Swinging for the Fences: Thinking Through the Baltimore Criminal Charges
Over the weekend, noted Harvard Law professor and criminal defense attorney Alan Dershowitz made headlines attacking Baltimore prosecutor Marilyn Mosby for allegedly overcharging the Baltimore police officers blamed for Freddie Gray's death and for placing "politics and crowd control" over the interests of justice. Here's the core of Dershowitz's argument:
"I understand why the mayor and state attorney want to prevent riots . . . but that's not the job of the justice system . . . You cannot allow police officers or any other defendants to become scapegoats for crowds demanding a continuation of rioting . . There's no plausible, hypothetical, conceivable case for murder under the facts that we now know them. You might say that conceivably there's a case for manslaughter. Nobody wanted this guy to die, nobody set out to kill him, and nobody intentionally murdered him."
"The worst-case scenario is a case for involuntary manslaughter or some kind of reckless disregard, but the idea of without further investigation coming down with murder indictments . . . This is a show trial. This is designed to please the crowd. It's designed to lower the temperature."
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I was one of Professor Dershowitz's students and have followed his career ever since. Without question, he's one of America's most formidable criminal defense attorneys, and prosecutors dismiss his thoughts at their peril. My own read of the prosecution's claims raises some of the same concerns. In rushing to file charges, the prosecution may have created for itself a tough, over-charged case — potentially imposing an injustice on the officers and risking even greater conflagrations if the prosecution over-promises but under-delivers. The prosecution bases its case on three key allegations: (1) the arrest itself was improper; (2) Gray was placed at irresponsible and illegal risk when he was shackled hand and feet without a seatbelt in the van, and (3) the officers failed to render or secure timely medical aid.
This narrative is subject to attack on multiple points — both legal and factual — and it's easy to imagine a defense that questions every single factual assertion from the prosecution, supplemented with evidence showing — for example — that arrests like Mr. Gray's are common and proper and that requests for medical assistance following arrest represent a common method for suspects to attempt to avoid or delay trips to the police station. In a recent episode of This American Life, Milwaukee police chief Ed Flynn discussed this reality with reporter Brian Reed in response to a similar incident where a Milwaukee man died in police custody, and police were late in rendering aid:
Ed Flynn: You know, in hindsight, one recognizes it's difficult to explain the universe of police officers in crisis situations and how often an average officer encounters an arrested suspect who doesn't want to go to jail and wants to go to the hospital.
Brian Reed: That specific scenario happens a lot? Ed Flynn: Exactly. I can't breathe, I have something wrong with me, I have a pain. And after a while, it becomes just part of the noise of making an arrest and officer's get a little inured to it. Now, that's not something the public wants to hear the police chief try to explain when a young man just dropped dead in the back of a car, and so the lesson that was clear to us is if you say you can't breathe, OK, we're calling an ambulance.
Brian Reed: You changed the policy?
Ed Flynn: We changed the policy. We made it mandatory. We probably tripled the number of ambulance runs for people under arrest going to jail, but we removed the officers' need to make a judgment.
To my mind, the most damaging assertion against the police is the claim that Mr. Gray was unrestrained by a seat belt, shackled hand and feet, and placed facedown, headfirst in the van. In that position he would be vulnerable to even one hard stop. The police may challenge these facts or they may try to argue that in their judgment that position was the best position given Mr. Gray's previous "flailing," but if their conduct did, in fact, defy department policy, even the best defense will be difficult indeed.
At the same time, however, it's unlikely that the prosecution will secure convictions against all defendants, on all counts. Police defendants are among the most challenging for prosecutors to convict, and Mosby certainly swung for the fences in seeking six convictions, including a murder conviction. We won't know for months or perhaps years whether she acted justly or whether Professor Dershowitz is right, and she traded justice for short-term peace and political acclaim.
This column originally appearing in National Review.
