The Five Lingering Questions After Baltimore Prosecutor's Announcement of Charges in Freddie Gray's Death

05/05/2015 03:27 pm ET | Updated May 05, 2016

On Friday May 1, Baltimore's chief prosecutor, Marilyn J. Mosby, charged six police officers with a range of offenses from murder to false imprisonment in the April 12 incident that led to the death of Freddie Gray. It is clear that the alleged conduct portrays a troubling mentality in which this young man's life held little or no value to those officers. However, this case will likely have significant legal challenges that are belied by the confidence of Ms. Mosby's presentation and the relative breakneck speed at which she filed charges. After listening closely to the press conference, I believe there are five big takeaways:

1.) Why Did Ms. Mosby Only Say There Was "Probable Cause" to Arrest the Officers?

Ms. Mosby was clearly careful in her word choice during her mostly scripted statement, especially when she limited her characterization of the strength of the current evidence to, "[W]e have probable cause to file charges." For any prosecutor to legally charge a suspect with a criminal offense she must only believe there is "probable cause" that a crime was committed; that is specific and articulable facts to support the allegations, a fairly low evidentiary standard. However, once she gets to trial, she must have evidence that proves each element of each charge "beyond a reasonable doubt," a much higher burden of proof. Therefore, most prosecutors do not file charges unless they believe they have the goods to prove the allegations beyond all reasonable doubt or in good faith believe they will be able to obtain that quality of evidence prior to trial. Near the end of her statement on Friday, Ms. Mosby said that ethically she could not discuss the bulk of the evidence, but she made this claim only after giving a lengthy statement containing many specifics. I can only speculate that Ms. Mosby either held back on disclosing even the outline of major pieces of her evidence or has a plan to "flip" one or more of the officers facing lesser charges to get them to testify against those charged with the more serious offenses.

2.) What Did Ms. Mosby Mean When She Said the "Arrest" of Mr. Gray Was Illegal?

The factual foundation of the charges stems from what Ms. Mosby has declared to be an illegal "arrest." In the criminal justice system, the word "arrest" takes on a specific meaning that is distinct from the initial chase and capture-that is what the law calls a "detention." The legality of the "arrest" turns on the purported legal reason given by the officers to bring Mr. Gray to the police station for booking -- here an allegation that he possessed an illegal knife. To be clear, probable cause to arrest a suspect does not require that an officer ultimately be proven correct about whether a crime was in fact committed- he needs only to have specific and articulable facts to support the arrest. This is of course why it is called "probable cause" and not "definite cause." Ms. Mosby stressed several times in the press conference that the arrest was illegal because the knife was legal under Maryland law, previewing what will undoubtedly be one of the most critical parts of the legal case because if the arrest was legal, charges against several of the officers will collapse, and the murder and manslaughter charges will become significantly more difficult to prove.

Having personally dealt with the prosecution of numerous illegal knife cases, I believe it may surprise many that it is not always abundantly clear which knives are legal and which are illegal. This line is not readily discernible to even experienced officers. But the salient question here is something slightly different: would any reasonable officer automatically know that the knife was undoubtedly legal? As a prosecutor, I would be hesitant to base a serious criminal charge on a reasonable officer's perception of a technicality such as that between a spring-assisted knife and a switchblade knife; the former is legal, and the latter is illegal. The state of mind that must be proven at trial to satisfy a prosecutor's burden on a false imprisonment charge is that the officers knew, beyond all reasonable doubt, that the knife was legal but arrested Mr. Gray nonetheless. Bottom line, I hope Ms. Mosby did not base the false imprisonment charges on such a technical distinction and that it is clear that the reason that the officers gave for the arrest was a manifest pretext and not a common technical misunderstanding.

3.) Why Did Ms. Mosby Charge the Driver With Murder?

The only officer Ms. Mosby charged with murder is the driver of the police van, Mr. Caesar Goodson. But it is well to note that Mr. Goodson is not charged with an act of intentional murder. He is charged with what is called "depraved heart murder," which requires that he perform an act showing a wanton and reckless disregard for Mr. Gray's life and that the act be a substantial cause of the death. This is the mental state in non-intentional homicides that requires a greater degree of recklessness than even the gross negligence of a manslaughter charge. I have prosecuted many depraved heart murder cases and have found that they are some of the most challenging in which to obtain a conviction. But, what is remarkable in her press conference is that Ms. Mosby referred several times to the failure of the officers to belt in Mr. Gray as required under the Baltimore Police Code yet made no allegation that there was any reckless driving by Mr. Goodson or anything resembling the practice of so-called "wild rides," in which a detained person is subjected to purposeful erratic driving while unrestrained in the back of a police wagon. Possibly that revelation is still to come, but its absence on Friday was conspicuous to me in her otherwise detailed litany of the facts.

4.) Why Did Ms. Mosby Never Say That Any Officer Struck or Beat Mr. Gray?

Despite many of the officers being charged with assault, there was not a single word in Ms. Mosby's announcement that any officer hit, struck, kicked or used a weapon against Mr. Gray. Although a battery is not required to substantiate any of these charges, the lack of it distinguishes this incident from the vast majority of police abuse cases that result in criminal charges against officers. The best I can tell, the prosecutor's theory is that the fatal injuries were caused solely by the officers' abject failure to secure Mr. Gray during transportation, coupled with the officers' failure to obtain medical assistance when it was obvious that assistance was vital. Very serious charges nonetheless.

5.) Why Did Ms. Mosby Not Bring Any Conspiracy Charges Against the Officers?

Although it would be highly unusual to have a conspiracy charge in a police officer abuse case, it is equally unusual to charge six police officers with such an eclectic range of misconduct during a single incident without evidence of a purported plan or even a prior relationship beyond being police officers of the same department. What is clear is that no evidence has been released that the officers had a specific plan to target or abuse Mr. Gray. If Ms. Mosby is claiming that all six officers engaged in criminal acts against Mr. Gray without preplanning or coordination, it seems to suggest that her opinion is that there is a culture of abuse in the Baltimore Police Department so pervasive that every officer who was involved in this particular arrest and transportation of Mr. Gray was predisposed to commit serious crimes. There may well be additional evidence coming that demonstrates a relationship between these officers that will provide some level of understanding as to what created this seemingly perfect storm of misconduct, but it certainly looks bad for Baltimore police that so many officers almost simultaneously violated Mr. Gray's rights.

To be sure, this is just the beginning of this case, and a richer, more textured, yet even more contentious narrative will undoubtedly emerge in the coming months. Justice is rarely tidy and this courageous prosecutor certainly has her work cut out for her.