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Follow on Google News | Baltimore Police Overcharged in Gray Death, Some Charges Likely to be DismissedLegal Problems of Causation and Divided Responsibility Could Torpedo Prosecution
To convict someone of second degree murder or many of the other homicide charges, it is not enough to simply show that the officers acted improperly (e.g., failing to use a seat belt) or even criminally (e.g., making an illegal arrest). In addition, it must be proven beyond any reasonable doubt that each such action or inaction was in fact a direct cause or a major factor in the death. Since the statement of probable cause read by Baltimore lead prosecutor Marilyn J. Mosby did not include any explanation of exactly how or when the fatal injury occurred, it may be difficult to establish that any of the alleged wrongful acts or omissions was in fact the cause of the death. In other words, prosecutors may not be able to establish beyond any reasonable doubt that the injury would not have occurred if he had been seat belted after the third, fourth, etc. stop, or that rendering medical assistance at any particular stop would have definitely prevented the death from occurring. It is reasonably clear, says Banzhaf, that had Freddie Gray not been arrested in the first place, none of this would have happened to him. So, in some sense, the arrest - allegedly illegal - was a cause of Grey's death. However, the intervening actions of a number of other officers who took over after the initial arrest occurred, and had a role in transporting the victim, are likely to be seen an intervening causes - breaking the chain of legal causation so that the false arrest is no longer a direct cause. If not, then officers who falsely arrest someone would be criminally liable for anything which happens thereafter - e.g., even if he died in a hospital from malpractice, or was beaten to death in jail by another inmate. Closely related to the problem of proving causation are the issues raised by divided responsibility, since to convict any particular officer, the prosecutor must prove beyond a reasonable doubt that his or her action or inaction was a direct cause of Grey's death, Thus, if officer X had for example suggested that the wagon be stopped, and that medical assistance be brought to the location of the transport vehicle, but other and perhaps more senior officers would likely have disagreed, it's hard to be believe - much less to prove beyond a reasonable doubt - that the silence of office X was a direct cause of Grey's death. Moreover, it's not completely clear that it was wrongful, or even negligent, for officers to continue to transport a prisoner simply because he complains of pain, problems of breathing, etc. Police will probably put on experts who will testify that such complaints are all too frequent, and usually false or at least exaggerated, so that a fixed rule requiring that transport vehicles always be halted in such cases would result in enormous wastes of time and much less efficient policing. It may also be true that it is better to continue to transport the prisoner to the booking station, since the medical treatment available there may be better than in any ambulance which might be called if the transport vehicle is stopped in the street. It's quite possible that the prosecutor "overcharged" But, regardless of the reasons behind charges which seem far reaching in the apparent absence of a clear statement of exactly how and when the fatal injury occurred, it may well be that some will be dismissed by a judge, and that others will fail at trial, suggests Banzhaf. JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D. Professor of Public Interest Law George Washington University Law School, FAMRI Dr. William Cahan Distinguished Professor, Fellow, World Technology Network, Founder, Action on Smoking and Health (ASH) 2000 H Street, NW Washington, DC 20052, USA (202) 994-7229 // (703) 527-8418 http://banzhaf.net/ End
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