change the system, and perhaps the best way to do that is not through a criminal proceeding.

For instance, yesterday, the San Diego Union-Tribune editorial board wrote, “As frustrations mount about Freddie Gray’s death at the hands of police in Baltimore, California cities are changing their entire approach to policing.”

“In Los Angeles, police officials have ordered officers to treat homeless people with “compassion and empathy.” In San Francisco, officials have ordered police to use “minimal,” not “reasonable,” force in handling their duties,” they write.  “These actions suggest the U.S. is in a new era in which expectations for officer conduct are much, much higher. Unfortunately, in California, the barriers to finding out about police misconduct are so high that details are rarely ever released.”

What needs to be changed is the law itself, rather than finding change within the current laws – which allowed for the proliferation of police misconduct and relies on extraordinary actions of political actors to enforce change.

—David M. Greenwald reporting


About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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31 thoughts on “Commentary: Where Is the Justice in Baltimore?”

  1. Barack Palin

    Another case of the left rushing to judgement and once again are being proven wrong.  It’s funny to watch how they now try and justify their biased conclusions they so quickly jumped to.

    1. David Greenwald Post author

      In what way has the left been proven wrong? Because they couldn’t establish criminal liability? Does that mean that the officers acted appropriately? No. It just means a jury did not find their conduct amounted to criminal conduct. I guess you also believe that OJ didn’t murder his wife.

    2. zaqzaq

      This case clearly highlights prosecutorial overreach in the charges and new info is now only coming to light that indicates that there were improprieties by the prosecutor during the grand jury proceedings.  This case never should have gone forward.  The facts show that a lawful detention occurred after Gray fled the police.  The prosecution ended up stipulating to this.  Due to the flight Gray was placed in handcuffs and then put into a sitting position in either 3 minutes (Prosecution) or 1 minute and 27 seconds (defense) when the knife was discovered.  The judge excluded the legality of the knife as an issue for some reason.  Gray is then moved into the transport van by the officers with all of the drama he caused which led to some Baltimore citizens even now claiming he was injured during the arrest.  The prosecution was never able to show that the email that contained the new seat belt policy (buried in other policy updates) was ever read by any officer.  Per witness testimony it was never covered in the daily patrol briefings and officers were not trained in this new procedure nor was there any evidence that these officers were ever trained in how to safely secure a prisoner in one of these vans for transport prior to the change.  Someone just checked the boxes in this area for Officer Nero without the training being done.  On an interesting side note the judge excluded evidence that neighboring department’s transport vans did not even have seat belts (much like school buses).  Then the black DA prosecutes the white officers for this alleged criminal misconduct and then gets her ass handed to her by a black judge and former prosecutor in the US Attorney’s Civil Rights Department where he prosecuted police officers for eight years.  This judge then finds numerous discovery violations during the third trial and threatens the prosecutors with sanctions.  Imagine evidence was concealed by the prosecutor and only surfaced during the third trial.  Now there are allegations of misconduct by the DA during the grand jury.  It appears that the DA gave at least one detective a narrative prepared by the DA to read to the grand jury.  That detective thought the narrative was misleading.  And when grand jurors asked clarifying questions for the detective the prosecutor did not allow the investigator to answer the questions and answered them herself.  That may constitute giving testimonial evidence to the grand jury which the prosecutor is not supposed to do.   I hope that the grand jury documents to include transcripts are turned over to the defense and reviewed by this the judge.  Even the Pugalist would have to agree that these developments put in question the ethics of the prosecutors.  I could go on about the rest of the trial evidence but am out of time this morning.

        1. Tia Will


          I am sure that if we were to both “scour the internet” we could find endless extreme positions on both sides. I fail to see how this approach supports either objectivity or relates to the current topic.

  2. Tia Will

     I would hope we want something more. I hope we want accountability for what happened, and change to ensure it never happens again. Why should we think a criminal prosecution is the only—or even the best—way to achieve these goals?””

    Taking the very long perspective, I would say that a measure of justice for Freddie Gray is already occurring in the very fact that this case has served as the source of a major rethinking and nation wide conversation about the role of police in our communities, the use of excessive force, and both police and prosecutorial accountability. While there will not be the immediate satisfaction some would take from a vengeance/punishment point of view, what there may be is the much more important shift in perspective from a desire for these negative outcomes to a goal of true accountability and transparency. I would certainly see that as an advancement of justice.

    1. David Greenwald Post author

      I agree with you. The small steps taken across the country from shifting of police tactics, to new guidelines from PERF that are being implemented on use of force, to body worn cameras, to basic awareness are testament to the change.

    2. quielo

      Interesting to note that despite Baltimore being 64% AA the demos has opted for more of the same in recent elections. Any desire for change was not reflected in election results.

  3. WesC

    I think with the $6.4 million settlement payment to Freddie’s family, they just might be feeling a little less these days.
    Nothing will put public pressure on a out of control agency to change quicker than a big hit to the taxpayers wallet.

      1. WesC

        Although the settlements probably are paid through  an insurance policy, I think the average citizen is much more likely to take notice when the repeated injury and/or death of alleged criminals during an arrest results in multimillion dollar settlements. The perception is that their tax dollars are paying for out of control cops, and these payments are coming from other programs which they may directly benefit from.

        1. quielo

          Many agencies pay over and over again. I really don’t see the cause and effect play out often as it’s too indirect. If you are tired of the payments in the PD then you have to elect a new government and the payouts form only a small piece of that consideration.


          In Baltimore the story is more about class than race as all the main players are AA. They have had a terrible violent crime problem for decades and the victims and perpetrators are both AA. Suppression of the underclass as crime fighting measure may have more appeal to people at-risk in Baltimore than people safe in Davis. It is entirely possible the voters in Baltimore are aware (at some level) of the methods used to suppress the underclass and tacitly approve as it increases their safety. The recent riots there are likely to have increased support of questionable policing methods. The results for the recent mayoral election are clear, status quo won in a landslide. The BLM candidate, who presumably would have enacted real change, received just over 1%.

          With no political mandate for change I don’t see settlements as doing anything other than providing a payday for certain people.

        2. Barack Palin

          I remember at the time of the settlement that there was a lot of questions being asked?

          ♦ no wrongdoing has ever been found;  ♦ Marilyn Mosby’s private attorney is the same attorney as Freddie Gray’s family;  ♦The Gray family never filed a lawsuit, so this is not a “settlement” per se’;  ♦ The possibility of any police wrongful conduct being found during trial is quite probably nil; ♦ The maximum payout under Maryland state law, if lawsuit filed – and if police misconduct could be identified, would have been $400k.

          It looks like those that were perplexed by this settlement have been proven right

        3. The Pugilist

          No wrongdoing has been found?  Really.  Who determines wrongdoing?  If you’re only standard is a criminal trial, you are ignoring a lot.

        4. Barack Palin

          Don’t you think it suspicious that they were so quick to settle and for a sum that was way over the top before the outcome of any court proceedings?

        5. Barack Palin

          I guess you missed this:

           The maximum payout under Maryland state law, if lawsuit filed – and if police misconduct could be identified, would have been $400k.

          Remember there was a witness that said Gray was purposely trying to harm himself.

        6. The Pugilist

          Tamie Rice’s family got $6 million settlement even after authorities declined to prosecute the officers criminally.  You didn’t answer – suspicious of what?

  4. nameless

    IMO the real issue here is “rough rides” administered to suspects by police.  My hope is the Freddie Gray case (including the civil suit) has brought about/will bring about some changes in police department policy on “rough rides”.  See:

    The failure of the prosecution in the Freddie Gray case also illustrates how difficult a prosecution case can be. The public may feel in their heart a defendant is guilty, but that is a far cry from proving a crime was committed beyond a reasonable doubt in a court of law.

    1. Barack Palin

      I could pull the comments from when this story first broke and there would be many examples.  Don’t have the time right now nor the will.  But it’s looking more and more like the conservative posters had it right.

      1. The Pugilist

        Only if you solely focus on the criminal trial outcome as opposed to the full picture (and accept the jury’s verdict as an accurate statement on the law itself which I don’t).

  5. tribeUSA

    “It’s now clear that no one will be held criminally accountable for the death of Freddie Gray. Three trials and two acquittals mean that Freddie Gray somehow cracked his own spine and crushed his own voice box.”

    No, sometimes accidents happen, including freak accidents. Though there may have been negligence, perhaps criminal negligence, in the failure to safely buckle in Mr. Gray (a seat-belt regulation on the Baltimore paddy wagons was not instituted until a few days before Mr Gray’s tragic ride. By the way, has there been any compelling evidence either supporting or refuting the ‘rough ride’ allegations?)

    Also, was an expert spinal specialist M.D. present at the autopsy; or brought in at some point to do a very high-resolution state-of-the-art examination of the structure of Mr. Gray’s upper spine and associated ligaments and tendons, etc?–perhaps Tia can weigh in on this, but it is my understanding that inherent subtle structural abnormalities or prior injuries (for which Mr. Gray may or may not have sought medical treatment) to the upper back/neck area can render a person more susceptible to later serious injury–a prior injury can be detected in bone by signatures of bone regrowth/repair, and in ligaments or tendons by scar tissue (which may be only very subtly demarcated; which calls for an highly competent and experienced spinal specialist M.D.)!

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