Civil rights investigation into Freddie Gray's death unresolved as Trump takes office

What will happen now with Justice Department investigation into Freddie Gray's death?

In one of her first acts on the job in 2015, U.S. Attorney General Loretta Lynch called for an end to rioting in Baltimore by promising an independent civil rights investigation into the death of Freddie Gray, the 25-year-old black man whose fatal injuries in police custody had provoked the unrest.

"We will continue our careful and deliberate examination of the facts in the coming days and weeks," she said. Her top deputies promised the work would be done "expeditiously."

Now, two years later, Lynch has left office without having completed the investigation, and without providing an update on its status.

Officials in the Justice Department's Civil Rights Division, the FBI and the office of Maryland U.S. Attorney Rod J. Rosenstein all declined to comment on the case this week.

Meanwhile, President Donald J. Trump's inauguration ushers in a new administration seen as less likely to pursue charges against police officers. Trump has called Baltimore State's Attorney Marilyn J. Mosby's failed prosecution of the six police officers involved in Gray's arrest "a disgrace."

The open federal investigation involves federal agents and prosecutors reviewing evidence to determine whether individual officers criminally violated Gray's civil rights. It is distinct from the broad Justice Department investigation that determined this summer that Baltimore Police routinely violated individuals' rights, and which resulted this month in a consent decree mandating police reforms.

What will come of the civil rights investigation into Gray's death is unclear, though some observers said its fate is sealed under Trump. Many said resolution is important regardless of the outcome.

The Baltimore Police Department has repeatedly cited the ongoing federal review in denying public records requests by The Baltimore Sun, including for the case file from its investigation into Gray's death and for any correspondence it has received about the case from the Justice Department or the FBI. The police department said the Justice Department requested the information be withheld because the civil rights investigation is pending.

William H. "Billy" Murphy, the Gray family's attorney, said he and the family "haven't heard a thing — not a peep — about the status" of the investigation.

An internal police investigation of the officers' conduct by the Howard County Police Department is ongoing.

Legal experts say the silence surrounding the review likely belies robust conversations among federal investigators and prosecutors in recent weeks on whether to announce a decision about charges or cede that decision to the incoming Trump administration.

While Lynch, appointed by outgoing President Barack Obama, has made police reform a major focus of her tenure at the Justice Department, Trump and his nominee to replace her, Sen. Jeff Sessions, have expressed skepticism of those efforts.

The Trump transition team did not respond to a request for comment on the pending Gray investigation, but Trump has been outspoken on the Gray case in the past.

In a press conference on the July day Mosby announced she would be dropping all remaining charges against the officers after three were acquitted in Baltimore Circuit Court, Trump called Mosby a "disgrace to the world of prosecutors" for bringing the charges.

"She should prosecute herself," he said. He also said the officers deserved "a lot of respect, a lot of credit" for fighting the charges.

Norman Siegel, a prominent civil rights attorney in New York with experience in federal civil rights cases, said it is regrettable that Lynch "let the clock run out" before making a decision in the Gray case or, separately, in the case of Eric Garner, who died after he was put in a choke hold by a police officer in Staten Island, N.Y.

"They've had enough time to make the call as to whether or not federal civil rights charges should be filed against the officers, both in New York and Baltimore," Siegel said.

Steven Levin, a former federal prosecutor in Baltimore, said the Obama administration had "a responsibility to address the Freddie Gray investigation" before Friday, even if to say it hadn't been finished.

"They are doing a disservice not just to the Trump administration but to the people of Baltimore and the people of Maryland by not resolving the case or at least being transparent about their investigation before the end of their administration," he said.

Levin — whose law partner, Charles "Chad" Curlett Jr., has launched a campaign to unseat Mosby in the state's attorney race next year — also said federal investigators are likely having a harder time assessing the facts in the Gray case because Mosby, in his opinion, rushed to judgment and filed the state charges against the officers before fully understanding what had occurred.

"The state, by rushing to its judgment and its indictments, may have compromised the integrity of certain evidence, may have overlooked evidence that now, perhaps, no longer exists," Levin said.

Mosby in recent months has proposed boosting federal involvement in local police misconduct cases, saying their oversight would "buttress the public trust in the process."

In a statement this week, she said Baltimore residents "deserve to know whether Freddie Gray's civil rights were violated" and that she is "cautiously optimistic that regardless of who is in office, the Department of Justice will place politics aside and uphold the ideals of justice by conducting a thorough investigation to arrive at the truth and bring closure for the citizens of this great city."

Gray died in April 2015 from severe spinal cord injuries suffered while in police custody. His death was followed by widespread, mostly peaceful protests. On the day of his funeral, rioting, looting and arson broke out. Mosby announced the state charges against the officers days later.

When she dropped the last of the charges last summer, the Justice Department said it had been "monitoring the state's investigation and trials" along with the FBI and Rosenstein's office, and that it would continue its "independent review of this matter, assess all available materials and determine what actions are appropriate, given the strict burdens and requirements imposed by applicable federal civil rights laws."

To secure a conviction in such cases, federal prosecutors must establish that an officer willfully violated a person's civil rights, which is not easy, experts said. Mosby's inability to prove the officers intended to injure Gray helped sink her cases against them in state court.

In acquitting Officer Edward Nero of all charges, for example, Circuit Judge Barry G. Williams said, "There has been no information presented at this trial that the defendant intended for any crime to happen."

Levin said the fact Williams "so successfully dismantled the state's theory when it came to intent" indicates federal charges will not be filed.

Sherrilyn Ifill, president of the NAACP Legal Defense and Educational Fund, said she and many others in the civil rights community "had hoped that we would have had a conclusion one way or the other" in the Gray and Garner cases by the time Lynch departed, "but at the same time we are waiting very soberly, because we understand that the standard in the federal civil rights cases is a high standard."

Ifill said what she is "happy about is that the findings about systemic, unconstitutional policing in Baltimore were handled as expeditiously as possible, and have resulted in a consent decree that is now in the hands of the court."

Michael Belsky, the attorney for the highest-ranking officer charged in the state case, Lt. Brian Rice, said his client was found not guilty in state court "following a fair and thorough trial before a judge who was experienced in investigating, evaluating, and prosecuting federal civil right cases against law enforcement officers," and that he is "optimistic" that federal prosecutors will reach the same conclusion.

Williams, who presided over all the state trials, previously investigated and prosecuted police misconduct cases for the Justice Department.

Joseph Murtha, an attorney for Officer William Porter, who had a mistrial before Mosby dropped the charges against him, said they "continue to steadfastly maintain" that Porter did not violate Gray's civil rights or contribute in any way to his injuries.

"It is our hope that there will be no further investigation," Murtha said.

It isn't clear how the Trump administration will approach the Gray case, if it intervenes at all. It could leave the case entirely in the hands of lower-level Justice Department officials. It could also look to Rosenstein for guidance.

Rosenstein, whose office has successfully prosecuted police officers on civil rights charges in the past and has been involved in the Gray investigation from the start, is being considered for a "top position" within Trump's Justice Department, according to two sources familiar with the discussions. If he were to be appointed to such a position, his opinion of the case could hold increased sway.

Legal experts said that may be a good thing.

"Generally what we've come to hope for is to be able to present facts in situations like Eric Garner and Freddie Gray to people — whether they are in a judicial position or an administrative position — who will be able to listen to the facts and assess them fairly," Siegel said. "It sounds like he might be familiar with the case, with the facts, with the issues."

Levin, who worked for Rosenstein as a federal prosecutor before leaving to open his own law firm, said Rosenstein is "not a political guy" and will assess the Gray case on the facts, from whatever seat at the table he occupies.

"He's a straight shooter," Levin said, "and he'll call it like he sees it."

Baltimore Sun reporters Justin Fenton and Catherine Rentz contributed to this article.

krector@baltsun.com

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