The Freddie Gray Case: A Prosecutor’s Analysis of the Investigation, Charges, and Acquittals

By: Robert A. Bianchi, Esq. / The Bianchi Law Group

The Fatal Arrest and Systemic Failures in Baltimore

The Freddie Gray case, involving his death while in Baltimore police custody, drew significant national attention. As a former New Jersey Morris County Prosecutor, any incident resulting in a death by the police was immediately taken over by my agency to eliminate the appearance of impropriety and ensure a collaborative, multi-disciplinary investigation.

My first concern with the Baltimore investigation was the police agency investigating itself in a police fatality case, which inherently carries an appearance of impropriety.

Key Investigative Flaws

From the outset, the investigation had irreversible flaws that made the prosecution’s case very difficult:

• Lost Video Evidence: The police may have missed an opportunity to gather key video surveillance from stores or other facilities that would have captured critical parts of the events. Securing video evidence from a neighborhood canvas of the potential crime scene is “Investigation 101” and should be the first order of business, but by the time police moved to secure the videos, they were overwritten.
• Lack of Transport Cameras: It is amazing that in this day and age, the police transport vans did not have cameras to document these rides. This is a basic tool that typically protects the police from excessive force or civil suits. Not having them in the vans is a reckless standard that may indicate other “best practices” the Baltimore Police Department is not following.

The Troubling Facts of Custody

What was known immediately were significant violations of department policy and basic training practices:

• Mr. Gray was unbelted or unsecured in the transport van, which is a violation of department safety protocols designed to avoid serious injury and/or death.
• The police failed to get Mr. Gray medical attention immediately, waiting close to an hour after a medical event to get him to a hospital after he complained of a medical issue. By the time he got to the hospital, it was over an hour later, which the Commissioner himself admitted was unacceptable.
• Mr. Gray’s spine was allegedly 80% detached, and numerous vertebrae were broken. It is assumed by some that he may have been subjected to a “rough ride”—a term suggesting the police made purposeful and unnecessary sudden stops and sharp turns to throw the restrained and helpless prisoner around the transport van.

Legal Implications of Officer Conduct

Under the law, various crimes are implicated by these actions and inactions:

• Official Misconduct: Applicable if the officers failed to perform a duty required by law (e.g., failing to secure him).
• Manslaughter: Applicable if it is proven that they acted recklessly, which essentially means they “disregarded a known risk with a high probability that it could cause death, or serious bodily injury resulting in death.” Not seat belting a prisoner and/or not addressing medical issues when trained to do so could be seen as a “conscious disregard” of a known risk.
• Murder/Felony Murder: May be applicable if it is determined that the police intentionally did this to harm him, even if death was not the intended object of their actions. If it is determined that there was a “rough ride,” expect at least a manslaughter charge, but the problems for the police will only escalate.

As a former homicide prosecutor and Certified Criminal Trial Attorney, I believe that at a minimum the police were extremely reckless not securing or providing medical treatment to Mr. Gray.

The Prosecutor’s Conduct and Trial Failures

My biggest concern throughout the case was how it was handled by the Baltimore prosecutor, Marilyn Mosby. I feel that she was not only inept but that she set back the criminal justice system’s respectability based on obvious flaws in the case itself, as well as her political grandstanding in the media, which I believe was unethical.

A Rushed and Flawed Charging Decision

The decision to charge the officers was announced only 19 days after Mr. Gray’s death, and only after receiving a preliminary investigation report the day before and the autopsy report that day. This spoke to me of a pre-determined and rushed decision. This timeframe is nearly impossible for a thorough investigation that ensures success at trial.

• Skipping the Grand Jury: Any prosecutor of skill knows that in a case like this, use of the Grand Jury is a must to properly investigate a case, allowing for subpoena power, the ability to compel witnesses, and to develop a stronger case. By directly charging the defendants, she lost critical investigative powers.
• Lack of Homicide Proof: The prosecutor admitted at her press conference that she did not know how, when, or who caused the injuries to Mr. Gray—an essential element to prove any homicide case.
• Misinterpreting the Autopsy: The prosecutor relied heavily on the finding that the death was a “homicide.” This only means the death was not natural, suicide, or by accident; it is not a legal conclusion of criminal guilt whatsoever. To get an autopsy the same day charges were filed was just window dressing, not a deliberate attempt to “get it right.”
• Overcharging: The case was overcharged, meaning she filed charges that she would not be able to prove beyond a reasonable doubt. When there is a not guilty verdict on those charges, people claim there is no “justice,” but the injustice was charging defendants with crimes the prosecution couldn’t prove.

Unethical Public Commentary

Mosby’s press conference, where she announced the charges, included statements that were completely inappropriate and perhaps the most unethical comments I have ever heard uttered by a prosecutor. Prosecutors are under very strict ethical rules to protect a defendant’s right to a fair trial.

• Political Grandstanding: Her speech was wrought with political overtones, which is an ethical violation. She admitted she was listening to the “voices” of demonstrators “across the nation.” A prosecutor is only to look at the law and facts without being persuaded by public opinion.
• Depriving Fair Trial: Her public commentary was designed to improve her personal advancement and “convict” the officers in the court of public opinion. Police officers, as criminal defendants, do not lose the right to a fair trial guaranteed to all citizens. Mosby’s actions gave the defense a lot of legal arguments to dismiss the case for “prosecutorial misconduct” and change of venue.

The Not Guilty Verdicts

The not guilty verdict of Officer Nero, and others that followed, was highly predictable given the flaws in the investigation and the rush to charge the officers. Mosby’s incompetence and failure to win cases in a court of law, despite her media presence, proved detrimental to the case.

It is ironic that after losing two cases, Mosby suddenly found it worthy of following the court’s mandate not to speak about the case outside of the courtroom. It is easy to look like a hero before a defendant has a chance at testing the evidence; it is not so easy to speak to the media when you are losing at every turn thereafter.

Final Thoughts

The death of Mr. Gray was a tragedy that warranted a careful and diligent review of the police officers’ actions. However, these police officers, as criminal defendants, were entitled to a process that is fair, unbiased, not prejudiced, and done in accordance with due process and the Rules of Professional Responsibility for Prosecutors.

Mosby was thinking about votes (or some other inappropriate factor), and not the integrity of the judicial process. Trust me on this, she will be made to answer for her ill-advised actions down the road.

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