by Tom Nolan, Associate Professor of Criminology, Merrimack College; 27-year veteran of the Boston Police Department
Baltimore State’s Attorney Marilyn Mosby recently announced that her office would drop criminal charges against the three remaining Baltimore city police officers who were implicated in the death of Freddie Gray in April of 2015. Mosby’s office had initially charged six Baltimore officers in Gray’s death; three had been acquitted and the trial of one other officer ended when the jury failed to reach a verdict. I had commended Mosby for her courage and decisiveness in bringing the charges against the officers last May, just as I will commend her courage and decisiveness this week in deciding not to proceed criminally against the three remaining police officers who had faced charges in Gray’s death.
Mosby was in the unenviable and ultimately untenable position of seeking justice for Freddie Gray and for those residents of communities of color in Baltimore who have borne the brunt of the Baltimore police juggernaut. In choosing to charge the Baltimore police officers criminally, Mosby was also, albeit indirectly, seeking justice for other African American men and women who had died at the hands of the police: in Cleveland; Chicago; Mt. Pleasant and Staten Island, NY; North Charleston, South Carolina; Hayward, California; Waller County, Texas, Washington, DC, and too many other locations in the United States.
In May of 2015, when the officers were charged in Gray’s death, I expressed reservations regarding the likelihood of the officers being found guilty of any of the more serious charges, including “depraved heart” murder. The challenges facing prosecutors in convicting on-duty police officers criminally in the deaths of individuals in their custody are formidable, and in the cases involving the “Baltimore Six,” insurmountable.
I asked at the time: “Will Baltimore and Freddie Gray see justice?” And I expressed skepticism that justice would be the result for Baltimore or for Freddie Gray. What has been on prominent display in the fifteen months since Gray’s death and the Baltimore officers being charged criminally is the criminal justice system, a system where justice is too often elusive and too frequently aspirational, particularly when the victims are men and women of color and the defendants are law enforcement officers.
According to The Baltimore Sun, Mosby “wanted to be able to expose the systemic issues” that are endemic to the criminal justice system in the United States, a system that is seen by many as a duality: one in which “justice” is a predictable and readily available commodity for someone like me (white, privileged and with a background in law enforcement), yet coexisting in an alternative universe where “justice” is just as predictably unattainable, haphazard, inconsistent or nonexistent for those less privileged and non-white. In this Mosby has arguably achieved a just end, one that saw the interests of justice necessitate a dismissal of criminal charges that were not sustainable in a flawed and unjust system that insured no other possible outcome. Exposure of the vagaries of the system is, in that sense, just.
Let’s not lose sight of the fact that the Maryland State Medical Examiner’s Office declared Gray’s death a homicide in its autopsy report, a death caused by the Baltimore police officers who took Gray into custody after he ran away from them. Had Gray lived, the Baltimore officers were no doubt prepared to charge him with a trumped-up weapons offense, a resisting arrest charge, and probably a “disturbing the peace” or “disorderly person” charge for good measure. This was no accidental death; the medical examiner ruled that Baltimore police officers caused Gray’s death through “acts of omission,” meaning that the officers failed to follow basic safety protocols as well as the department’s rules and procedures, (which officers claimed that they were unaware of because they never read them).
And Mosby’s decision not to proceed criminally against the three remaining officers who had been facing trial is by no means a vindication of these officers’ responsibility in the death of Freddie Gray, no more a vindication in Gray’s death than the acquittal of the first three Baltimore officers who were tried before Baltimore Circuit Judge Barry Williams.
The failure of prosecutors in Baltimore to obtain convictions against the six Baltimore police officers implicated in the death of Freddie Gray only partially mitigates their culpability in Gray’s homicide. The Department of Justice is investigating the Baltimore police department for potential civil rights and “pattern and practice” violations. Baltimore police officers, acting willfully and “under color of law,” may still be prosecuted federally under 18 U.S.C. Sec. 242, and the U.S. Attorney will hardly be reliant on the Baltimore police department to conduct a civil rights investigation where the suspects are Baltimore police officers.
In a news conference at Gilmor Homes in Baltimore, Mosby said “What we realized very early in this case was that police investigating police, whether they’re friends or merely their colleagues, was problematic.” A “reluctance and obvious bias was consistently exemplified” by Baltimore police investigators assigned to investigate Gray’s death.
With Baltimore cops investigating their own, the prosecutions of the “Baltimore Six” was doomed from the start. This “cop investigating cop” policy has been a deeply flawed internal investigative model for decades, yet inexplicably it continues to be the norm, hampering, thwarting, and derailing investigations such as the one conducted in the death of Freddie Gray. Yet, these vexing obstacles notwithstanding, Mosby sought justice for Freddie Gray and for Baltimore. I’m not sure that faced with the same situation I would be possessed of the courage that she so clearly demonstrated.