UPDATE 9:43 a.m. Sept. 9
The Baltimore Board of Estimates has unanimously approved a $6.4 million settlement with Freddie Gray’s family.
— Lauren Kirkwood (@lauren_kirkwood) September 9, 2015
The proposed $6.4 million settlement resolving all civil claims stemming from the death of Freddie Gray will have no legal bearing on the criminal cases against six police officers involved in Gray’s arrest.
But some criminal defense lawyers say the settlement, which will be voted on Wednesday morning by the Baltimore Board of Estimates, could still impact the upcoming trial, particularly as attorneys for the officers seek to move the case out of Baltimore.
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“I think that all six police officers have a very persuasive argument that this astronomically high civil settlement award will absolutely impact the court’s ability to impanel a fair and impartial jury,” said Warren S. Alperstein of Alperstein & Diener P.A. in Baltimore. “You will have potential jurors who will acquaint this extraordinarily high civil settlement with a finding of wrongdoing.”
To the average juror or layperson who does not have the legal training to distinguish between the two, Alperstein said, a civil settlement could be taken as an admission of guilt. A juror might also interpret the settlement to mean that each one of the six officers is as guilty as the next, when in reality their charges vary from assault to murder, he said.
“Are jurors going to think, the higher the amount, the more culpable the officers are?” Alperstein said. “I think it can and should have a significant impact on the change of venue motion.”
Baltimore Circuit Judge Barry G. Williams is scheduled to hear arguments Thursday on the joint defense motion to for a change of venue.
Williams last week denied the defendants’ motion to dismiss the case but ruled each officer would be tried individually rather than in groups as prosecutors had desired.
The judge will have to “wrestle with” whether or not there are enough potential jurors in Baltimore who can remain impartial in the case, according to Dominic Iamele.
“I suspect he might say that Baltimore is savvy enough and the people in this city are wise enough and true enough and just enough to render a decision,” said Iamele, of Iamele & Iamele LLP in Baltimore.
‘This was wrong’
A. Dwight Pettit, a Baltimore solo practitioner, agreed, but added he expects attorneys for the officers to weave it into their arguments for the case to be moved.
“If you’re a good defense attorney, you use everything you can, you throw it against the wall and hope something might stick,” Pettit said.
If the case stays in Baltimore, the civil settlement will not be a barrier to a fair trial for the officers, said Iamele, who has represented plaintiffs in 30 police misconduct cases since 1995.
“If the venue is kept in Baltimore, I think the six officers who are facing criminal trials will have maybe a more compassionate group of jurors than if there was no civil settlement,” he said. “I think the jurors will go into the criminal cases knowing that the governance of Baltimore city has made amends. The mayor and City Council have stood up and said, ‘This was wrong, and by virtue of this civil settlement, we’ve tried to make amends for something that is virtually priceless.’”
The office of Mayor Stephanie Rawlings-Blake emphasized Tuesday the settlement “has nothing whatsoever to do with the criminal proceedings” in the Gray case and does not constitute an admission of liability by the city, the Baltimore Police Department or the individual officers.
“This settlement is being proposed solely because it is in the best interest of the city, and avoids costly and protracted litigation that would only make it more difficult for our city to heal and potentially cost taxpayers many millions more in damages,” Rawlings-Blake said in a statement.
But Lt. Gene Ryan, president of the local Fraternal Order of Police, called the city’s decision to settle a “ridiculous reaction” and urged the Board of Estimates to reject the proposal.
“To suggest that there is any reason to settle prior to the adjudication of the pending criminal cases is obscene and without regard to the fiduciary responsibility owed to the taxpaying citizens of the city,” Ryan said in a statement. “… Just as Baltimore is returning to its pre-riot normalcy, this news threatens to interrupt any progress made toward restoring the relationship between the members of the Baltimore Police Department and the Baltimore City government.”
Outlier of ‘outliers’
The Board of Estimates, the city’s spending panel, must approve settlements of more than $25,000, which the Baltimore City Law Department has said account for less than 30 percent of the police misconduct settlements. If approved, the settlement for Gray’s family by itself would be more than the combined $4.5 million the city paid in fiscal years 2012 and 2013 to settle police misconduct cases.
During that same time period, only 13 of 118 cases settled for $100,000 or more, which the Law Department refers to as “outliers.”
The Gray settlement, if approved, also would equal almost a third of the $16.8 million the city paid to settle lawsuits from July 2004 to March 2011.
Even so, Pettit noted the settlement is on par with those in police misconduct cases that have gained similar notoriety across the country, including the 2014 death of Eric Garner in New York after an officer used a chokehold to subdue him.
“It’s consistent with what has been happening on the national level — I’m particularly thinking of the case in New York that just settled for $5.9 million,” Pettit said. “But it’s the exception to the rule in Maryland, because the city has always argued that they were limited by the [state] cap” on the amount of money that people can collect in lawsuits against police.
The Local Government Tort Claims Act limits the statutory cap on damages for victims of governmental misconduct to $200,000 per claimant in state court. There is no cap in federal court.