Six months have passed since the horrific death of Freddie Gray as a result of his arrest by Baltimore City Police officers on April 12, 2015, and the weeks of protests, civil unrest and general uneasiness that followed, punctuated by what was referred to as the Baltimore Rebellion or the Baltimore Riots, depending on one’s perspective. Since that time, the Gray Family has reached a settlement of potential wrongful-death civil charges with the City of Baltimore, and the criminal cases against the six police officers are preparing to commence. On September 24, the Baltimore Action Legal Team (www.baltimoreactionlegal.org) held a discussion on the Freddie Gray Case at the Real News Network building in downtown Baltimore, Maryland. The event was sponsored by Leaders of a Beautiful Struggle (LBS) as part of their “Malcolm X Talks” Series (http://www.lbsbaltimore.com). The four members of the Baltimore Legal Action Team (BALT) discussed the recent civil settlement between the City of Baltimore and the Gray Family as well as a number of aspects of the criminal cases against the six Baltimore City police officers who have been formally indicted in his death. A number of details of the civil settlement and the upcoming criminal case were explored during their presentation as well as the question-and-answer period.

The Civil Case: A Settlement to Quiet the Waters?

The civil case was brought by the family based on Freddie Gray’s wrongful death in the custody of the City (police). The family sued for monetary damages from the City. After negotiations, the City agreed on a settlement to be paid to the family in installments.

The settlement offer is a separate issue from the criminal cases.

One thing that not many citizens seem to understand, especially in the wake of the $5.9 million settlement offered to the family of Eric Garner in New York, is the Maryland State cap on damages stemming from civil suits. This was explained during the meeting, as well as the reasons why this Maryland cap was not applied to this case. Other cases of wrongful death in the past were subjected to a $200,000 cap set by the state of Maryland. One instance involved a $7.4 million settlement that was reduced to $200,000 because of the State cap on damages. The lawyer took $150,000, leaving the plaintiffs to split $50,000 among the children.

The cap has subsequently been increased to $400,000 by the City of Baltimore.

The Gray case resulted in a total award of $6.4 million, part to be paid in 2016 and part to be paid in 2016. The amount is to be split between the mother and father (amounts to each were discussed but are not really relevant here), subsequently to be distributed to the several children, meaning no one person is likely to receive the lion’s share of the money, especially after taxes and legal fees are taken. It is questionable who, if anyone, will “get rich” from this settlement, and in any case, no amount of money can adequately compensate for the loss of a loved one, especially in the brutal manner in which Freddie Gray died.

In any case, the $400,000 Maryland cap on damages was not applied to this case. There are several reasons for this, which were explained as follows:

There is no cap on Federal Civil Rights Charges. The likelihood of Federal charges being filed led the City to offer the settlement pre-trial, out of court. Because the suit was not actually filed or tried in court, the City agreed to the settlement and no cap was applied. Had the case gone to court on State charges, the cap would have applied.
It may have been prudent for the City of Baltimore to settle this case early. Had the City waited for the criminal trials and the officers were found guilty, the City’s liability could be reinforced and the payout could possibly be even higher, especially if Federal Civil Rights charges had been filed.
It would have been more difficult (practically in terms of expense and also in terms of conflicting stances of the City) for the City to defend a civil case based on a claim of no wrongdoing while also pursuing a criminal case against the officers based on a claim of wrongdoing.

Why did the City settle the civil case before the criminal case was tried? Did the City “cave” too quickly in the face of the threatened civil or Federal Civil Rights suit from the Gray family? A number of factors seemed to influence the City’s decision to settle early.

There is a lower standard of proof for a civil case based on wrongful death (which seemed rather apparent in this case) than there will be for establishing criminal guilt for the officers involved, which would have made the civil case harder to defend. In this settlement, the City does not actually admit specific wrongdoing but “accepts liability” in that it acknowledges that Freddie Gray should not have died in the City’s custody.
One example of the difficulty of a civil case as opposed to a criminal one is the OJ Simpson murder case. He was found “not guilty” in the criminal case which needed to prove “beyond a reasonable doubt” that he killed Nicole Brown Simpson, but with the lower standard of proof in the civil case, he was found “liable” for her wrongful death.
The settlement was not rushed as some observers believe. The parties negotiated for over three months, and other cases, such as that of Eric Garner ($5.9 million settlement) were taken into account as comparison cases.
This settlement means there will be no more civil suits, wrongful death suits or civil rights suits against the City after this.
The City has faced a number of excessive force and false arrest claims over the last several years, according to the BALT panel. $4.4 million total in 2010, $1.6 million in 2014, $4.2 million from police car collisions since 2010. A plaintiff who was paralyzed in a police transport case sought $39 million in 1997, and another sought $7.4 million around the same time. The final amounts awarded, through court action or settlement, was not discussed.
Was the settlement for the Gray Family “hush money” as some questioners believed? In a way, perhaps it was, because the family cannot sue the City in civil court for damages again. But this does not prevent them from testifying in the criminal cases against the six officers.
Did the “Baltimore Uprising” that followed in late April coerce the City into offering this settlement to avoid “adding fuel to the fire” that might have caused Baltimore to burn again? Or was it more to avoid spending the resources in attorney fees (law firms can apparently rack up huge sums in a very short time) and other expenses that would have been required in the event of an actual trial? Or was the City’s decision influenced by the national climate in which police murders of civilians have taken center stage, especially with recalcitrant police, judicial and government officials failing or refusing to press charges against officers who killed civilians, and even having proclaimed their actions legal and free from wrongdoing despite clear video evidence, as was most scandalously and sensationally shown in the cases of Eric Garner (New York City), Walter Scott (South Carolina) and Tamir Rice (Cleveland, Ohio)?
The Uprising may seem to have “forced” the City to pay the Gray family. Meanwhile, the settlement could also give the appearance of a City that was finally prepared to accept some of the “personal responsibility” that politicians often lecture citizens about accepting for their own actions. It “feels better” that the City did not say “this is not our fault” or that “your life is not worth anything” or that “you brought this upon yourself,” according to the BALT legal activists. “There’s something just about it. … There’s some metaphoric value, I think, in that.”

The Criminal Case: In It for the Long Haul

This is the timeline of the arrest of Freddie Gray on April 12:

Brian Rice makes eye contact with Freddie Gray. Gray flees and Rice pursues him, along with bicycle officers Garrett Miller and Edward Nero.
Miller and Nero apprehend Gray and initiate an arrest.
Miller and Nero call for the police van and put Freddie Gray in it. Officer Caesar Goodson is the van driver.
Freddie Gray is taken to “multiple locations.”
Officer William Porter becomes involved in the vicinity of Dolphin Street; he checks the van and allegedly picks Freddie Gray up off the floor and places him in a seat without securing him with a seat belt.
At another stop, Officer Alicia White looks in the back of the van, after which Freddie Gray is taken to the Western District police station.
There are a total of four or five stops along the way to the police station.

Thus, the six Baltimore City police officers who now face charges in connection with the death of Freddie Gray are as follows:

Lt. Brian Rice: The officer whose eye contact with Freddie Gray precipitated the chase and the arrest that left Gray mortally injured. He faces charges up to and including manslaughter.

Officer Garrett Miller: One of the bicycle officers who chased Freddie Gray, physically restrained him and arrested him. He faces charges of second degree assault and misconduct in office. Along with Officer Nero, these are the lightest charges of those filed against the six officers.

Officer Edward Nero: One of the bicycle officers who chased Freddie Gray, physically restrained him and arrested him. He faces charges of second degree assault and misconduct in office. Along with Officer Miller, these are the lightest charges of those filed against the six officers.

Officer Caesar Goodson: The van driver. He faces a number of charges including manslaughter and second degree murder, the most serious charges.

Officer William Porter: The fifth officer to interact with Freddie Gray. He faces a number of charges including manslaughter.

Officer Alicia White: According to the chronology we received, she was the last officer to interact with Freddie Gray when she checked the van during transport. She faces a number of charges including manslaughter.

Why did the police officers chase Freddie Gray in the first place?

The initial charge against Freddie Gray was that he was in possession of an illegal knife (though this could not have been determined until after he had been pursued and arrested, which would seem to bring into question whether there was probable cause to chase him in the first place other than “eye contact”). An illegal knife would have been one that was spring-assisted, such as a switchblade, and more than three inches in length according to Baltimore City law. The State’s assertion was that the knife that was found on Freddie Gray during the search at the time of his arrest was not an illegal knife.

The chronology of the criminal court cases and the most prominent pretrial motions (where decision are made as to how the Court will pursue the cases) up to the end of September was as follows:

April 12: the arrest of Freddie Gray.

April 19: Freddie Gray dies in the hospital as a result of grievous spinal injuries.

April 30: State’s Attorney for Baltimore City Marilyn Mosby received the report of the police investigation.

May 1: Ms. Mosby announces the charges against the six police officers.

May 8: The officers file motions to dismiss Ms. Mosby for prosecutorial misconduct and ask her to recuse herself from the case.

May 21: Baltimore grand jury indicts the six police officers.

May 27: The officers file motions to change the venue of the case from Baltimore City.

June 26: The prosecution files a motion for officers Goodson, White, Nero and Miller to be tried together.

July 10: Nero and Miller file motions opposing the effort to try them with Goodson and White.

August 17: Judge Barry Williams denies the subpoena sought by Catherine Quinn to put Ms. Mosby’s prosecution team on the stand at the hearing scheduled for September 2.

September 2: Judge Williams denies the officers’ request to dismiss the charges and against their request to remove Ms. Mosby from the case for prosecutorial misconduct.

September 10: Judge Williams rules that the trial will be held in Baltimore City.

These were not all of the pretrial motions. Some of the above motions can be renewed during the trial if anything changes that might influence the original decisions differently.

Jury Selection for the Criminal Case

The legal panel explained the process of jury selection for criminal trials, which is expected to be followed in the criminal cases here. The voir dire (“to see, to say” in French) process is to be followed. A large pool of potential jurors is summoned from among the citizens of Baltimore City, who are then reviewed by the attorneys for the prosecution and the defense. Questions are asked of the potential jurors about their knowledge of the case being tried, histories (for example, whether or not they or their families had been the victims or perpetrators of crimes similar to the one being tried), their attitudes (such as their feelings toward police) and their political opinions (such as their support of or opposition to the death penalty), and based on this information, the prosecuting attorneys and the defense attorneys are permitted to excuse individuals from serving (or rejection for cause) on the jury of their trial.

Both attorneys are also allowed a certain limited number of “peremptory” challenges in which they can simply choose to reject jurors for any reason as long as there is no indication of discriminatory intent (such as racial bias). In spite of efforts to curb racial bias in jury selection, plenty of research still indicates that racial bias does occur, but it can be hard to prove that racial bias was the intent, and thus it cannot be eliminated entirely. In fact, many cases of political prisoners have hinged on the use of racial bias in jury selection (among other abuses), most notably reports of a systematic use of racial bias in Philadelphia in the 1980s during the time of the trials of revolutionary Black activists such as Mumia Abu-Jamal, the MOVE Organization and the Black Panther Party.

Trials that involve more serious charges usually allow for more peremptory challenges of potential jurors by attorneys.

In the case of the trials of these officers, there will be six separate trials, six separate teams of lawyers for the prosecution and the defense, and possibly six separate strategies. For example, even though the most recent pretrial motions resulted in all six cases being tried in Baltimore City, efforts to move some of the trials could succeed upon later motions. Trials could be held concurrently (at the same time), consecutively (one right after the other) or some combination of these. Defendants could opt for jury trials (a “trial by one’s peers”) or court trials (in which the presiding judge rules). Anu of the trials could change judges for any number of reasons.

The entire voir dire process could in the end be unsuccessful, in that the jury pool could be considered too influenced by the sensational news of Freddie Gray’s death and the resultant Uprising to yield a sufficient number of potential jurors to fir the court’s standards of objectivity and impartiality. In that case, the court could conceivably reconsider moving the trial venue out of Baltimore City.

The State’s Apparent Strategy

The State’s Attorney’s Office stated its intentions to vigorously prosecute the six officers when Ms. Mosby announced the charges against them on May 1. It appeared the State intended to try Porter first, although he was the fourth police officer to come in contact with Freddie Gray during his arrest. This may be because he might be considered a potential material witness in the trials of Goodson and White, or perhaps because of statements he was reported to have made regarding Freddie Gray’s condition and his need for medical attention during the arrest and transport. The State may wish to have the option of calling Porter after his trial as a witness in the other trials. If Porter is convicted, this plan would be delayed until after all his appeals are exhausted and his case is finally settled, which could take years. If, however, he is acquitted, he could be called to testify in those trials.

Each trial could take months to complete, especially when one considers the likelihood of considerable motions by the attorneys in each trial. In the event of the filing of appeals, that timeline could stretch to years.

Why were the bicycle officers who chased Freddie Gray and initially apprehended him facing the ;east serious charges despite videographic evidence that Freddie was in great pain before he was even placed in the police van? Apparently, this is because of the State’s prosecution strategy, which is based on the theory that his injuries were inflicted during the ride in the police van and not at the time of his initial arrest, and some speculated that the injuries he was treated for in the hospital were even more serious than what was evident from the video of his arrest, which would point to subsequent injuries being inflicted during transport. Thus Goodson, the van driver, is apparently considered the most culpable in Freddie Gray’s death and this faces charges up to and including second-degree murder. Meanwhile, the two bicycle officers, Miller and Nero, are charged with second-degree assault, which is likened to verbal threats that inspire fear (a misdemeanor), and misconduct in office. The misconduct charge is important, though, because without it Miller and Nero might face no penalty other than a suspension with pay. When these facts are considered, along with the stiff potential penalties also faced by officers Alicia White and William Porter, the apparent irony is that the three Afrikan-American officers (Goodson, Porter and White) could face more severe penalties than the three White officers (Nero, Miller and Rice) for the death of an Afrikan-American man (Freddie Gray) in police custody in a racially-charged case.

Additional charges can be added in subsequent trials as more information is gathered, but it can be tricky to amend the initial charges, especially since they arose from a grand jury investigation.

Attorneys for the officers argued that the atmosphere in Baltimore City was too volatile, that any jurors would be afraid to acquit the officers because such an act could lead to more unrest in the streets. Judge Williams rejected that argument, however, insisting that “justice will prevail.”

The Baltimore Action Legal Team also provided a brief discussion on interactions with police. There have been a number of “Know Your Rights” and “What to do in an Encounter with the Police” presentations and commentaries over the years. The advice of the Baltimore Action Legal Team will be reviewed in our next post.