Additional thoughts about the Freddie Gray case

I have posted my initials thoughts on the criminal charges against six Baltimore police officers. Former federal prosecutor Bill Otis has offered more extensive, and better-informed, observations. Among them are the following, all of which make good sense to me:

Will the mob tolerate an acquittal? The calls in recent days have been for “justice.” I have considerable doubt whether those doing the loudest calling have even a slight interest in justice. I think they want to see policemen and policewomen punished simply because of who they are. If that is true, then the riots we have seen up to now will pale in comparison to the ones we’ll see in the event of an acquittal.

Freddie Gray was alive when he was put in the police van and all but dead when he came out. . . I have not seen any more evidence than anyone else. But the idea that these are merely politically motivated charges doesn’t hold up.

That they are not MERELY politically motivated does not mean that they aren’t in part, perhaps in large part, politically motivated. You cannot have watched the State’s Attorney’s press conference and not be very suspicious of political motivation. She was openly playing to the crowd.

Her behavior was not in my view unethical. A prosecutor is a public official and is allowed to announce official decisions. But her performance was grandstanding, and I view it as somewhere between extremely unfortunate and disgraceful. My impression is that she is too ideological for the job. Probably too young, too.

The coroner apparently ruled this case a homicide. I would like to know how he knows that, as opposed to, for example, accidental death.

I am more than a little suspicious of the speed with which these charges were brought. Is this standard procedure in Baltimore? I don’t know, but you have to wonder.

On the other hand, criminal charges do not require proof beyond a reasonable doubt. They require only probable cause.

A conviction, however, does require proof beyond a reasonable doubt. That is a tough standard, and may be particularly tough in this case, where (at least for the homicide charge) causation seems to me like an uphill climb for the prosecution. See this article describing Prof. John Banzhaf’s doubts about the provability of the homicide charge.

Bill hopes that this matter goes to trial so that the facts can be aired publicly. For what it’s worth (which may not be much since I have never practiced criminal law), I can imagine the prosecutor trying to negotiate plea deals with those who face lesser charges in exchange for their testimony against the other defendants.

If successful, she would then have leverage to obtain deals with other defendants. However, given the demands of the mob, the prosecutor might be hard pressed to offer a deal that the officers facing the most serious charges would be inclined to accept.

The racial dynamics of the plea bargaining process might prove interesting. Reportedly, the officer charged with murder is Black. Would this prosecutor cut deals with White defendants, and take to trial only, or mostly, Black defendants?

I start from the assumption that race won’t enter into the prosecutor’s decisions. But it very likely will enter the mob’s thinking, and the prosecutor has already played to the mob.