Cleveland Verdict Highlights Big Burden for Baltimore’s Prosecutor in Cop Case

The Problems Proving That Any One Police Officer Was the Legal Cause of Death May Be Insurmountable
WASHINGTON - May 23, 2015 - PRLog -- A Cleveland judge’s verdict that a police office who fired many shots, in a bizarre shootout which clearly did contribute to the death of two people, was not guilty of homicide (voluntary manslaughter) - in part because it had not been proven beyond a reasonable doubt which of the 137 shots fired in total by several different officers caused the deaths - highlights a major problem with proving four of the most serious charges leveled against six Baltimore police officers in the “rough ride” case.

        The Cleveland judge very clearly explained the problems the Baltimore prosecutor will have in trying to prove beyond a reasonable doubt that any one of the four different officers charged with causing the death of Freddie Gray (homicide) actually was the legal or responsible cause.  He wrote: "If the evidence demonstrates that the conduct of two or more officers combined to produce the deaths, [Defendant] Brelo can be found to be the ‘but for’ cause so long as the conduct of the others alone would not have caused the deaths. “  More specifically, he found that even though Brelo did take one of the four shots which killed Russell, he could not find beyond a reasonable doubt which "of the four fatal wounds he caused."

        Exactly the same type of problem is likely to bedevil the Baltimore prosecutor in her case where six different officers all allegedly engaged in criminal wrongdoing which clearly did lead to Freddie Gray's death, but where - since there appears to be no video, forensic, or other evidence as to exactly when and how the eventually-fatal spine injury occurred - no doctor is likely to be able to testify to a reasonable medical certainty that the action or inaction of any one officer (Officer X) was the cause of the death.

        Thus, some of the charges lodged against four Baltimore police involving homicide are likely to be dismissed or to fail at trial, possibly triggering more violence in Baltimore and perhaps elsewhere, says public interest law professor John Banzhaf.

        Banzhaf's correct predictions in high profile legal 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 others.

        Four of the Baltimore officers are charged with killing Gray (manslaughter and/or murder).  But to convict, the prosecutor must prove beyond a reasonable doubt that each, by his act or omission, was a direct and significant cause of the death - i.e.,, if Officer X had not done Y, Gray would still be alive.

        If, as the prosecutor charged, Gray suffered "a severe and critical neck injury" [reportedly an 80% severance of his spinal cord] "following transport from Baker Street,” it may be impossible to find a doctor who will swear under oath that Gray would still be alive if only one of the officers had requested medical treatment at a subsequent stop.  Indeed, if his spine was almost completely severed early in the trip, and it was the injury to the spine which was the cause of his death, it’s likely none of the subsequent omissions (e.g., to obtain medical aid, to use a seat belt, etc.) can be shown to be a legal cause of his death.

        Actually, says Banzhaf, it may be difficult to prove beyond any reasonable doubt on which of the several stages in the transport wagon's journey the fatal spinal cord injury occurred. The charges do not recite any specific precipitating event: e.g., a ride made unnecessarily rough, any deliberate beating or other similar activity by any of the officers, tossing Gray into the van on his head, etc.

        Without being able to prove beyond a reasonable doubt when the spinal injury occurred, it may be impossible to show what action or inaction by which officer would have prevented that severe injury from becoming fatal.  Moreover, it's not clear whose responsibility it might have been to either stop the transport wagon and call for medical help and/or to restrain Gray with a seat belt.  In the absence of a clear rule about who has this specific responsibility  - e.g., the wagon operator, the arresting officer, the highest ranking officer on the scene, etc. - it may be hard to blame any one single officer for the death.

        Moreover, even if Officer X had suggested stopping the van to obtain medical assistance and/or to properly restrain the prisoner, it may be impossible to prove beyond a reasonable doubt that this would in fact have occurred, and that the other officers might not have disregarded Officer X's request.

        If so, Officer X's failure to take such actions would not be a “but for” cause of the death, since the death presumably would have occurred anyway if Officer X has behaved properly but his colleagues didn’t.  The mere fact that one officer may have played an initial role in a sequence of events which eventually lead to death does not mean he can be convicted of murder or manslaughter, since that requires that his action be shown to be a direct cause of the death without intervening causes.

        For example, it is reasonably clear 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 an illegal one - 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 as intervening causes - breaking the chain of legal causation so that the false arrest is no longer a direct cause.  If not, then any officers who falsely arrest someone would be criminally liable for anything which happens subsequently - e.g., if he is murdered by rogue cops transporting him, or even if he died in a hospital from malpractice, or was beaten to death in jail by another inmate.  This makes no sense, and is clearly not the law.

       In summary, the Baltimore prosecutor will face at least two major problems: proving beyond a reasonable doubt that any defendant had to requisite state of mind to be guilty of murder or even manslaughter, and that any particular officer - and not some another - was the legal cause of Gray’s death.  The latter issue was a major factor in the Cleveland acquittal of Office Brelo.

GWU Law School
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