by Justin Fenton, The Baltimore Sun
Five Baltimore police officers involved in the 2015 arrest and death of Freddie Gray have been charged with violating department rules, with three of them facing termination, The Baltimore Sun has learned.
The three who face firing are Officer Caesar Goodson, who was driving the van where an autopsy determined Gray suffered fatal injuries; and supervisors Lt. Brian Rice and Sgt. Alicia White, according to sources with knowledge of the case.
Meanwhile, Officer William Porter, who was criminally charged with manslaughter, is not facing any internal discipline.
The internal charges come after investigators from the Montgomery and Howard county police departments finished their review of the case earlier this month. The Baltimore Police Department asked them to handle the investigation to avoid a conflict of interest.
All of the officers can accept that punishment or elect to contest the charges before a “trial board,” an internal disciplinary panel comprised of police officers. The board has the power to acquit the officers or uphold the charges. If the charges are upheld, Police Commissioner Kevin Davis would have the final say on punishment.
A new state law makes trial boards open to the public, but keeps the outcomes secret.
Police spokesman T.J. Smith declined to comment Monday, saying the department is unable to discuss personnel matters.
“This case has always been about providing justice for an innocent 25-year-old man who was unreasonably taken into police custody, severely injured while in police custody, and died due to a lack of care,” she said. “If today’s news is accurate, I am relieved to know that a majority of those involved will be held administratively accountable for their actions.”
The five officers were informed of the charges against them Friday, according to Michael E. Davey, an attorney who handles internal affairs cases for the police union, the Baltimore Fraternal Order of Police. Davey represented all five officers during the internal review.
The specifics of the charges — and what actions, or failure to act, led to them — is not clear. Davey said the officers are charged with “violations of policy and procedure,” but declined to elaborate.
Gene Ryan, the police union president, did not return calls seeking comment. The charges are likely to upset many rank and file officers who felt their colleagues were vindicated when the criminal charges against them failed.
The five officers facing internal discipline could not be reached for comment.
Attorney Joseph Murtha, who represented Porter in his criminal case and the administrative investigation, cheered the findings regarding his client and said it showed he was “a truth-teller” in his account of the events surrounding Gray’s death.
Murtha said Porter plans to stay with the department.
“His goal from the beginning was to continue to be a Baltimore police officer, and is relieved that he continues to have that opportunity available to him,” Murtha said.
Tessa Hill-Aston, president of Baltimore’s NAACP chapter, said she believes Nero and Miller should face stiffer punishment for putting the series of events into motion. The two arrested Gray after he ran from them near the Gilmor Homes public housing development in West Baltimore.
“Everyone got pulled into what they started,” Hill-Aston said.
But she said she was glad to see the internal discipline come down.
“They needed to be punished in some form or fashion, and the community will feel good that we got some satisfaction,” she said.
The internal charges extend the fallout from Gray’s death two years ago, which garnered national attention amid a string of high-profile police shootings across the country and sparked days of protests locally.
Gray, 25, was arrested on April 12, 2015 and died a week later of a severe spinal injury that an autopsy determined he suffered while riding in the back of a police transport van, where officers did not secure him with a seat belt.
Prosecutors then charged six officers with offenses ranging from misconduct to manslaughter and second-degree murder, in part for failing to secure Gray in a seatbelt and seek medical care for him. All pleaded not guilty.
Porter went to trial first in December 2015 and the jury deadlocked, resulting in a mistrial.
Nero, Rice and Goodson were acquitted by a judge in bench trials last year, and prosecutors then decided to drop the remaining cases.
Defense attorneys argued that the allegations against the officers did not rise to criminal conduct. They said they could not find any examples of officers being criminally charged for failing to take action.
The internal discipline system evaluates whether the officers broke department rules.
The Police Department had trained officers on rules regarding securing detainees with seat belts and had been conducting audits to ensure compliance, according to testimony. Just days before Gray’s arrest, new rules were emailed to all officers, removing officer discretion.
Defense attorneys countered that situations weren’t always clear-cut, and officers continued to have wide discretion. A Baltimore police commander testified as an expert witness for the defense.
City Councilman Brandon Scott, chairman of the public safety committee, said Monday he would wait and see what happens to the cases if they go to the trial board. He said Davis will be under pressure from different sides to either fire or clear the officers.
“There’s pressure on him both ways. There’s clearly pressure from the community that wants to see some action taken,” Scott said. “On the other side, there’s pressure from folks inside law enforcement, who are saying, ‘If they weren’t found guilty criminally we should just move on.'”
Karen Kruger, a Baltimore lawyer who is a national expert on police discipline, said Davis will have a major say in the outcome of the case.
“The commissioner has a lot of authority,” Kruger said. “He also has a lot of responsibility, and has to answer to the citizens.”
At a trial board, the standard of proof is a “preponderance of evidence,” a lower standard than a criminal case, and the panel does not have to be unanimous in its decision.
If the officers who elect to have trial boards are acquitted, the process concludes and the commissioner cannot impose punishment. If the panel sustains the findings of the internal investigation, they recommend punishment, which Davis can accept, lessen, or increase.
Porter was nearly convicted of misconduct in office at his trial, with sources familiar with the deliberations telling The Sun last year that jurors were two votes away from conviction on that count.
But the outside investigation found Porter broke no agency rules, and Davis is unable to override that finding.
Porter, who like the other officers has been suspended and working administrative duties with pay since being cleared of criminal charges, can now return to full duty.
The other officers remain suspended with pay and working in administrative roles.
Goodson, the driver of the van transporting Gray, faced the most serious criminal charges of any of the six officers — second-degree depraved-heart murder.
Circuit Judge Barry Williams, in acquitting Goodson of all charges in June 2016, said he was “satisfied” that department rules required Goodson to assess whether or not to seat belt Gray. But he said prosecutors failed to show Goodson “corruptly” failed to follow those rules, the standard needed for a criminal conviction. A different standard will apply to the internal charges.
Rice, the highest-ranking officer of the six charged, was accused in his criminal case of causing Gray’s death by failing to secure him in a seat belt in the back of the van. Williams ruled that prosecutors failed to show that Rice had read the new rules on using seat belts or that they negated his ability to use discretion.
“This court’s findings and determinations cannot rest upon presumptions or assumptions,” Williams ruled.
Prosecutors said that White had received complaints about Gray’s arrest, and was responsible for investigating them but only spoke to the back of Gray’s head.
“She made no effort to look up or assess or determine his condition,” Mosby said in announcing the criminal charges against her.
White, in an interview with The Sun last year after her criminal charges were dropped, maintained that she did nothing wrong. “I did everything that I was trained to do,” she said.
Her attorney, Ivan Bates, said last year that her interaction with Gray lasted all of 15 to 20 seconds.
Nero and Miller pursued Gray through the Gilmor Homes after he fled unprovoked, and arrested him for having a knife. Along with Rice, they loaded him into the van shackled and handcuffed, but without a seat belt.
Ray Kelly of the West Baltimore advocacy group No Boundaries Coalition, said the news of internal charges shows the police department is taking the concerns of the community more seriously.
“We can’t deny that we now have a visible push for accountability from the police department,” Kelly said. “This is definitely change. It’s a small step, but it’s change.”
He said disciplinary actions against the officers would “bring a perception of justice” to people in West Baltimore. He added that changing state law to allow civilians to sit on police trial boards would add more confidence to the system.
“The people aren’t able to cast a vote about how they should be disciplined,” Kelly said.
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