Freddie Gray autopsy report raises problems for prosecution

The Baltimore Sun says it has obtained a copy of the autopsy report in the Freddie Gray case. The Sun hasn’t published the report but presents a summary of it here.

If the Sun’s description is accurate, the report will likely hurt, perhaps fatally, the prosecution’s case at least with respect to its most serious charges.

Before getting into specifics, let me observe that, as described by the Sun, the autopsy report is couched in tentative language on key matters. For example, the report finds that the injury to Gray’s neck and spine was “most likely caused” when the police van in which he was riding suddenly decelerated. It also finds that while it’s possible Gray was hurt while lying on the floor and moving back and forth, his body “likely” couldn’t have moved in that position with enough force to cause his injuries.

It may be difficult for the prosecution to prove key elements of her case beyond a reasonable doubt given a report like this. Proving “likelihood” shouldn’t be good enough.

But as described by the Sun, the autopsy report presents a more fundamental problem for Marilyn Mosby: the facts it finds to be “likely” seem at odds with some of her major charges.

The officers who arrested Freddie Gray placed him into their van on his stomach. Gray was handcuffed and shackled. As noted, the autopsy report finds it likely that Gray got to his feet and sustained the fatal injury when the van suddenly decelerated, causing him to bang the lower part of the back of his head.

The driver of the van, Caesar Goodson, Jr., is charged with second-degree “depraved-heart” murder. The charge seems to be predicated on the the idea that Goodson decelerated the van with a depraved heart, i.e., with a an awareness that it created “a very high risk” to Gray’s life and with an “extreme disregard of the life-endangering consequences.”

There are many good reasons why a driver might decelerate a van. But even in the absence of a good reason, if Goodson believed that Gray was shackled and lying on his stomach, could his deceleration of the van have manifested an extreme disregard for Gray’s life? I wouldn’t think so. The likelihood of a deceleration killing someone who is lying down in the back of a van seems almost nil.

The autopsy report finds that Gray probably got to his feet. Even if Goodson knew this, it’s hard to see how his deceleration of the van manifested extreme disregard for Gray’s life. But did Goodson even know that Gray was standing? If not, the charge of second-degree depraved heart murder may be untenable.

The manslaughter charges don’t require a showing of extreme disregard for Gray’s life, but they do require gross or criminal negligence. This means the defendant was aware, or in the case of criminal negligence should have been aware, of the risk to human life that his behavior created but disregarded it.

Given the difficulty of foreseeing (1) that Gray would rise to his feet, (2) that the van would suddenly decelerate (of the defendants, only Goodson might have foreseen this), (3) that Gray would then sustain a head injury, and (4) that the head injury would prove fatal, I don’t believe the standard for gross or criminal negligence is satisfied. This seems more like ordinary negligence.

I hasten to add that I’m neither a criminal lawyer nor an expert in this area. In addition, as noted above, the autopsy report hasn’t been published; I’m relying on a summary of it by the Baltimore Sun.

Even so, I think it’s fair to suggest that the murder charge against Goodson may be in serious trouble, and that the various manslaughter charges seem none too strong. And we’ve already written about the problematic nature of the charges pertaining to the arrest of Gray (as opposed to his death).

There is still the question of whether the police handled Gray properly after they saw (or should have seen) that he sustained the injury that killed him (note, though, that the autopsy report apparently can’t say definitely when that was). But overall, it looks like much of the prosecutor’s case may be unraveling.

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