More Legal Experts Agree – Autopsy Hurts Baltimore Prosecutor's Freddie Gray Homicide Case

WASHINGTON - June 28, 2015 - PRLog -- WASHINGTON, D.C. (June 28,  2015): When the medical report on Freddie Gray’s death was released, public interest law professor noted that its conclusions as well as its choice of words would make it more difficult for State’s Attorney Marilyn Mosby to win homicide cases against the police officers charged.

        Banzhaf's analysis and correct predictions in high profile homicide cases go back to the NYC subway shooter, and include more recently the Zimmerman Florida self defense case, the Ferguson police shooting death, the Staten Island police choking death, and many others.

        Now, the liberal Washington Post - which claimed in an editorial that “A city’s trust [was] severed in Baltimore” - has finally been forced to admit that the prosecutor’s homicide case is shaky, and that the medical examiner’s report has further seriously undermined it, notes Banzhaf.

        The Post acknowledged that the case is based upon a “complicated concept: homicide ‘through acts of omission,’” and that “the autopsy report will be key.”  It noted that: “several legal experts and pathologists said that based on what they read, they would have ruled Gray’s death accidental or undetermined because of the complexities and subjective nature of a case of homicide by omission.”

        The Post also said that “Legal experts said the challenge for prosecutors will be convincing a jury that each officer bears some responsibility in the death,” and quoted several expressing doubts about the viability of the criminal case in light of the report.

        For example,  José F. Anderson, a professor at the University of Baltimore School of Law, pointed out that “Homicide by omission is a difficult legal theory in the criminal law. . .   The real questions are going to be how can they pinpoint when the traumatic injury occurred or when [Gray] might have called out for help and for how long those cries were ignored.”

        Likewise, Professor Banzhaf had earlier pointed out, when the charges were first announced, that a key problem would be the legal issue called “causation.”  How can anyone prove “beyond any reasonable doubt” exactly how and when the fatal injury occurred, and, furthermore,  how can any medical expert testify “to a reasonable medical certainty” that Gray would be alive today if only Officer X had not failed to take step Y (e.g., called for an ambulance at one of the many van stops).

        The Post also reported that “several legal experts interviewed said that it might be most challenging for prosecutors to prove the charge of second-degree murder, and they questioned the medical examiner’s report for being far from decisive. The medical examiner used phrases such as death 'most likely caused' and 'it is possible the neck injury occurred.'”

        It continued: “William C. Brennan, a Maryland defense lawyer, said the biggest challenge for the state will be to prove the second-degree depraved-heart murder charge. According to jury instructions, prosecutors must convince a judge or jury that the driver of the van not only caused Gray’s death but also ‘created a very high degree of risk’ to Gray’s life and, knowing that risk, ‘acted with extreme disregard of the life-endangering consequences.' 'It’s really stretching it and taking it too far based on these facts,' Brennan said of the murder charge.” This echoed another concern pointed out by Banzhaf, who noted that the language used in the report was inconsistent with the standards for homicide.

        In his original analysis, Banzhaf also pointed out another key factor from the report:

        In strongly suggesting that Gray may have caused his own injury and subsequent death by standing up in a swaying van while his hands were bound behind him and his two feet were shacked together, the report adds a major complication to any prosecution for at least two major reasons, says Banzhaf.

        First, it suggests that Gray, who reportedly has opiates and cannabinoid in his system, may have been the major cause of his own death since, the report concluded, he probably could not have suffered his fatal single "high energy injury" unless he was standing up at the time.

        Second, although the medical examiner indicated that some injury to an unbelted prisoner was not an "unforeseen event," it was unlikely to cause such a devastating injury, he wrote,  and that foreseeable risk was only to a prisoner sitting on a smooth bench, not one standing up in a swaying van.

        That a prisoner bound hand and foot would attempt to stand up in a moving unstable vehicle is certainly not as foreseeable, and could well have occurred only because Gray had illegal drugs in his system at the time, suggests Banzhaf, a key point jurors are not likely to overlook.

        In any event, the report says that a prisoner who was not belted in being injured by the movement of the transport van is not an "unforeseen event" - language which indicates only negligence and not the "depraved heart" or the reckless disregard of clear danger which is required for a murder conviction.

        Similarly, in writing that it was "not an unforeseen event   . . that without prompt medical attention, the injury would prove fatal," the medical examiner uses language far short of that required for a homicide conviction - that, beyond any reasonable doubt, prompt medical attention would have prevented Gray's death.  Can that be testified to with reasonable medical certainty at trial?, Banzhaf asks.

        To the extent that the prosecutor tries to present any theory of events which is different from that in the report, reasonable doubt is automatically created, says Banzhaf, because jurors can see that it is at least possible that events could have unfolded as the examiner concluded.

        Also, if the examiner was only willing to go so far as to say that death from delay of “prompt medical attention” would not be “an unforseen event,” it would be an uphill battle to prove that denial of prompt medical attention was “beyond any reasonable doubt” the cause of Gray’s ultimate death.

        Finally, the report concludes that there was wrongdoing from the mere violation of a rule which requires the use of seat belts.  But the mere violation of a police rule seldom raises to the level of a criminal offense, notes Banzhaf, especially since many police departments do not require belting prisoners.