Un­usual tack in Gray case: ‘Homi­cide by omis­sion’

The Washington Post Sunday - - METRO - BY PETER HER­MANN AND LYNH BUI

When six Bal­ti­more po­lice of­fi­cers go to trial over the death of Fred­die Gray, pros­e­cu­tors will fo­cus not on what the of­fi­cers did, but on what they failed to do.

Un­like most crim­i­nal cases in­volv­ing homi­cides — where some­one is charged with shoot­ing, hit­ting, stab­bing or chok­ing a vic­tim — the one headed for trial in Bal­ti­more in Oc­to­ber in­volves an un­usual and com­pli­cated con­cept: homi­cide “through acts of omis­sion,” to quote the med­i­cal ex­am­iner in Mary­land who per­formed Gray’s au­topsy, ac­cord­ing to a re­port ob­tained by the Bal­ti­more Sun last week be­fore it be­came public.

The med­i­cal ex­am­iner con­cluded that Gray, with­out a seat belt and hand­cuffed in the back of a po­lice van, lurched when the van sped up or turned, strik­ing his head and suf­fer­ing a fa­tal neck in­jury. When Gray, 25, re­peat­edly asked for help, author­i­ties said, he was ig­nored.

The au­topsy re­port will be key to both sides in a closely watched case that is be­ing scru­ti­nized by le­gal ex­perts and res­i­dents. Gray’s death in April sparked ral­lies that turned vi­o­lent the day of his fu­neral, when ri­ots, loot­ing and fires forced author­i­ties to de­clare a state of emer­gency and put Bal­ti­more un­der cur­few.

Le­gal ex­perts said the chal­lenge

for pros­e­cu­tors will be con­vinc­ing a jury that each of­fi­cer bears some re­spon­si­bil­ity in the death. The of­fi­cer who drove the van is charged with de­praved-heart mur­der, and three oth­ers face charges of in­vol­un­tary man­slaugh­ter. Two oth­ers are ac­cused of lesser crimes. Pros­e­cu­tors said in court fil­ings that in­ves­ti­ga­tors have amassed 300,000 dig­i­tal files of ev­i­dence.

“Homi­cide by omis­sion is a dif­fi­cult le­gal the­ory in the crim­i­nal law,” said José F. An­der­son, a pro­fes­sor at the Univer­sity of Bal­ti­more School of Law. “You have to show crim­i­nal re­spon­si­bil­ity by in­ac­tion.” He added: “The real ques­tions are go­ing to be how can they pin­point when the trau­matic in­jury oc­curred or when [Gray] might have called out for help and for how long those cries were ig­nored.”

A spokesman for the Mary­land Of­fice of the Chief Med­i­cal Ex­am­iner de­clined to com­ment on the au­topsy re­port or to pro­vide a copy. The Bal­ti­more City State’s At­tor­ney’s Of­fice did not re­turn calls for com­ment. At­tor­neys for the of­fi­cers ei­ther de­clined to­com­ment or did not re­spond.

Shack­led at his feet, hand­cuffed be­hind his back and slid belly down into the van af­ter his ar­rest, Gray may have been able to stand but un­able to brace him­self, the med­i­cal ex­am­iner con­cluded. He was thrown into a wall when the van sud­denly sped up, slowed down or changed di­rec­tion, ac­cord­ing to the re­port. The med­i­cal ex­am­iner said that could have caused him to suf­fer a “high energy in­jury”— sim­i­lar to an in­jury from a shal­low wa­ter dive — that se­verely dam­aged his spinal cord.

“Due to the fail­ure of fol­low­ing es­tab­lished safety pro­ce­dures through acts of omis­sion, the man­ner of death is best cer­ti­fied as homi­cide,” wrote Carol H. Allan, the as­sis­tant med­i­cal ex­am­iner, ac­cord­ing to ex­cerpts pub­lished in the Sun.

Sev­eral le­gal ex­perts and pathol­o­gists said that based on what they read, they would have ruled Gray’s death ac­ci­den­tal or un­de­ter­mined be­cause of the com­plex­i­ties and sub­jec­tive na­ture of a case of homi­cide by omis­sion.

“The con­cept of neg­li­gence or act of omis­sion in clas­si­fy­ing man­ner of death can be tough and is prob­a­bly not done in a stan­dard fash­ion around the coun­try,” said Randy L. Han­zlick, pro­fes­sor of foren­sic pathol­ogy at Emory Univer­sity in At­lanta.

Gray was ar­rested af­ter he spot­ted of­fi­cers and ran from a cor­ner West Bal­ti­more. Pros­e­cu­tors and of­fi­cers dis­agree on the le­gal­ity of the chase and over the le­gal­ity of a spring-loaded knife found in Gray’s pocket. Video shows of­fi­cers drag­ging a seem­ingly limp Gray into a trans­port van.

The med­i­cal ex­am­iner wrote that she thinks Gray might have stood by brac­ing him­self against the bench and was pro­pelled head­first into a side wall.

“Mr. Gray was re­strained with his wrists be­hind his back and at the an­kles, was not belted with the safety belts that were present in the van, and due to an ob­structed view of the road­way would have had trou­ble an­tic­i­pat­ing the van’s mo­tion,” the re­port says. “There­fore, he was at risk for an un­sup­ported fall dur­ing ac­cel­er­a­tion or de­cel­er­a­tion of the van.”

Sev­eral le­gal ex­perts in­ter­viewed said that it might be most chal­leng­ing for pros­e­cu­tors to prove the charge of sec­ond-de­gree mur­der, and they ques­tioned the med­i­cal ex­am­iner’s re­port for be­ing far from decisive. The med­i­cal ex­am­iner used phrases such as death “most likely caused” and “it is pos­si­ble the neck in­jury oc­curred.”

“What they’ve iden­ti­fied is a sin­gle trau­matic event that caused a death,” said An­drew C. White, a Bal­ti­more de­fense lawyer and for­mer fed­eral pros­e­cu­tor. “All the rest is just what pros­e­cu­tors have writ­ten. The med­i­cal ex­am­iner takes it as the gospel truth, just as­sum­ing ev­ery­thing is true. No court hear­ing has tested the va­lid­ity of any of the facts as al­leged by the pros­e­cu­tors.”

But Joseph E. diGen­ova, a for­mer fed­eral pros­e­cu­tor in the Dis­trict, called the au­topsy re­port “un­re­mark­able,” in that he said its clin­i­cal prose does not stray from ac­cepted prac­tice.

“A med­i­cal ex­am­iner is a de­tec­tive,” he said. “That means they are trained to look with an in­de­pen­dent eye not only at the tox­i­col­ogy, the chem­istry, the phys­i­cal in­juries, but also at the set­ting, or the stage, of death.” He said that the med­i­cal ex­am­iner had to con­sider whether Gray had worn a seat belt, his po­si­tion­ing in the van, the way it was driven and whether any med­i­cal at­ten­tion was ren­dered.

DiGen­ova said the de­fense would prob­a­bly ar­gue that “there are too many ways that this could have hap­pened” to reach a firm con­clu­sion.

Still, he said, the lack of re­straints “is pretty damn­ing ev­i­dence” of neg­li­gence. The union rep­re­sent­ing Bal­ti­more po­lice of­fi­cers has said that reg­u­la­tions re­quir­ing pris­on­ers to have on a seat belt were made manda­tory just days be­fore Gray’s ar­rest and that the rules were con­tained in a large packet of other di­rec­tives that they said most of­fi­cers never read. Pros­e­cu­tors will have to prove that the of­fi­cers were aware of the reg­u­la­tions and dis­re­garded them, diGen­ova said.

Wil­liam C. Bren­nan, a Mary­land de­fense lawyer, said the big­gest chal­lenge for the state will be to prove the sec­ond-de­gree de­praved-heart mur­der charge. Ac­cord­ing to jury in­struc­tions, prosin ecu­tors must con­vince a judge or jury that the driver of the van not only caused Gray’s death, but also “cre­ated a very high de­gree of risk” to Gray’s life and, know­ing that risk, “acted with ex­treme dis­re­gard of the life-en­dan­ger­ing con­se­quences.”

“It’s re­ally stretch­ing it and tak­ing it too far based on these facts,” Bren­nan said of the mur­der charge.

Even the in­vol­un­tary man­slaugh­ter charge will re­quire pros­e­cu­tors to prove of­fi­cers were “grossly neg­li­gent.”

“This case is go­ing to hinge enor­mously on a jury or judge’s es­ti­ma­tion of what was in the in­di­vid­ual mind of de­fen­dants at the time when they made these de­ci­sions,” said Adam Ruther, a Bal­ti­more-based de­fense lawyer who worked as a pros­e­cu­tor for Bal­ti­more City be­fore leav­ing in April.

Charges are filed against of­fi­cers Cae­sar R. Good­son Jr., Wil­liam G. Porter, Ed­ward M. Nero and Gar­rett E. Miller, Sgt. Alicia D. White and Lt. Brian W. Rice.

Good­son faces the most se­ri­ous charges — sec­ond-de­gree de­praved-heart mur­der, in­vol­un­tary man­slaugh­ter and as­sault, among other counts. Porter, Rice and White each face in­vol­un­tary man­slaugh­ter and other charges. Nero and Miller face charges that in­clude as­sault. All six also are charged with mis­con­duct in­of­fice.

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