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A Word about Baltimore, Charges, and Grand Juries

To the great relief of anyone who believes in the rule of law, Baltimore City State’s Attorney Marilyn Mosby — thirty-five years old and four months on the job — filed charges on Friday against six police officers who caused the death of Freddie Gray last month. The officers were arrested and released on bail later that day. The most serious charge, “depraved heart murder,” carries a 30-year penalty. All six were charged with assault. What happens next? How is this case proceeding differently from the police-caused deaths of Eric Garner in Staten Island and Michael Brown in Ferguson, Missouri and Mauricio Jaquez in the Bronx?

Unlike in the Garner and Brown cases, State’s Attorney Mosby treated the criminal conduct of the officers here like any other criminal case: she had them arrested as soon as she developed probable cause that they had committed crimes. She will still have to present the case to a grand jury for indictment and to a regular (“petit”) jury for convictions. Assuming the evidence is there, probable cause is enough for the grand jury. But to secure convictions, she will need proof beyond a reasonable doubt.

In the Garner and Brown cases, the prosecutors manipulated the system by pretending to let the grand juries decide for them; i.e. they made essentially phony factual presentations so that the grand juries would not return an indictment. They did not commit themselves to the prosecution as Ms. Mosby has done in the Baltimore case. They treated the cases against police specially; anyone else who choked someone in Staten Island or shot someone on the street in Ferguson would have been arrested and indicted later, like the cops in Baltimore.

In our civil rights case involving the shooting death of Maurcio Jaquez, the Bronx district attorney declined to prosecute altogether. The DA apparently did not consider the autopsy report that showed Mr. Jaquez was shot in the back of the head and from above, or the police testimony showing that Mr. Jaquez was unarmed when he was shot with a Taser. There is no criminal prosecution in the Jaquez case, but our office is proceeding on a civil rights claim that is in the process of being dismissed and will be appealed. The City of New York is defending the officers, refusing to compensate Mr. Jaquez’s widow and three surviving children for their loss.

It’s now up to Ms. Mosby to convict the officers who caused the death of Freddie Gray. She has a tough fight on her hands. In most cases involving several defendants and complex facts, investigators look to the defendants themselves — i.e. the six police officers — to prove their case. By charging them early and not waiting for the grand jury, the prosecutor has enormous leverage to offer favorable plea bargains in exchange for cooperation to one or more of the officers. While such a move may be controversial and may not be well received, it seems necessary in a case like this. Juries reflexively support police officers, but they just as reflexively convict liars. Ms. Mosby needs to prove up what happened inside the van and why the officers did what they did. Without cooperation from at least one of the officers, conviction is not assured — and the Los Angeles riots in 1992 show that letting officers get away with it is just about the worst possible outcome.

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