With third acquittal in Freddie Gray cases, judge continues to reject state’s theories

Lt. Brian Rice (Baltimore Sun via AP)

After three straight acquittals for officers charged in connection with the death of Freddie Gray, there are few theories left for prosecutors to offer that Baltimore City Circuit Judge Barry Williams has not already rejected.

Lt. Brian Rice was acquitted Monday of manslaughter, reckless endangerment and misconduct in office charges, also making him the third officer to be found not guilty in a bench trial in front of Williams.

Prosecutors contended Rice, the highest-ranking officer charged, breached his duty by failing to secure Gray with a seat belt after his arrest. Williams disagreed Monday, finding prosecutors wanted the court to presume Rice was aware of new orders mandating prisoners be seat-belted and that his conduct placed Gray at risk.

“The court’s imaginings do not serve as a substitute for evidence,” he said.

No evidence was presented to show Rice knew he was placing Gray at substantial risk of death or serious bodily injury, Williams added. And even if there were such evidence, the judge ruled there was no proof Rice consciously disregarded the risk, all requirements for a conviction for involuntary manslaughter or reckless endangerment.

“The bottom line is the state has exhausted every conceivable theory of prosecution and now the question has to be asked, at what point does the state cut its losses and stop the prosecutions,” said Warren S. Alperstein, a former city prosecutor who has observed all of the trials.

David Jaros, a professor at University of Baltimore School of Law and another trial observer, said prosecutors just did not have the evidence to convince Williams.

“I think that this case was ultimately determined by what evidence there was rather than any strategic decisions or mistakes made by the attorneys,” he said.

Officer Edward Nero, one of the arresting officers, was acquitted in May. Prosecutors accused him of assault and misconduct for conducting an illegal arrest of Gray as well as reckless endangerment and misconduct for failing to use a seat belt.

Officer Caesar Goodson, the driver of the police transport van charged with depraved heart murder as well as manslaughter, assault, reckless endangerment and misconduct in office, was acquitted last month.

Rejected theories

As with his ruling in the Goodson trial, Williams announced Monday the state’s theory of reckless endangerment does not fall within the parameters of the statute, which expressly excludes conduct arising from the use of a motor vehicle.

“In order for the defendant’s failure to seat belt Mr. Gray to rise to the level of reckless conduct and create a risk of death or serious physical injury, there has to be some use and movement of the vehicle,” Williams said. “The simple placement of a person in a vehicle that is not used, without seat-belting him, cannot and does not constitute a crime.”

Alperstein, of Alperstein & Diener P.A. in Baltimore, said the state cannot continue prosecuting officers under this theory, which has been criticized by defense attorneys in motions for months.

“I do not see how [the defendants] can ever be convicted of this crime given today’s verdict,” he said.

Williams has also continued to reject claims that failing to seat belt Gray rose to the level of misconduct in office, which has been an argument in every officer’s trial.

Alperstein said a lack of evidence that the officers harbored any ill will toward Gray has been a stumbling block for proving misconduct in office.

“I have felt that the misconduct charge has always been the most difficult to prove because the crime requires evil motive and willful and malicious intent,” he said.

Cost-benefit analysis

Despite failing to secure a conviction through four trials — Officer William Porter’s case ended in a mistrial in December — prosecutors may have provided a benefit to the city, though continued pursuit of a guilty verdict may do more harm than good, according to Jaros.

“I think that [State’s Attorney Marilyn J. Mosby] has to step back and reassess the benefits of trying to pursue the final three cases,” he said. “That being said, the value of a prosecution need not necessarily be measured by whether or not it results in a conviction.”

Over the last year, for example, conversations about the need to improve the relationship between police and citizens have moved to center stage in addition to policy changes and the rollout of body cameras.

“It’s not a concession that the early cases lacked value to decide not to pursue additional cases,” Jaros said. “We may have gotten what we can get.”

Alperstein agreed, noting additional reforms that are likely once the Department of Justice makes its recommendations following an investigation into the Baltimore Police Department.

“There are many that would argue justice has been served even though the state has failed to secure convictions in any of the four officers’ cases to date,” he said.

The cases have also put a spotlight on discovery issues that defense attorneys face daily in Baltimore courts, with Williams taking “a clear jab” at the state Monday for failing to disclose thousands of pages of training records for Rice once he left the police academy until the eve of trial, according to Alperstein.

Prosecutors have been admonished several times for discovery violations throughout the trials.

“The criminal justice system may be better for these cases having been brought,” Jaros said. “But that does not mean the criminal justice system will continue to be improved” if the remaining officers are tried.

Officer Garrett Miller is the next defendant scheduled for trial, beginning July 27. Pretrial motions have not yet been scheduled.