For the fourth consecutive time, state’s attorney Marilyn Mosby has come up empty in the criminal case she trumped up against six Baltimore police officers in connection with the accidental death of Freddie Gray.
We have closely tracked this abusive prosecution (see here, and follow the links). Mosby brought the case on her own, before experienced investigators could complete the investigation. She brought it in the service of a demagogic racial narrative that cops – including black cops (three implicated in the Gray case) – are hunting down black men. She also brought the case in the absence of evidence. The proof is lacking for a simple reason that we have noted time and again – a reason echoed by Judge Barry G. Williams today when he acquitted Lt. Brian Rice of all charges: An accident is not a murder.
After four trials – a hung jury before a panel that Mosby did her best to taint with unfair prejudice, plus three acquittals on all charges by Judge Williams – the critical facts are now abundantly clear. Gray, who had a record of drug charges and minor crimes, was arrested in good faith. He was in possession of a knife and under the influence of narcotics. Though prosecutors lean heavily on the failure of police to strap him into his seat in the police van, a guideline calling for belting arrestees was brand new at the time, and may not have been communicated to the officers. Even if violated, moreover, the guideline is not a basis for criminal prosecution (as opposed to, say, departmental discipline). More importantly, the police had strong security reasons not to strap Gray into a seatbelt.
In addition, although causation is a key issue in any homicide case, the state cannot prove when during the van ride Gray suffered his severe injury (careening into the hard interior of the van). Furthermore, there are strong indications that the injury was self-induced – i.e., if Gray had remained in the position police had placed him in, lying on the floor of the van in restraints, he would not have been injured; in the course of carrying on wildly, however, Gray chose to stand up while the van was moving. Finally, police not only lacked any intent to harm Gray; they monitored his condition periodically and summoned medical help once it was apparent that he might be seriously injured.
By contrast, Mosby has a history of patently over-charging the case and expressly stating that she brought it to satisfy the mob’s chants of “no justice, no peace.” Her office, moreover, has repeatedly oversold the case and built up a record of withholding exculpatory evidence.
Even if we assume, for argument’s sake, that some of the police were negligent in some aspects of handling Gray, mere negligence is grounds for a civil suit, not a criminal prosecution. And on that score, as we’ve previously recounted, the City of Baltimore agreed to pay a $6.4 million settlement to Gray’s family last year – an amount that cannot, of course, compensate them for their loss but which, in a legal sense, appears to be far more than sufficient in light of the evidence of comparative fault. Justice has clearly been done and this case should be over.
As the judge observed again today, the burden for prosecutors in a criminal case is to prove criminal recklessness beyond a reasonable doubt – i.e., to demonstrate that police were grossly negligence in a manner that was indifferent to foreseeable consequences. That is clearly absent in this case, yet Mosby keeps trying – as if to send the signal to police that if she can’t convict them on the evidence, she will use her raw power to punish them with the process. The effect is the same, though not as dramatic, as it would be if she were somehow managing to win the cases: Police will be discouraged from doing their duty, meaning criminals will be encouraged to continue plaguing the community. But again, the black lives that ought to matter, the people in urban neighborhoods who are preyed upon by criminals, do not serve the hard Left’s anti-police narrative, so they will continue to be ignored.
A court can send repeated signals to a prosecutor that a case is hopelessly defective, but it is up to the state whether to continue prosecuting. Mosby appears poised to press ahead. It is a travesty: the war on cops … in the courtroom.
A version of this piece also appeared on National Review Online.