Mimesis Law
15 September 2019

Speeding Through Baltimore: The First Freddie Gray Trial Begins

Dec. 1, 2015 (Mimesis Law) — On Monday, jury selection began in the trial of Baltimore Police Officer William G. Porter for his involvement in the death of Freddie Gray.  The trial is beginning less than eight months after Gray’s death in April, while in police custody.  Porter, who is charged with involuntary manslaughter, second-degree assault, misconduct in office and reckless endangerment, is the first of six officers charged in Gray’s death to go on trial.

Some in the defense bar are not happy with the “preferential” treatment being received by Baltimore police officers.  In Sunday’s New York Times, Todd Oppenheim, a Baltimore public defender, wrote an editorial that noted the disparity between how the Gray officers were being treated in comparison to his own clients.  One of those disparities listed focused on how quickly the cases were being taken to trial.

Few defendants in the overburdened [Baltimore] Circuit Court have a guaranteed trial date, even those waiting in jail.  But because the Freddie Gray officers [who are all out on bail] have received preferential treatment, in that they have been specially assigned a judge, their court dates hold true.

Oppenheim makes a very valid point in saying that the way the officers’ cases are being handled is the way that all cases should be handled.  The only reason that he feels a sense of unfairness is because the officers seem to be the only ones enjoying the benefit of being handled fairly.

The irony is that a lack of fairness in the criminal justice system is part of what Baltimore’s unrest is about.  All cases affect our community, not just those featured on CNN.  Either we should treat everyone like officers (justly) or treat the officers like everyone else (unjustly).

Everyone should be afforded the same protections offered to the Freddie Gray officers.  All cases should proceed like theirs.  But they don’t.

Of course, he is correct, but that is the unfortunate reality.  The idea of the criminal justice system being overburdened and understaffed is not something unique to Baltimore, nor any big city, for that matter.  A judge, a prosecutor, and a defense attorney can only be in trial in one place at a time, and there is a never-ending line of cases that need to go to trial.  Although it would be ideal if the oldest pending case (where the accused is in custody) was always mandated to go to trial first, that just isn’t the reality.  Other factors come into play.

Although the 6th Amendment guarantees the right to a speedy trial, the State of Maryland seems to have really pushed the pedal to the metal in getting these cases underway.  Gray was injured at some point after being arrested on April 12th and he died of those injuries on April 19th.  By May 1st, Baltimore City’s State’s Attorney Marilyn Mosby had already filed charges on Porter and his five co-defendants.  All six officers were all indicted on May 21st.

Considering that many of those charged with low level drug offenses can’t get indicted have their cases heard by a Grand Jury in under three weeks, it is shocking that a police involved homicide with multiple co-defendants could sail through the System so smoothly.  While there is certainly a public interest in determining the fate of the officers in a timely fashion, moving too quickly through the courts creates a substantial risk of injustice for the officers accused, Freddie Gray, and the people of Baltimore.

Some of the factors that have accelerated these cases are noble ones.  Marilyn Mosby’s decision to take the cases into grand jury like any other criminal case was a smart move.  In doing so, she avoided allowing the grand jury to become a mini-trial on guilt or innocence, which is what happened in Ferguson, Missouri and appears to now be happening in Cleveland with the Tamir Rice case.  The normal task of a Grand Jury is to determine whether or not there is enough probable cause to merit having a trial on the evidence.  This normally involves a very minimal presentation of the preliminary facts but as Scott Greenfield notes, this changes when the accused is a police officer.

Mosby avoided dueling experts and multiple eyewitnesses providing their testimony to the grand jury in favor of what must have been a simple statement of probable cause.  That is how the vast majority of criminal cases are handled by a prosecutor, and she did the right thing by treating these cases no differently.

A more ambiguous motive in rushing the officers’ cases through grand jury is crowd control.  In the wake of Freddie Gray’s death, riots were breaking out around Baltimore.  The swift action in filing charges on the officers helped calm the anger of those outraged by the alleged police misconduct.  That’s a smart move for quelling a riot, but it is a terrible reason to rush a case through the criminal justice system.  Arresting and indicting police officers to satisfy angry citizens is, literally, succumbing to “mob justice.”

Trying the case so quickly on the heels of Gray’s death and the subsequent riots has a chance of capturing the outrage of the riots and putting it on a jury.  That is something that will most definitely benefit the prosecution at trial, and gives the defense a strong argument for a change of venue.

The prosecution also has logistical benefits to trying the Freddie Gray Officers at a more expedited pace.  Prosecutors tend to dread trying multiple co-defendants in cases that are tried separately.  Not only is the experience of trying the same set of facts in multiple trials a tedious endeavor, it is also one that creates evidentiary problems.  The same witnesses are called to the stand multiple times to recite the same set of facts.  Any inconsistencies or omissions are written into the record and can serve as fodder for the Defense.  The earlier the case is tried, the better for the witnesses’ memories.

Furthermore, the prosecution also has the benefit of a potential domino effect depending on what happens in the first trial.  If things go poorly for William Porter, his co-defendants may find themselves more eager to enter into a plea bargain.  Getting the first case underway is the fastest way to make this occur.

While Oppenheim is certainly right to complain about the police officers receiving trial dates faster than his clients, there is one argument that necessitates the Freddie Gray officers moving to the front of the trial line.  In almost every criminal trial, a police officer testifies.  From the smallest of thefts to the most serious of murders, a man or woman carrying a badge will take the stand and testify on behalf of the prosecution in trial.  As long as the Gray officers’ cases are pending, the relationship between the police and the citizens of Baltimore remains in limbo.

How the members of the community who serve on the juries regard police witnesses will be absolutely critical, and the longer the Gray officers have their cases pending, the longer that ambiguity continues.  The State’s Attorneys want to show that the justice system is fair to all members of Baltimore, and getting a conviction on Freddie Gray’s death will go a long way to re-establishing that credibility with jurors.

There are many reasons to rush the Freddie Gray officers to trial, but seemingly all of them work to the prosecution’s benefit. Despite the advantages that the prosecution has in this particular battle between the police and the citizens, it is far from guaranteed that any of the officers will be held accountable.  Remember, they’re still the police.

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