Baltimore Police Overcharged, Likely to be Dismissed

WASHINGTON, D.C. (May 1,  2015): The charges against six Baltimore Police officers in the case of a death caused by an alleged “80 percent severed” spine may go too far, and some are likely to be dismissed by a judge and/or fail if there is ever a trial, says public interest law professor John Banzhaf, because of at least two important factors: causation and divided responsibility.

Baltimore Police Overcharged, Likely to be Dismissed

To convict someone of second degree murder or many of the other homicide charges, it is not enough to simply show that the Baltimore Police officers acted improperly (e.g., failing to use a seat belt) or even criminally (e.g., making an illegal arrest).  In addition, it must be proven beyond any reasonable doubt that each such action or inaction was in fact a direct cause or a major factor in the death.

Baltimore police: How or when the fatal injury occurred?

Since the statement of probable cause read by Baltimore lead prosecutor Marilyn J. Mosby did not include any explanation of exactly how or when the fatal injury occurred, it may be difficult to establish that any of the alleged wrongful acts or omissions was in fact the cause of the death.  In other words, prosecutors may not be able to establish beyond any reasonable doubt that the injury would not have occurred if he had been seat belted after the third, fourth, etc. stop, or that rendering medical assistance at any particular stop would have definitely prevented the death from occurring.

It is reasonably clear, says Banzhaf, that had Freddie Gray not been arrested in the first place, none of this would have happened to him.  So, in some sense, the arrest – allegedly illegal – was a cause of Grey’s death.  However, the intervening actions of a number of other Baltimore Police officers who took over after the initial arrest occurred, and had a role in transporting the victim, are likely to be seen an intervening causes – breaking the chain of legal causation so that the false arrest is no longer a direct cause.  If not, then officers who falsely arrest someone would be criminally liable for anything which happens thereafter – e.g., even if he died in a hospital from malpractice, or was beaten to death in jail by another inmate.

Baltimore police: Issues raised by divided responsibility

Closely related to the problem of proving causation are the issues raised by divided responsibility, since to convict any particular officer, the prosecutor must prove beyond a reasonable doubt that his or her action or inaction was a direct cause of Grey’s death,  Thus, if officer X had for example suggested that the wagon be stopped, and that medical assistance be brought to the location of the transport vehicle, but other and perhaps more senior officers would likely have disagreed, it’s hard to be believe – much less to prove beyond a reasonable doubt – that the silence of office X was a direct cause of Grey’s death.

Moreover, it’s not completely clear that it was wrongful, or even negligent, for Baltimore Police officers to continue to transport a prisoner simply because he complains of pain, problems of breathing, etc.

The Baltimore Police will probably put on experts who will testify that such complaints are all too frequent, and usually false or at least exaggerated, so that a fixed rule requiring that transport vehicles always be halted in such cases would result in enormous wastes of time and much less efficient policing.  It may also be true that it is better to continue to transport the prisoner to the booking station, since the medical treatment available there may be better than in any ambulance which might be called if the transport vehicle is stopped in the street.

It’s quite possible that the prosecutor “overcharged” at least to some extent in this situation.  Prosecutors frequently overcharge to pressure defendants to testify against others, etc.

But, regardless of the reasons behind charges which seem far reaching in the apparent absence of a clear statement of exactly how and when the fatal injury occurred, it may well be that some will be dismissed by a judge, and that others will fail at trial, suggests Banzhaf.


Professor of Public Interest Law

George Washington University Law School,

FAMRI Dr. William Cahan Distinguished Professor,

Fellow, World Technology Network,

Founder, Action on Smoking and Health (ASH)

2000 H Street, NW

Washington, DC 20052, USA

(202) 994-7229 // (703) 527-8418

http://banzhaf.net/ @profbanzhaf

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  • RB

    Bwahahahahahahah —– sitting in your moms basement and trowing out insults and lies makes you great representative for your cause….LOLOLOLOLOL Come out out little man…..show us who you are instead of hiding in the shadows of the internet like the coward you know you are.

  • The Real RB

    RB is a homosexual 12 boy who lives at his granmas house. He has been
    partially disabled since birth so he goes on line and lies about
    military service while trying to sound hard. Really he is just a casual
    scrub tho no one listen to him

  • bacchys

    If you “actually…do know,” why are you peddling falsehoods?

    There’s a good chance the cops charged with an unlawful arrest will get off based on a “good faith” belief they had probable cause- even though the knife in question as described in the arrest report wasn’t prohibited by Maryland or Baltimore City law.

    Just as they get the benefit of the doubt where it comes to good faith, so does the prosecutors. Shoot, she’ll get even more of a benefit of the doubt from a judge. The knife is lawful, so there is more than sufficient probable cause that their arrest was unlawful because it was. The only question that genuinely remains on that issue is whether or not their arrest of him was a crime.

    Then there are the charges related to his death. The facts are he is dead and while they were responsible for his well-being. There is certainly evidence which points to actions taken by them which led to his death. It may not be sufficient evidence to garner a conviction, but it’s very unlikely it’s insufficient enough to sustain a civil suit for malicious prosecution.

    Then there’s the lack of any evidence that Mosby has any personal animus towards any of these officers.

  • Kogashuko

    Actually I do know what is required… Move along.

  • snickit

    I wouldn’t be surprised if its a bench trial.

  • bacchys

    Not all of them are charged with his death, and you’re wildly mistaken about what they’d need to prove in a civil case.

  • Kogashuko

    Nah, unless the prosecution has more the fact that he died in the van is not enough to prove all the officers did it or in this case he died as a direct result of a felonious act or gross neglegence. All they have to prove to win a lawsuit was that the charges or criminal complaint was grosly lacking probable cause or false and there was some additional level of motivation. The city will settle just like they will settle with freddie’s family.

  • bacchys

    The prosecution doesn’t have to prove he didn’t die of medical malpractice “beyond a reasonable doubt.” They don’t have to disprove he was injured by the cast of Star Trek secretly beaming themselves into the police van, either. There’s no credible evidence of medical malpractice and he already had a broken neck, crushed voice box, and was in a coma before he arrived at the hospital.

    Their chances of winning a malicious prosecution suit- even if found not guilty- is roughly the same as my chance of being crowned King of Albania.

  • bacchys

    Where did he “attempt to lynch another entire police department”? What other police department did you have in mind, other than Baltimore’s?

  • bacchys

    What doctor gave him any orders that he wasn’t following? The internet rumour that he’d had neck surgery some time previous to this incident was unfounded gibberish.

    If you shoot someone in the stomach and he dies a week later, you’re going to be on the hook for murder.

    You have a sliding scale of what counts as evidence: you’re touting unsupported internet rumours and discounting what the Commissioner and state prosecutor have said about the case.

    I don’t know if they’re guilty of a crime. I haven’t seen enough evidence draw a conclusion one way or the other. But they were certainly responsible for his well-being while he was in custody, and those that arrested are responsible for doing so despite not having probable cause to make an arrest. The knife he had wasn’t unlawful for him to carry in Maryland.

  • ChattyKaty

    Your comment only proves you are unable to see beyond your vast generalizations. It’s ridiculous! It’s beyond obvious you are a racist, or intent on creating division on the basis of race (YES I SAID IT) and would say the same thing to any white person judging any other race as a whole based on some peoples actions! Their are plenty of people of ALL races who are against police brutality, plenty who don’t want to see anymore avoidable deaths and plenty who are committed to doing what they can to change things for the society as whole in terms of racism. I am sorry you don’t see that not all ‘white folk’ are the same. I am sorry you only see what you want and think it’s ok to disrespect others by telling all ‘white folk’ to shut up… when the majority want this world to be a better place for ALL of humanity, regardless of race!

  • RB

    The author of this article demands that an exact explanation of the exactly how or when the fatal injury occurred. It is CLEARLY not the prosecutors job to supply information to the public that could jeapordize her prosecution.

  • RB

    The author of this article demands that an exact explanation of the exactly how or when the fatal injury occurred. It is CLEARLY not the prosecutors job to supply information to the public that could jeapordize her prosecution.

  • Doreen Gaffney Barr

    Please don’t encourage the hate and fighting between American citizens. Can’t we try to stop that?

  • SMH

    I wish white folks (in particular white conservatives) would just stop talking, because your hypocrisy is gut wrenching. You people were quick to promulgate Gray’s arrest record as a deflection tactic; but the fact of the matter is that Gray committed no crime on April 12, 2015. He was entitled to due process. But guess since he is 1. a black man, and 2. ran from the police, he was not entitled to due process, right?

    Again, just shut up, white folks.

  • IllinoisPatriot

    Actually, there’s a LOT of doubt that the arrest was inappropriate.

  • IllinoisPatriot

    I won’t say what we HAVE to face, but I CAN say what we ARE facing: a bunch of racist bigots that are jumping to conclusions in an attempt to cause rioting (which they are succeeding at) and that do NOT believe in law-and-order or due process or the US legal system or the guarantees and protections of the Constitution.

    We are dealing with a bunch of anti-American Atheistic anarchists and communists.

  • IllinoisPatriot

    Your ‘learning experience’ is nothing more than a recap of twisted facts, inuendo, assumptions racist, anti-police accusations, and lefty talking points.

    Start with the seat belt. As stated in several places, the NEW policy was new and not fully communicated. The OLD policy was not to put officer lives at risk if the prisoner decided to attack an offcer while he was reaching across the prisoner to access the seat belt in order to ‘buckle him in’. These are adults, not 4-year-olds, seat belts are designed to save lives during collisions – there was no collision with the police van.

    Seat belts are known to cause injuries in collisions in private automobiles but are deemed better than losing lives. Seat belts are not required on school busses, nor are they provided. Why do prisoners need more coddling than school children ? How many school children are injured each day because of being thrown around inside the school buss or because of ‘rough rides’. Seat belts are therefore clearly not designed to prevent injuries as you claim. Many studies have shown that seat belts without accompanying shoulder belts are inadequate to preventing injuries, yet nothing is indicated as to whether these police vans were equipped with shoulder belts. Perhaps you’d prefer that prisoners be strapped into car seats so they won’t get hurt while being driven to jail because they might otherwise get hurt ? Grow up.

    You say the videos show that he was unable to walk during his arrest, yet all I see is a prisoner ‘gone limp’. It’s your own assumptions and cop-hating blinders that convince you that because you look at a video with a limp prisoner, you ASSUME he is unable to walk – and you ASSUME this because he is putting on a show for cameras as he is arrested. You say this with no proof whatsoever.

    As to your conclusions, they are built on nothing more than supposition based on your own bigotry and hatred – not on any evidence you have presented or that has been made public.

    Your attempt to lynch another entire police department deserves to fail. You have no interest in justice. Your only desire here is to lynch the police without evidence. You’re no better than the KKK was in days of yore.

  • IllinoisPatriot

    There’s no evidence Freddie was murdered. Accusations and fear of race riots are not evidence.

    I’ve heard reported that Freddie lived for a week or more after his arrest. Since he violated doctor’s orders by being on the street in the first place, can anyone prove that he did NOT violate doctor’s orders once he was in the hospital after his surgery there ? Was there medical malpractice in the hospital (unlikely, but possible). If Freddie died from a broken neck, then the bolt inside the van is immaterial and not evidence of police wrongdoing.

    There has been no proof released other than the same type of spurious ‘eye witness’ accounts from racist activists that we saw in Furgeson.

  • IllinoisPatriot

    This is just the new “buckle-up, drive smooth” or “lynch-the-cops, so-won’t loot” mantra from the left to replace “hands up, don’t shoot” that has now been debunked and shot down.

  • IllinoisPatriot

    Why don’t they simply wait for Sharpton to get into his rabble-rousing, then arrest him for inciting a riot and perhaps hold him accountable for any and all damage done by his riot under RICO ?

  • Anna Ford

    Yous make a lot of good points on here my question is why the rush to make the decision public as one said to calm everything so their be no more rioting or looting .yes there is to some degree
    We will find guilt I never got to see the entire video of Grays arrest so until then I can’t find police brutality all police when arresting an individual who fights arrest that includes running from them police do need to be held accountable for there actions I don’t know if they can prove 2nd degree but definitely can prove neglect maybe unintentional

  • diver_girl_64

    OMG a liberal who is willing to see other views! I applaud you ma’am and thank you for speaking out without the Kool-Aid flavor. This is what this country was built on, different views are tolerated and heard and, when facts are applied, changed, one way or the other. I’m the lone conservative who can see well, at least through the fence….I can’t get to the extreme left wing anymore than I can understand the militant right wing. I just know what I am passionate about and what i don’t think Federal government should even bother with

  • diver_girl_64

    while the entire legal rhetoric and logic gives me a migraine, I find it interesting that these charges were rolled out in advance of Sharpton’s planned gathering on Saturday. What a way to find how to dispel burning a city. i don’t know if the charges will stand but I’m petty sure it was the only way to avoid more riots and Baltimore City decided that was more important than justice. Quite frankly that my have been the best long term pragmatic decision regardless of how hypocritical I find it.

  • Bro.C Bro.C

    Gray family attorney, William Murphy, in the pockets of the attorney general Marilyn Mosby makes a difference on the states attorney being bias on the ostensibly investigations besides Nick Mosby is the city councilmen married to Attorney General Marilyn Mosby. Mrs. Mosby contrived explanation on new information is homologous with the Baltimore Lynching mob. Mrs. Mosby speech to the media was menial in her delivery but her interview was contentious to say the least so the FOB must call her out on her homogeneous statements of the Baltimore mobs findings!

  • John Reilly

    IllIegal arrest….what an Idiot….

  • John Reilly

    Wake up……bobloblaw67….you are an idiot…..Freddie Gray tried to cause injuries to himself, he did not try to kill himself…..what a moron you are.

  • John Reilly

    DatBus……you have your head on straight….and as far as I’m concerned….you are my brother, I’m white, you’re black….but we think alike…….the right way….think, investigate and then act if necessary…….ya feel me, Bro’.

  • JacobBe5

    Given the actions in Baltimore change of venue motion is obvious. Guessing they’ll ask for Anne Arundel.

  • Kogashuko

    Well the bigger problem is that the prosecution has to prove beyond a reasonable doubt that he didnt. In this case they only have evidence that he died of what is ruled a homicide. The city will likely be paying out to them for either malicious prosecution or deformation of character if they dont have more. These charges are mob rule and mob rule only. As far as internet rumor, no they have statements made by another man in the bus which he semi recanted stating “these sensored will kill me.” There also might be an additional stop made which it sounds like the dumb idiots rioting burned up. Even if the evidence is damaging any lawyer worth their weight would attack the recording device and times. Since maniacs burnt up the device that might be gone. It would be funny if they got off for the looting idiots.

  • DatBus

    I swear to God I don’t know what has happened to my fellow Liberals. Did yall forget what just happened in Ferguson? For months the national media slandered the police officer, spinning a complete lie about his conduct regarding the shooting of Michael Brown. HANDS UP DON’T SHOOT was the mantra repeated by protestors and “journalists” across this country, yet in the end the officer, who’s career was destroyed, had done nothing wrong. This woman spoke with great racial contempt in her voice. I can’t imagine anyone thinking that’s a good thing. If we allow justice in America to descend into the brand of racialized “social justice” that seeks to pin-it-all-on-whitey it will be a giant step backwards for the country who invented the Rule of Law. If these officers are responsible for this man’s death then they should pay, and we will know when the facts are presented. Given that none of us have any idea what the facts of this case are, there’s no good reason to be supporting any “badassness” from a public official sworn to uphold justice.

  • Bobloblaw67

    youre an idiot. The guy committed suicide to frame the cops for murder? Nitwit

  • Bobloblaw67

    where will the jury pool come from?

  • bacchys

    There’s no evidence he did it himself. Internet rumours aren’t evidence.

  • bacchys

    I think he’s overstating the ease with which they can beat all possible charges (including lesser included offenses), and the prosecution isn’t limited to what is in the charging document. I do think she’s likely overcharged with at least some of the officers.

  • Steve_o

    More like 18-24 months, but yes you’ll be saying that eventually. The Baltimorons just want the riots to stop now. They’ll blame the system later when it all falls apart.

  • Steve_o

    I had already come to the same basic conclusion as the writer. The screeching from the Left is going to be epic when this case is over. If there are any convictions, they will be low level and the punishment will be considered wrist slaps by perpetually offended.

  • Shitfucker

    Like Andy Dyson here lol. Hide behind the reasonable doubt as long as you can copy apologists.

  • Andrew Dyson

    What police brutality? That has yet to be proven. There is clear reasonable doubt here.

  • Andrew Dyson

    Very overcharged considering there is some evidence or suggestion that the guy did it to himself to try to frame the cops.

  • cris

    Should be interesting to see how this all plays out.

  • Kelly Jackson

    Facts, or the nonsense you read on social media?

  • Kelly Jackson

    It’s an obvious over charging to appeal to morons.

    There’s no way a murder conviction is going to come out of this

    And i’ll be happy to say “I told you so” in a few months

  • Raul Miller Miller

    Posting credentials will not change the facts Sir

  • Jono

    You wishing they would beat the rap won’t make it so. How do you explain away the illegal arrest from which all other charges flow???

  • norberto chavez

    This is a learning experience for all of us. Help me work this through…

    – The didn’t just fail to use a seat belt. They placed a handcuffed injured man in a metal box…without a seat belt. Police give citations for not wearing a seat belt. “Click it or ticket.” I’m sure they all buckled up on the way to and from work that day because it’s fashionable. There’s only one safety device in the back of the van and it saves lives by preventing head injuries. They created the danger of Gray absorbing the force of an abrupt stop with his head. How is that not improper?

    – You say the prosecution might not be able to prove that a seat belt would have prevented injury after the 3rd/4th stop. But, I thought the prevention comes from already being secured before the 1st stop? The issue of rendering care would be moot if they would have used a seat belt from the beginning, no? I’m actually surprised they didn’t cite him for not using a seat belt.

    – He couldn’t walk after having several officers on him while one officer had his legs in a “pretzel.” He didn’t simply “complain of pain.” Do the events immediately preceding arrest not matter? If Gray crashed a car and complained of pain, would it be proper to forgo medical attention and just drag him and plop him in the van for booking? Or is there already a fixed rule regarding medical attention that they chose to ignore? If police decide to ignore his complaints, isn’t also true that it is “better to continue to transport the prisoner to the booking station [WITH A SEAT BELT!]?”

    Some charges may be dismissed by a judge. The rest might fail at trial. But not because there isn’t enough to show that they didn’t act intentionally and with indifference. Because…you know…police brutality is rare in Baltimore.

  • Rose McDonald

    We have to face it that some people will do anything, make any claim, introduce any hair-brained theory, to excuse police brutality, and try to muddy the waters before a trial even begins.

  • inorganicmolecule

    The key words in your post: “in the apparent absence of a clear statement of exactly how and why”. Discovery being made public at this point doesn’t seem wise, does it? I trust the prosecutor to be aware of the difficulties you present, and I trust that the prosecutor has evidence that will restore the connections you seem to believe may be broken.

  • Katie Sterling

    That’s what a preliminary hearing will sort our. Goodson clearly has the most serious charges. If he admits that he was told to bounce Gray around by one of the other officers, they should be held on similar charges. There is little doubt that the arrest was inappropriate. They all have a piece of that.