Baltimore prosecutor Marilyn Mosby has withheld the autopsy report on Freddie Gray from defense counsel and the public for nearly two months. It is the report on which she relied to file murder and other charges against six police officers, even though the investigation into Mr. Gray’s death was not close to being complete.
Now, just two days before Friday’s court deadline for the state to disclose the report to the defense, it has been leaked to the Baltimore Sun.
The Sun’s story makes it easier to understand why Ms. Mosby wanted the autopsy kept under wraps. It raises additional disturbing questions about her case — a case in which she has already had to dismiss false-imprisonment charges, the untenable nature of which I explained when Mosby filed them.
It turns out that Mr. Gray “tested positive for opiates and cannabinoid.” Moreover, he carried on wildly when initially placed in the police van. It had previously been widely reported that he was not belted into his seat, a violation of recently adopted Baltimore police policy that Mosby dubiously makes the plinth of her case. The Sun’s latest dispatch, however, indicates that Gray was making matters difficult for the police: “yelling and banging, ‘causing the van to rock,’ the autopsy noted.”
The van made several stops during its 45-minute ride. At the second one, six minutes after the arrest, Gray was reportedly “still yelling and shaking the van.” Police thus removed him and placed him in leg restraints — ankle cuffs, to go along with the handcuffs that had already been applied. Gray was “then slid onto the floor of the van, belly down and head first,” according to the autopsy report, which gingerly adds that he was, at that point, “still verbally and physically active.”
It’s now easier to understand why Mosby wanted the autopsy kept under wraps: It raises additional disturbing questions about her case.
It was after this, the medical examiner concluded, that Gray suffered a severe spinal injury (which led to his death, a week later). At some undetermined point during the van’s journey, he was catapulted by the force of its deceleration and crashed into the interior. The injury is likened to a “shallow-water diving accident.”
Significantly, however, the medical examiner, Carol H. Allan, surmised that Gray probably could not have sustained his severe injuries if he’d remained in the prone position the police had put him in.
The Sun report elaborates:
While it’s possible Gray was hurt while lying on the floor and moving back and forth, Allan determined that his body likely couldn’t have moved in that position with enough force to cause his injuries. Allan surmised that Gray could have gotten to his feet using the bench and opposite wall. With his hands and ankles restrained, and unable to see out of the van and anticipate turns, she said, he was at a high risk for an unsupported fall.
Thus, the most likely scenario is that Gray, under the influence of narcotics and in the course of making his transport difficult for the arresting officers, elected on his own to get to his feet despite the difficulty of doing so. Under circumstances where his arms and legs were restrained, Gray’s decision to change the position the police had put him in rendered him vulnerable to the “high-energy” injury he sustained.
This is not to say the police should not have done a better job of securing Gray. But we are not talking here about whether they violated procedure and prudence. We are talking about whether their conduct warrants prosecution for murder and lesser forms of culpable homicide.
The driver of the van, Officer Caesar R. Goodson Jr., is charged with depraved-heart murder in the second degree. In his case, the question is whether he acted with such wanton indifference to Gray’s life that his conduct should be considered just as blameworthy as if he had fully intended to kill Gray. As one Maryland court has instructed:
This highly blameworthy state of mind is not one of mere negligence. It is not merely one even of gross criminal negligence. It involves rather the deliberate perpetration of a knowingly dangerous act with reckless and wanton unconcern and indifference as to whether anyone is harmed or not. The common law treats such a state of mind as just as blameworthy, just as antisocial and, therefore, just as truly murderous as the specific intents to kill and harm.
It is blatant overreach, on the facts spelled out in the autopsy report, to describe Goodson’s conduct as the “depraved heart” equivalent of willfully murdering Freddie Gray.
Also suspect are Mosby’s charges of involuntary manslaughter against Goodson and three other cops — Lieutenant Brian W. Rice, Sergeant Alicia D. White, and Officer William F. Porter. Involuntary manslaughter is the unintentional killing of another by a negligent act, which can include the failure to perform a legal duty.
Obviously, the prosecutor’s claim that Goodson acted negligently contradicts her claim, in the murder charge, that he acted with a degree of depravity functionally equivalent to intentional killing. That aside, Mosby’s manslaughter case hinges on two police omissions: the failures to secure Gray in a seatbelt and to get him sufficiently prompt medical attention.
Gray was arrested at about 8:40 a.m. on April 12, after he’d fled in a high-crime area upon making eye contact with Lieutenant Rice. It was Rice who ordered Goodson to take Gray to the Baltimore Central Booking and Intake Center. It was also at Rice’s direction that the recalcitrant Gray was placed in leg restraints and belly down during the van’s afore-described second stop, shortly after the arrest. To repeat, the autopsy indicates that Gray would not have sustained his fatal injuries if he had remained as Rice had positioned him; nevertheless, Rice is charged with manslaughter.
Police stopped three additional times to monitor Gray during the van ride. Before considering them, it is worth noting that checking on a prisoner repeatedly and attempting (however insufficiently) to assist him are hardly consistent with Mosby’s suggestion that the cops were flippant about his condition.
The medical examiner believes the severe injury — after Gray stood up on his own — occurred sometime after the second but before the fourth stop. On the third stop, Goodson merely eyeballed the back of the van from the outside, taking no further action. A few minutes later, he made the fourth stop, during which he again checked Gray. This time, he called for assistance.
It arrived in the form of Officer Porter. Though he is charged with homicide, this marks Porter’s first appearance in the case: He had no involvement in the arrest, and did not participate in the positioning of Gray prior to Gray’s injury.
The prisoner was apparently lying on the floor, complaining about difficulty breathing and moving. He asked for a doctor, but Porter instead helped him up and seated him on the rear compartment’s bench, enabling Goodson to continue the ride. For that decision, Porter is charged with manslaughter — even though Gray was communicative and able to move with assistance; even though Porter may have concluded (perhaps reasonably, even if incorrectly) that it made more sense to have the van take Gray the short remaining distance to Central Booking, where any necessary help would be available, than to wait for a medic.
It was after this stop that a radio call went out for another arrestee to be picked up nearby. The proof of Goodson’s purported depravity includes his decision to respond to that call, because it necessarily delayed by a few minutes the provision of medical attention to Gray.
That brings us to the final stop, where manslaughter defendant White makes her first appearance in the case. In the course of loading the additional prisoner into the van, Sergeant White and other officers noticed Gray slumped against the bench and appearing “lethargic with minimal responses to direct questions.”
White — who, like Goodson, is black — is apparently charged with manslaughter, despite her dearth of participation in the police interaction with Gray, because she allowed the van to continue the short remaining distance to Central Booking, rather than stopping to summon a medic. The Sun’s account does not tell us whether it would have taken less time for a medic to get to the scene than for the van to meet a medic at Central Booking — much less whether the few minutes lost, if any, would have made any difference at that point. That, in any event, is the sum total of Mosby’s allegation that White caused Gray’s death.
Causation is not a small matter. Prosecutors have to prove it beyond a reasonable doubt in a homicide case. If Gray’s own actions, particularly those in contravention of what the police were trying to get him to do, materially contributed to his severe injury or broke any chain of causation attributable to the police conduct, the homicide case collapses.
Put another way, Ms. Mosby’s case appears to be very thin . . . and that’s before experienced defense lawyers have even begun to pick it apart.
— Andrew C. McCarthy is a policy fellow at the National Review Institute. His latest book is Faithless Execution: Building the Political Case for Obama’s Impeachment.