I couldn’t believe it when I heard it. I was channel surfing and stopped on one of the major news channels. A well respected analyst passionately stated that the criminal case against the six Baltimore police officers was a ‘slam dunk.’ I immediately shook my head in disbelief. I know one thing is certain about this case. It’s not a slam dunk and convictions for all the officers is not a certainty. I join many of my colleagues in questioning whether the charges brought can be legally proven. Because all of the facts have not been released, I’m not suggesting that the charges aren’t warranted. I’m simply suggesting that based upon what has been released to date, there’s good reason to question whether the charges can be proven beyond and to the exclusion of every reasonable doubt.

Let’s start with the second degree murder charge brought against officer Caesar R. Goodson Jr. He was the driver of the van that transported Freddie Gray after his arrest. To secure a conviction for second degree murder in Maryland, prosecutors must prove that the defendant committed the offense with a “depraved heart.” That means that they must show that Goodson had a willful and wanton disregard for the life of Freddie Gray. Another way to put it is the prosecution must show the act was so dangerous, it evidenced a complete indifference to Freddie Gray’s life. If the evidence proved that Goodson intentionally took sharp turns at a high rate of speed, knowing that Gray’s head would be slamming into the side of the van while he lay vulnerably hog tied on his stomach, then I believe there’s a strong likelihood of conviction. However, the prosecutor isn’t alleging that the driver engaged in any of that conduct. Rather, the prosecutor’s theory is that Goodson drove the van without properly seat belting Gray and, also, failed to seek medical attention upon Gray’s repeated requests. I disagree with some of my legal colleagues who call this one a “slam dunk.” If given a fair trial, Goodson has a great chance of avoiding conviction on that charge. I’m in no way suggesting that Goodson didn’t screw up. He may have. The defense will explain why he did what he did that day and jurors will determine whether his actions were reasonable or criminal. The issue is whether there’s sufficient evidence to prove that his conduct was reckless as opposed to merely negligent (failing to use reasonable care). Based upon what was stated at the press conference, which one can assume is the best evidence they have, I anticipate significant challenges securing a conviction for second degree murder.

Regarding the officers charged with involuntary manslaughter, the prosecutor must prove that the officers’ actions constituted “gross negligence.” The prosecution’s theory is that officers ignored Freddie Gray’s repeated request for medical treatment. At trial, the defense will explain why they don’t always rush to provide medical assistance every time an arrestee requests it. Perhaps they will say that like a “Boy who cried wolf,” many arrestees request medical attention when it’s not needed. Jurors will evaluate their explanations and determine if the officers acted reasonably. Prosecutors may have enough evidence to secure convictions. On the other hand, it’s possible that jurors find, at worst, that the officers’ actions constituted mere negligence and not gross negligence. Negligence occurs when a person fails to use reasonable care. Negligence is sufficient to win a civil lawsuit and recover money damages, however, it’s not sufficient to secure a conviction in the criminal arena.

Prosecutors may also face challenges securing convictions against the three officers who were charged with false imprisonment. The prosecutor announced that the officers lacked probable cause to arrest Freddie Gray for unlawfully possessing a switchblade found in his pants at the time of his apprehension. Apparently the knife Gray was carrying was lawful to possess in Maryland. If the officers simply made an honest mistake, erroneously believing at the time of arrest that Gray was committing a crime by possessing the knife, then jurors may choose to acquit. Most reasonable people don’t expect officers to be perfect. Cops don’t always know what constitutes a crime under every single statute. In my over two decades in the criminal arena as both a prosecutor and a defense lawyer, I’ve seen approximately a dozen cases where cops in good faith make arrests believing a particular knife is unlawful only to learn otherwise by a prosecutor who took the time to research the issue. Jurors may be hesitant to label officers’ conduct criminal if they find that they made an honest mistake.

A ‘slam dunk,’ this case is not. The prosecutor chose to levee charges that may be challenging to prove. That’s not to suggest that the officers didn’t commit criminal wrong doing. They may have. What’s also possible is that jurors find that while mistakes were made, they aren’t going to require that the officers be perfect. They may likely find that some or all were negligent for failing to use reasonable care, however, under the law, more is required for criminal convictions.

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