Subtle differences after indictment in Freddie Gray case could be sign of shift in thinking

Baltimore State's Attorney Marilyn J. Mosby announces Baltimore Grand Jury's decision to indict the six officers charged in the death of Freddie Gray. (Kevin Richardson/Baltimore Sun video)

The differences between indictments returned Thursday against six Baltimore Police officers in the death of Freddie Gray and the initial charges filed this month suggest prosecutors have refined their approach to the case, legal analysts say — or, possibly, that a grand jury balked at the some of the counts they had sought.

Baltimore lawyers who are not connected to the case say some of the changes could mean prosecutors are focusing less on Gray's initial arrest — which State's Attorney Marilyn J. Mosby said this month was unlawful — while others suggest prosecutors are trying to give themselves a backstop should any part of the case prove faulty.


Mosby moved swiftly to bring charges after Gray died last month of what the medical examiner has said were injuries suffered while in police custody.

While the indictments keep the case moving briskly forward, much about how prosecutors plan to prove the allegations remains unknown. The grand jury process is secret, and Mosby did not take any questions at a news conference Thursday.


Police say the 25-year-old Gray was outside the Gilmor Homes housing project in West Baltimore on April 12 when he saw officers on patrol and took off running. The officers caught him and found him in possession of what they initially said was a switchblade.

Gray suffered a severe spinal cord injury and died a week later.

When Mosby announced criminal charges against the six officers three weeks ago, she said possession of the knife was not illegal in Maryland, and police should not have arrested him.

After Thursday's indictments, the major features of the case appear to be mostly the same.

Officer Caesar R. Goodson Jr., who drove the van that transported Gray, is still accused of second-degree depraved-heart murder, and several officers face charges of manslaughter.

But Lt. Brian Rice, and Officers Edward Nero and Garrett Miller, who were involved in the initial stop of Gray, are no longer accused of false imprisonment. That charge had struck many lawyers as unusual; police said it could leave officers worried that an error of judgment might lead to criminal charges.

What's not clear is why that charge has disappeared. Kurt Nachtman, a former prosecutor in Baltimore, said it was likely the grand jurors did not find grounds to support it.

"You would think if the prosecution handpicked the charges they'd be the same across the board," he said.

But Page Croyder, another former prosecutor, said it was possible that Mosby's office decided the false imprisonment charge was a mistake and did not offer it to the grand jury as an option.

Another change: All the officers now face a charge of reckless endangerment, a misdemeanor with a maximum sentence of five years in prison.

Croyder said adding that count — probably a decision made by prosecutors, rather than the grand jurors — gives prosecutors a fallback charge at trial if they struggle to convince a jury of the weightier offenses.

She called reckless endangerment, which means a defendant did something to put someone seriously at risk, a "kitchen sink" charge.


"This is clearly a shift in strategy by the prosecutor's office," Croyder said. "Adding a charge of reckless endangerment tells me that there are issues about proving the more serious charges."

The filing of an indictment is ordinarily a rote step in a serious criminal case in Baltimore, one that typically happens a few weeks after initial charges are filed. But it's not uncommon for charges to be revised in light of new evidence or a fresh review of the law.

In Ferguson, Mo., a grand jury was allowed to review all the evidence police had collected in the fatal shooting of Michael Brown, and declined to file charges. A grand jury in New York also declined to indict officers in the chokehold death of Eric Garner.

In the Gray case, local defense attorney Nicholas Panteleakis said, it's unlikely the state's attorney's office did much more than call a witness to read a statement of facts in support of the charges.

"You don't outline your entire case in front of the grand jury," he said.

But Nachtman said that doesn't mean the grand jurors merely rubber-stamp prosecutors' cases. Sometimes they ask probing questions that can offer hints about the weakness of a case.

"They do not get shy," Nachtman said.

The next scheduled step in the case comes in July, when officers are due to appear before a circuit judge and enter their pleas.

Before then, Nachtman said, defense lawyers may demand to see evidence and an accounting of the allegations on which prosecutors are basing their charges.

That accounting, called a bill of particulars, would likely reveal the prosecutors' legal theory in greater detail.


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