What to expect from the Gray officer trial boards

It’s not surprising that Baltimore Police Officers Edward Nero and Garrett Miller chose to accept punishment rather than go before a public trial board for their roles in the arrest of Freddie Gray. Although they maintain they did nothing wrong, they are now able to get on with their lives.

From the public’s perspective, though, it’s somewhat disappointing. The investigation into their role in that day’s events compiled by the Howard and Montgomery county police departments will now be shrouded under the state’s protections for personnel records. We don’t know what punishment they received, though both reportedly faced the possibility of a five-day unpaid suspension. Both those who believe the officers are getting off too easily and those who believe they are scapegoats would benefit from knowing what departmental policies or procedures they were accused of breaking and what evidence there was for the charges.

Fortunately, though, Baltimore is poised to get an unprecedented look into the police disciplinary process with the scheduled trial board hearings for three other officers involved in Gray’s arrest and transport, Officer Caesar Goodson, Lt. Brian Rice and Sgt. Alicia White, all of whom reportedly face possible termination. By the nature of these proceedings, we can expect to hear evidence and consider issues that were absent during the criminal cases against the officers last year.

Trial board hearings have only recently been opened to the public, and few accused officers have chosen to go before a trial board since then. The hearings have not previously been publicized to anything resembling this degree, and while the public has been allowed in, it certainly has not been invited. The news that University of Baltimore President (and former mayor) Kurt Schmoke has agreed to hold the hearings in the school’s Learning Commons is an important recognition that Baltimore residents have a profound interest in the fair conduct and just outcome of these cases. At a time when the city is embarking on the implementation of its consent decree with the Department of Justice to rectify a long legacy of civil rights violations by Baltimore police, the public needs to bear witness to the department’s efforts to hold its officers accountable.

Some have questioned why these proceedings are necessary in the wake of the not-guilty findings and dropped cases against these three and their colleagues last year. The answer is that these hearings will consider different questions — whether the officers violated departmental policy, not whether they committed criminal acts — and the evidence and standards of proof will be different.

We don’t know whether the investigators from Howard and Montgomery counties discovered anything different from what city police and prosectors presented at the officers’ trials, though it is worth noting that they took substantially more time to develop their findings than Baltimore police allowed themselves under an artificial deadline set in 2015 by then-commissioner Anthony Batts.

But we can expect, at the least, that we will hear the officers’ own statements about what happened on the day Gray was arrested. The Fifth Amendment does not apply, and defendants in trial board proceedings can be compelled to answer questions — presumably these three already have been. Other rules of evidence are different in trial boards than in court — hearsay evidence, for example, is admissible, so long as it is deemed to be credible. And finally, the standard of guilt is the “preponderance of evidence” rather than “beyond a reasonable doubt.” The judges in the trial board need only determine whether it is more likely than not that an officer violated departmental policy.

What the outcome will be, we can’t guess. But it is at least clear that the Police Department is trying to ensure that the process is credible in the public’s eyes. Bringing in judges from outside of the city should help dispel the appearance that Baltimore police would try to protect their own. (We trust that a dispute with the police union about whether the department improperly coached prospective judges will be resolved in a way that preserves that impartiality.)

Seeking to make the process as public and independent as possible is crucial. Many feared additional violence if the officers were found not guilty in their criminal trials, but the protests that followed were peaceful, likely because the public was able to hear and weigh the evidence and consider Circuit Judge Barry Williams’ explanations for his findings. We need that again. These proceedings aren’t just about whether anyone faces severe consequences for Gray’s death. They are about whether the Baltimore Police Department can begin to rebuild a trusting relationship with the community it serves. That, as much as these three officers, will be on trial in the months ahead.

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