The legal saga over the death of 25-year-old Freddie Gray in Baltimore police custody last year is back in court on Thursday. And it's safe to say prosecutors and cops across America are watching.
Gray's death represents one of the few Black Lives Matter cases to actually go to trial since the explosion of the movement in 2013 and 2014. Of course, American cities are plenty familiar with big cash settlements for police misconduct, and Baltimore is no exception: A 2014 investigation by the Baltimore Sun found that the city shelled out almost $6 million over three years in settlements related to excessive police force; last year it agreed to pay $6.4 million to Gray's family alone.
And some cops do get convicted for killing people of color, as Peter Liang—who accidentally shot unarmed 28-year-old Akai Gurley in an NYC project stairwell, but avoided prison—can attest.
But to treat cop misconduct as a crime is still a rarity in America, one with broad implications for criminal justice as voters weigh at least one major-party presidential candidate who seems to think police are under unprecedented attack. And the trial beginning Thursday for Officer Caesar Goodson is widely viewed as State's Attorney Marilyn Mosby's best shot at a conviction.
Pre-trial motions this week excluded a key piece evidence: testimony from another of the six cops facing charges over Gray's death about how he said he couldn't breathe while in Goodson's custody. But a number of Baltimore Police officers seemed to point their fingers firmly at Goodson when testifying in the trial of Officer Edward Nero, who was acquitted last month on four misdemeanor charges relating to the incident. Previous testimony has suggested that Goodson—as the van driver—was the one responsible for Gray's safety in the van.
Goodson is charged with second-degree depraved heart murder, an unusual allegation to say the least. Convicting him on that charge will be a tall order; he's also charged with manslaughter, second-degree assault, two counts of vehicular manslaughter, reckless endangerment and misconduct in office. And things didn't get any easier early Thursday, when Judge Barry Williams skewered Deputy State's Attorney Michael Schatzow for his office's failure to disclose exculpatory evidence to the defense in a hearing before opening arguments. The state apparently did not reveal a conversation with Donta Allen, who was the only other person in the van with Gray that day. The judge expressed serious concern about prosecutors' grasp of what needs to be shared with the defense and what does not.
"My concern here is that if you don't understand that—what else don't you understand?" Williams said. He gave the state's attorney's office until close of court Monday to disclose any further relevant evidence, but denied Goodson's attorneys' request to dismiss the case.
Criminal accountability in police misconduct cases begins with a willingness by public prosecutors, who are typically elected, to take on the cops with whom they collaborate daily to build cases. That dynamic has traditionally limited their ability or willingness to remain objective when it comes to police brutality cases, critics say.
The aggressive charges against not one or two but six officers in the death of Freddie Gray represent an evolution from "a norm in which prosecutors were seen as extremely cozy with police and therefore were enormously reluctant to accuse them," says David Jaros, a University of Baltimore law professor with a focus on defendants' rights. He says their outcome could answer an important question: "Is it political suicide to go after police officers aggressively?"
Goodson's trial follows a mistrial and an acquittal for two other officers charged in the incident, obviously casting some doubt on the state's chances of getting any convictions at all here. Still, University of Maryland law professor Doug Colbert, who's sympathetic to the prosecution, says Mosby was right to bring the cases. "Logically to me it makes sense that charges would follow. It's just that it's a practice that hasn't happened" he tells VICE.
Mosby has delivered what might be the most aggressive, public attempt to take cops to task for allegations of excessive force on duty in recent years. Her decision to indict the officers, announced on the steps of the Baltimore War Memorial days after Gray's death, was met with cheers from protesters calling out for criminal accountability. Naturally, she was promptly accused of rushing to bring politically-motivated charges in an impossible-to-prove case. Defense attorneys for the officers unsuccessfully called for her to be recused from the trial, and she now faces defamation lawsuits brought by three of the six officers.
If bringing the charges in the first place was a remarkable move, a conviction would resonate nationwide.
"If these are cases that can be tried successfully by a prosecutor, hopefully we see other prosecutors stepping up across the country," Jaros says. "A lot will ride on what the long term takeaway of this case is."
But Jaros points out that while Gray's death may be the most aggressively prosecuted, it's not even the most egregious case we've seen in the past year. After all, in Chicago and in South Carolina, two officers are awaiting murder trials for killing young black men whose shooting deaths were caught on camera.
"With the advent of technology and social media there is more demand for transparency and I don't have a problem with that", says Michael Ramos, district attorney in San Bernardino County, California, and president-elect of National District Attorneys Association. But he adds that if a case isn't prosecuted, it's because the facts aren't there. "A lot of times what you see in a video won't tell a full story of what occurred."
Ramos is adamant that prosecutors' close link to the police has no influence over their decision to prosecute an officer, which he concedes is "always a steep hill to climb."
"But I truly believe we (prosecutors) are independent," adds Ramos, who has reviewed over 100 officer involved incidents. "We use our discretion and we take our time to come up with the right result. That is occurring all around the country."
Nonetheless, there have been clear political consequences for politicians perceived as facing off with their cops. In the wake of the death of Eric Garner, officers literally turned their backs on NYC Mayor Bill de Blasio as he eulogized two slain officers at a funeral. (The mayor had previously voiced support for protesters and expressed concern for his biracial son's safety.) Dan Donovan, the Staten Island DA who made the decision not to indict in the Garner case, shortly afterwards ran for a seat in Congress and won easily.
In his bid, he enjoyed the endorsement of two powerful police unions.
But even if Mosby's office fails to achieve a single conviction in these trials, meaningful police reform will not be defined by individual convictions, but by systemic changes, according to Debbie Hines, a former Baltimore prosecutor and legal analyst. She says that to bring on a sea change when it comes to police brutality cases, prosecutors' constituents must continue to use their political power—on the streets and in the voting booth—to demand it.
"Where the value is with the Baltimore case is with communities taking action and showing that these cases should be brought where there is probable cause," Hines tells me. "That's how systemic change has come about in this country."
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