by Tom Nolan, Associate Professor of Criminology, Merrimack College; 27-year veteran of Boston Police Department
I applaud Marilyn Mosby's swift and decisive move in charging the six Baltimore police officers on Friday, May 1 with crimes ranging from second-degree murder to manslaughter, assault and false imprisonment, and I'm hopeful that she'll get the result that she's seeking, if that’s what the interests of justice determine is warranted. However, I don't believe that the Baltimore officers will be convicted of any murder or manslaughter charges and that this likely result will lead to more civil unrest. According to The Washington Post, in order to secure a guilty finding in Maryland for second degree murder in the death of Freddie Gray, (the “depraved heart” murder), the judge or jury must agree that there is proof beyond a reasonable doubt of three necessary elements for conviction: (1) that the defendant (here the police transport van driver, Officer Caesar Goodson), actually caused Freddie Gray’s death; (2) that Officer Goodson’s conduct itself posed a very high risk to endangering Gray’s life; and (3) that Goodson, aware of the risk he was causing to Gray’s life, acted with extreme disregard of the life endangering consequences of his actions.
To secure a manslaughter conviction, even for involuntary manslaughter, prosecutors must convince a judge or a jury (and these will likely be jury trials), that the officers in Baltimore knew or should have known that their actions were a direct threat to Gray’s life and that what the police did in arresting, subduing and transporting Gray was something they knew was inherently dangerous or that it was done with a reckless disregard for human life.
Prosecutors will face an uphill and arduous battle in securing convictions against these six police officers, even given the current climate of public skepticism, mistrust, and suspicion (and even disdain) of the police that began in earnest in Ferguson last August. For what the police engaged in on April 12 in Baltimore, even in its violence, brutality and senselessness, was nothing if not the routine and mundane activities of the police, particularly in communities of color in cities across the United States. What happened to Gray, we may very well learn from defense counsel in the upcoming trials of the officers, was standard operating procedure (with an unintended, accidental and tragic result), perhaps even in compliance with police policy, as well as tactics and strategies that the officers were trained in, and all in a day’s work in the perilous, violent and dangerous world that the police believe that they toil in selflessly, thanklessly and courageously every day. This is the police narrative, always and already, and one that prosecutors will need to challenge vigorously in order to secure any convictions against the “Baltimore Six.”