Freddie Gray Autopsy Report Deals Blow to Murder Charges

Andrew C. McCarthy:

Baltimore prosecutor Marilyn Mosby has withheld the autopsy report on Freddie Gray from defense counsel and the public for nearly two months. It is the report on which she relied to file murder and other charges against six police officers, even though the investigation into Mr. Gray’s death was not close to being complete.

Now, just two days before Friday’s court deadline for the state to disclose the report to the defense, it has been leaked to the Baltimore Sun.

The Sun’s story makes it easier to understand why Ms. Mosby wanted the autopsy kept under wraps. It raises additional disturbing questions about her case — a case in which she has already had to dismiss false-imprisonment charges, the untenable nature of which I explained when Mosby filed them.

It turns out that Mr. Gray “tested positive for opiates and cannabinoid.” Moreover, he carried on wildly when initially placed in the police van. It had previously been widely reported that he was not belted into his seat, a violation of recently adopted Baltimore police policy that Mosby dubiously makes the plinth of her case. The Sun’s latest dispatch, however, indicates that Gray was making matters difficult for the police: “yelling and banging, ‘causing the van to rock,’ the autopsy noted.”

The van made several stops during its 45-minute ride. At the second one, six minutes after the arrest, Gray was reportedly “still yelling and shaking the van.” Police thus removed him and placed him in leg restraints — ankle cuffs, to go along with the handcuffs that had already been applied. Gray was “then slid onto the floor of the van, belly down and head first,” according to the autopsy report, which gingerly adds that he was, at that point, “still verbally and physically active.”

It was after this, the medical examiner concluded, that Gray suffered a severe spinal injury (which led to his death, a week later). At some undetermined point during the van’s journey, he was catapulted by the force of its deceleration and crashed into the interior. The injury is likened to a “shallow-water diving accident.”

Significantly, however, the medical examiner, Carol H. Allan, surmised that Gray probably could not have sustained his severe injuries if he’d remained in the prone position the police had put him in.

The Sun report elaborates:

While it’s possible Gray was hurt while lying on the floor and moving back and forth, Allan determined that his body likely couldn’t have moved in that position with enough force to cause his injuries. Allan surmised that Gray could have gotten to his feet using the bench and opposite wall. With his hands and ankles restrained, and unable to see out of the van and anticipate turns, she said, he was at a high risk for an unsupported fall.

Thus, the most likely scenario is that Gray, under the influence of narcotics and in the course of making his transport difficult for the arresting officers, elected on his own to get to his feet despite the difficulty of doing so. Under circumstances where his arms and legs were restrained, Gray’s decision to change the position the police had put him in rendered him vulnerable to the “high-energy” injury he sustained.

This is not to say the police should not have done a better job of securing Gray. But we are not talking here about whether they violated procedure and prudence. We are talking about whether their conduct warrants prosecution formurder and lesser forms of culpable homicide.

The driver of the van, Officer Caesar R. Goodson Jr., is charged with depraved-heart murder in the second degree. In his case, the question is whether he acted with such wanton indifference to Gray’s life that his conduct should be considered just as blameworthy as if he had fully intended to kill Gray. As one Maryland court has instructed:

This highly blameworthy state of mind is not one of mere negligence. It is not merely one even of gross criminal negligence. It involves rather the deliberate perpetration of a knowingly dangerous act with reckless and wanton unconcern and indifference as to whether anyone is harmed or not. The common law treats such a state of mind as just as blameworthy, just as antisocial and, therefore, just as truly murderous as the specific intents to kill and harm.

It is blatant overreach, on the facts spelled out in the autopsy report, to describe Goodson’s conduct as the “depraved heart” equivalent of willfully murdering Freddie Gray.

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