WASHINGTON, D.C. (May 2,  2015): Some of the charges lodged against six Baltimore police officers over the death of Freddie Gray, including especially the most serious, are likely to be dismissed or to fail at trial, possibly triggered more violence in Baltimore and perhaps elsewhere, says public interest law professor John Banzhaf.

Freddie Gray case summary

Banzhaf’s correct predictions in high profile legal cases go back to the NYC subway shooter, and include more recently the Zimmerman Florida self defense case, the Ferguson police shooting death, the Staten Island police choking death, and others.

Five of the officers are charged with causing the death of Freddie Gray (manslaughter and/or murder).  But to convict, the prosecutor must prove beyond a reasonable doubt that each, by his act or omission, was a direct and significant cause of the death – in other words, if Officer X had not done Y, Freddie Gray would still be alive.

If, as the prosecutor charged, Freddie Gray suffered “a severe and critical neck injury” [reportedly an 80% severance of his spinal cord] “following transport from Baker Street,” it may be impossible to find a doctor who will swear under oath that Freddie Graywould still be alive if only one of the officers had requested medical treatment at a subsequent stop.  Indeed, if his spine was almost completely severed early in the trip, and it was the injury to the spine which was the major cause of his death, it’s likely none of the subsequent omissions (e.g., to obtain medical aid, use a seat belt, etc.) can be shown to be a direct cause of his death.

Actually, says Banzhaf, it may be difficult to prove beyond a reasonable doubt on which of the several stages in the transport wagon’s journey the fatal spinal cord injury occurred. The charges do not recite any specific precipitating event: e.g., a ride made unnecessarily rough, any deliberate beating or other similar activity by any of the officers, tossing Freddie Gray into the van on his head, etc.

Without being able to prove beyond a reasonable doubt when the Freddie Gray spinal injury occurred, it may be impossible to show what action or inaction by which officer could have prevented that severe injury from becoming fatal.  Moreover, it’s not clear whose responsibility it might have been to either stop the wagon and call for medical help and/to restrain Freddie Gray with a seat belt.  In the absence of a clear rule about who has this responsibility  – e.g., the wagon operator, the arresting officer, the highest ranking officer, etc. – it may be hard to blame any one single officer for the death.

Moreover, even if Officer X had suggested stopping the van to obtain medical assistance and/or to properly restrain the prisoner, it may be impossible to prove beyond a reasonable doubt that this would in fact have occurred, and that the other officers might not disregard Officer X’s request.

If so, Officer X’s failure to take such actions would not be a cause of the death, since the death presumably would have occurred anyway if Officer X has behaved properly but his colleagues didn’t.

The mere fact that one officer may have played an initial role in a sequence of events which eventually lead to the Freddie Gray death does not mean he can be convicted of murder or manslaughter, since that requires that his action be shown to be a direct cause of the death without intervening causes.

For example, it is reasonably clear 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 an illegal one – was a cause of Grey’s death.

However, the intervening actions of a number of other officers who took over after the initial arrest occurred, and had a role in transporting the victim, are likely to be seen as 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 subsequently – e.g., if he is unexpectedly murdered by rogue cops transporting him, or even if he died in a hospital from malpractice, or was beaten to death in jail by another inmate.  This makes no sense.

Freddie Gray – additional considerations

It’s also important to remember that not all wrongful acts are necessarily crimes, says Banzhaf.  In the choke hold case in New York, many argued that, since choke holds were prohibited by police regulations, the officer who did the choking must be guilty of a crime. But the mere violation of a police directive, even if it ultimately leads to death, doesn’t necessarily make the underlying act a crime.

Similarly, if Baltimore officers violated a directive that prisoners must be belted in when being transported, they can face departmental discipline, but not necessarily a criminal conviction.

And, notes Banzhaf, it would be hard to prove that transporting prisoners without using seat belts constitutes depraved indifference to human life (what percentage of prisoners die in such situations?) or even negligence, especially since apparently it was standard practice in Baltimore until very recently, and is probably still the practice of many other police departments.

Moreover, it’s not completely clear that it was wrongful, or even negligent, for officers to continue to transport a prisoner simply because he complains of pain, problems of breathing, etc.  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 practice to continue to transport the prisoner to the booking station, since the medical treatment available there may be better than any he might receive 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.

Thus, in motions to dismiss the charges, it is also likely that the police will argue that the prosecutor deliberately overcharged to blunt the threat of further civil violence.

Here the fact that she twice used the demonstrators’ threat to continue disturbances until they obtain the result they think is fair – “no justice, no peace” – plus the very short time between her receipt of the police and medical examiner’s reports and her decision to charge six different officers, will also be used to suggest an improper rush to judgment in which she overcharged in the hopes of quelling civil unrest rather than for strictly legal reasons.

But, regardless of the reasons behind charges which seem far reaching in the apparent absence of a clear statement of exactly how 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. Ironically, the result could be more of the same unrest the prosecutor clearly did not want.

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


Freddie Gray
Freddie Gray