Today, I had the honor of discussing the Freddie Gray case (Baltimore Police Death case) on ‘America’s News HQ’ with Heather Hansen (guest) and host Martha MacCallum.

We have previously commented and blogged on this case before from other national media appearances. In this segment, I again express my dissatisfaction on this, or any, police agency investigating itself in a police fatality case.

As the former New Jersey Morris County Prosecutor, any incident which resulted in a death by the police was immediately taken over by my agency, so that there was no appearance of impropriety, and to ensure a team of detectives and Assistant Prosecutors was able to better collaborate on the investigation from a multiple discipline point of view.

This aside, from the investigation standpoint, I believe the police commissioner is doing an excellent job otherwise, but his investigation already has irreversible flaws.

First, they may have missed an opportunity to gather key video surveillance that existed at stores or other facilities that would have captured critical parts of the events of this situation. Unfortunately, by the time the police thought to secure the videos, they were overwritten due to the time it took to attempt to retrieve them. This is concerning as securing video evidence from a neighborhood canvas of the potential crime scene is Investigation 101 and should be the first order of business.

Second, I am still amazed that in this day and age, that 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 suits, or civil suits. To not have them in the vans is a reckless standard that may very well be an indication of other “best practices” the Baltimore Police Department is not following.

The lack of these basic and crucial pieces of evidence will make the prosecution’s case very difficult. We already know Freddie Gray was unbelted (an admitted violation of safety protocols of the police). We also already have admissions that he complained of a medical issue that was not immediately addressed. By the time he got to the hospital, it was over an hour later. This is admittedly unacceptable, as per the Commissioner himself.

Legally, criminal prosecution can occur if a person acts recklessly and it causes serious bodily injury or death. Recklessly, more or less, is a “conscious disregard” of a known risk.

Here the police are well trained that not seat belting a prisoner and/or not addressing medical issues can result in death or serious bodily injury. This could merely be negligence (hence a definite civil suit). But, if it is determined that there was a “conscious disregard” or worst yet, that it was a “rough ride” (a tactic where a restrained and vulnerable prisoner is subjected to sharp twists and turns, and stop and go maneuvers by the driver of the van), expect at least a manslaughter charge from this investigation.

As a former head County Prosecutor in New Jersey that has handled and tried numerous New Jersey Murder/manslaughter cases, the prosecution will be looking carefully to see if the conduct of the officers evidences a “conscious disregard,” or worse, a purposeful attempt to injure Mr. Gray.

Hopefully, the investigation from this point is better than it was at the outset where valuable and significant evidence was forever lost.