Cops in Freddie Gray's death: Could politics tangle prosecutor's case?

State prosecutor Marilyn Mosby bears a heavy burden in prosecuting six Baltimore police officers for the death of Freddie Gray. The activist sweep of her announcement could complicate the task.

Alex Brandon/AP
Marilyn Mosby, Baltimore state's attorney, pauses while speaking during a media availability, Friday, May 1, 2015 in Baltimore. Mosby announced criminal charges against all six officers suspended after Freddie Gray suffered a fatal spinal injury while in police custody.

A questionable arrest, a moment of lost humanity, and actions of a "depraved heart" – those ideas are at the center of the legal case against six Baltimore police officers whose actions on April 12, the state alleges, led to the “homicide” of Freddie Gray, whose death roiled Baltimore and intensified anti-police brutality protests nationwide.

“To the youth of this city, I will seek justice on your behalf," Baltimore state prosecutor Marilyn Mosby said as she announced a litany of serious criminal charges just days after parts of Baltimore flared in riots. "This is a moment. This is your moment."

Ms. Mosby’s strong stand bucks a recent trend where prosecutors and grand juries have largely slow-walked investigations and declined to prosecute officers involved in highly controversial shootings where unarmed black men die. The rhetoric also raises questions about her impartiality, as the police union has already asked her to step aside due to "conflicts of interest."

But if critics see Mosby’s actions as responding to the will of the mob, many legal commentators instead see a professional adjudicator doing what’s exceedingly difficult to do in America: Holding police officers to the same legal standards as citizens.

“It’s at least uncomfortable to have the state attorney bring charges against members of the police department in her jurisdiction, mainly because the state attorney can’t do their job unless the police do their job, and they have to work together,” says David Gray, a law professor at the University of Maryland. “But when you talk about political pressure – that cuts both ways.”

While protesters took to the streets, at times violently, to demand the officers’ arrest, he notes, “I’m sure [police officials who work closely with the state prosecutor] were all trying to slow the process down and persuade her that charges weren’t appropriate. In that way, it is not fair to suggest she caved to political pressure. The better account is that there was good reason to move as quickly as discretion allowed, and she felt in her professional judgment that the facts and evidence were clear enough to go forward.”

Gray died on April 19, a week after being knocked into a coma and his neck and larynx broken during an unbuckled police ride, while his hands and legs were cuffed. Mosby said not only should he not have been arrested – his only “crime” was carrying a legal pocketknife – but that officers had various degrees of reckless disregard for an injured man’s life as they repeatedly ignored his pleas for help, and failed to render medical assistance as he lay unresponsive and bloodied on the floor of a van. The driver of the van has been charged with second degree murder, where a conviction requires that a jury finds the driver had a "depraved heart" – was criminally indifferent to another's suffering. Others face various assault and involuntary manslaughter charges.

To be sure, the prosecutorial stakes are inordinately high.

Prosecutors who have failed to navigate public pressure and the facts on the ground have in the past had spectacular falls-from-grace. North Carolina prosecutor Mike Nifong, who falsely prosecuted a group of Duke lacrosse players for rape, was disbarred and disgraced.

But if critics find reason to attack Mosby’s credibility and motives, the prosecutor already presents a unique front. A young African-American woman in a majority-black city, she comes from a long line of police officers. Her husband, Nick Mosby, is a city council member who represents Gray’s neighborhood. (“He makes the laws, I enforce them,” she explained.) And while she’s been on the job just four months, she has earned a name as a straight-shooting prosecutor who, after all, won election last year on promises to root out police corruption.

Still there are already rumblings in Baltimore that the officers won’t be able to get a fair shake, given Mosby’s nod to protesters. At the very least, experts say, defense attorneys now have some cause for asking a judge to move trials out of Baltimore, perhaps to a more police-friendly locale.

"She better be ready. It's going to be baptism by fire,' J. Wyndal Gordon, a longtime defense attorney in Baltimore who has litigated against officers in excessive-force cases, told the Associated Press.

Mosby’s announcement came only days after riots and looting engulfed parts of Baltimore, an outlet of anger and frustration over not only the treatment of Gray, but a long history of documented police abuses and lack of economic opportunity in the starkly segregated mid-Atlantic harbor town. The Baltimore Sun has reported that the city has paid out over $6 million in settlements in over 100 police abuse cases in just the past few years.

But the backdrop to the charges is also stark, as America has endured months of protests over police tactics and treatment of urban black youths, rising from incidents in Ferguson, Mo., Cleveland, New York City and North Charleston, S.C. where officers killed unarmed black men. In some of those cases, officers were cleared of charges by grand juries; notably, in the North Charleston case, the officer was charged with murder almost immediately after a video tape emerged of the shooting.

“Part of this is trying to show the community that this is being taken seriously, but at the same time [Mosby is] saying, ‘Yes, they’re cops, but they’re not going to be treated any differently than anyone else,’” says Todd Eberly, a political scientist at St. Mary’s College of Maryland, in St. Mary’s City.

In Gray’s case, the incriminating facts, criminologists say, were just too stark to ignore. Mosby said the officers put a man who had committed no crime in custody, and then acted with disregard for his life by leaving him unbuckled, against department policy, and then failed to render immediate help after Gray's head was launched into a metal bolt inside the police transport wagon, leaving him seriously injured.

 “The officers forgot their training and the law, but what they remembered is what they had become accustomed to being able to get away with, which means this prosecution is as much about what the officers remembered as much as what they forgot,” says Sam Walker, an emeritus criminal justice professor at the University of Nebraska and co-author of “The New World of Police Accountability,” published last year.

To be sure, a group of officers who certainly didn’t set out to kill Freddie Gray will continue to receive wide sympathy in the US, a nation whose public and courts traditionally defer to police officers, especially those working dangerous high-crime areas.

"Each of the officers diligently balanced their obligations to protect Mr. Gray and discharge their duties to protect the public," reads a letter to Mosby from the president of the Baltimore Fraternal Order of Police, the local union. "While I have the utmost respect for you and your office, I have very deep concerns about the many conflicts of interest presented by your office conducting an investigation in this case."

But one policing expert says the constitutional ideals at play in the death of Freddie Gray could ultimately trump allegations that Mosby's conclusions have been colored by her politics and connections.

“The fact is, it doesn’t really bother too many people that a police officer might have punched someone once or twice, where they'll say, ‘Well, the guy shouldn’t have run from the cops,’” says Robert Kane, a criminologist at Drexel University, in Philadelphia. “But the law says that [when Gray is injured due to reckless disregard] he is an un-adjudicated criminal offender who the police have now punished, and that’s illegal. A cop’s job is to bring that person to a magistrate, who will in a public forum read charges and proceed with hearings. After all, we fought a revolution to ensure that our court proceedings were public and that the police and executive branch were accountable.”

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