On Friday, Baltimore City State’s Attorney Marilyn Mosby announced that her office had found probable cause for the arrest of six Baltimore police officers in connection with the death of Freddie Gray. Her statement detailed the finding of events that occurred leading up to Gray’s death and included a slew of charges against each officer, based on his or her level of involvement and actions as found through an internal investigation. The charges range from second-degree murder to assault, misconduct and unlawful imprisonment. Here is a look at what the next steps are, from a legal perspective.
Is this an indictment? No. Now that arrest warrants have been issued and the officers have all been taken into custody, the prosecution will have 30 days to present the evidence before a grand jury in a secret proceeding in order to secure an indictment against the officers, have them formally charged and arraigned, and proceed toward trial. During that time, prosecutors from Mosby’s office will interview the witnesses who contributed to the internal investigation conducted at the mayor’s request and prepare those witnesses to testify in front of the grand jury.
It will be of paramount importance that the testimony they give to the grand jury is substantially similar to and consistent with the statements they made as part of the investigation. Recall that in Ferguson, Mo., prosecutor Bob McCullough cited inconsistencies in witness statements as one of the reasons Darren Wilson was not indicted for the killing of Michael Brown. In addition to the testimonial evidence from witnesses, Mosby’s office will likely also present medical experts and physical evidence to further explain the nature of Gray’s injuries and to help sustain the charges.
Was this case overcharged or did Mosby get it just right? Both. It is not uncommon to see this many charges at this point of an arrest. Usually a prosecutor’s office will make a point of having the initial charges as wide as possible in order to ensure that the arrest takes place, and the charges will become increasingly narrow as the case proceeds. For example, it is unlikely that Mosby’s office will seek to indict any of the officers on the misdemeanors they have been charged with, but will focus on the more serious felonies to secure an indictment
If this case goes to trial, it would not be unusual to see the prosecutor’s office focus only on the top counts for each officer. The reason for this is it forces the jury to make a decision. Sometimes, when juries are given the option of too many charges, they might decide to convict, but do so on a less serious offense as a means of compromising among themselves. Prosecutors generally like to avoid this because they would prefer that the jury convict for the more serious crimes, and so they will sometimes take the gamble of giving a jury fewer options to choose from, thereby forcing jurors to deliberate on the highest-level crimes on the indictment.
If the case goes to trial, might there be a plea? Hard to say with any certainty, but given the larger political implications involved with the community of Baltimore and how this case has garnered national attention, it is unlikely that Mosby’s office will entertain any notion of a plea bargain for the officers. There is always the outside chance that in exchange for cooperative testimony against the officers charged with the higher offenses, prosecutors could consider cutting a deal with some officers if they are willing to make statements against one another.
Because they are co-defendants, however, that possibility is low, given that each defendant will already have to decide for him- or herself whether to put on a case. For the defendants, that will inevitably involve some level of shifting culpability away from themselves and onto one of their co-defendants. This is one of the advantages of how Mosby’s office charged the individual defendants. Because each of the officers is defending against separate and individual charges, it makes it slightly more difficult for them to avoid responsibility for specific actions.
Will Mosby’s office stay on the case? Almost immediately after Mosby’s press conference, police unions in Baltimore went on a public campaign to try to get Mosby’s office removed from the case, calling for a special prosecutor. Measures like these are usually reserved for cases in which there is a conflict of interest or the threat that the prosecutor’s office cannot be impartial toward the defendant in prosecuting the case. At this point, there hasn’t seemed to be anything presented by the police unions to support their calls for a special prosecutor, and it appears unlikely that Mosby will need to recuse herself from the case or call in a special prosecutor.
Charles F. Coleman Jr. is a civil rights trial attorney, legal analyst and former Brooklyn, N.Y., prosecutor. He is also a professor of criminal justice at Berkeley College in New York. Follow him on Twitter.