The idea has long been floated that Freddie Gray might have been given a "rough ride" — a practice in which police transport vans are intentionally driven erratically to harm unbuckled, handcuffed detainees.
Now prosecutors have signaled for the first time that they may adopt the theory in the case against Officer Caesar R. Goodson Jr., the driver of the van in which they say Gray suffered a fatal spinal cord injury. Goodson faces second-degree depraved-heart murder charges in a trial that begins with jury selection Monday.
Prosecutors have notified Goodson's attorneys that they intend to call expert witness Neill Franklin, a retired Baltimore police officer and Maryland state trooper who has testified in Annapolis on policing, to talk about "retaliatory prisoner transportation practices." Legal experts said that refers to what is colloquially known in Baltimore as a "rough ride."
"That is a retaliatory, sort of 'teach the guy a lesson' move," said Geoffrey Alpert, a University of South Carolina professor and an expert in use of force by police.
Both the defense and prosecution are barred by a gag order from discussing the case, and retained witnesses are not allowed to discuss their intended testimony.
Goodson's attorneys had sought to block prosecutors from calling Franklin as a witness, but Judge Barry G. Williams denied that motion during a pretrial hearing Wednesday.
The defense argued that the prosecution had "injected a new legal theory or area of testimony at the proverbial eleventh hour" and that the state had failed to define what it meant by "retaliatory prisoner transportation practices."
Franklin is now the executive director of the drug policy reform group Law Enforcement Against Prohibition, a group that opposes the war on drugs.
Williams said prosecutors would be able to question Franklin on his expertise in court before his admission as an expert.
Franklin may never take the stand. Some witnesses listed in pretrial filings are never called. Prosecutors sometimes prepare strategies they never end up using in court.
As part of its internal review of Gray's death, the Baltimore Police Department investigated whether he had been given a rough ride but found no evidence of such treatment.
Gray was unbuckled, handcuffed, placed in leg shackles and driven around West Baltimore for about 45 minutes before he was found unconscious and not breathing in the back of the van when it arrived at the Western District police station.
Six officers have been charged in Gray's arrest and death; all have pleaded not guilty. Goodson is the only one who faces a murder charge, the most serious crime alleged.
In the trial of Officer William G. Porter, which ended last month in a hung jury and mistrial, much testimony was given about Gray's neck injuries — broken vertebrae, a pinched spinal cord — and the force it would have taken to inflict them.
But what exactly happened to Gray in the back of the van was hotly debated, and none of the medical experts for either the state or Porter's defense alleged a rough ride.
Porter testified in his own trial that he told Goodson that Gray needed medical attention at the van's fourth stop. At the van's third stop, video shows that Goodson walked around the back of the van, apparently to check on Gray.
Goodson, an officer since 1999, never gave a statement to investigators. The other five officers did provide statements.
"These cases are complex individually, but when you have a series of them, you've got to play the politics, you've got to play the strategy. It just becomes extremely difficult," Alpert said.
Alpert said alleging that Goodson gave Gray a rough ride or even introducing evidence that the practice happens in Baltimore could help the prosecution prove the charge of "depraved heart" murder.
The Court of Appeals has described depraved-heart murder as "a dangerous and reckless act with wanton indifference to the consequences and perils involved."
The city has settled a number of civil cases in which detainees have been hurt in the back of police vans. In October, Baltimore's spending panel voted unanimously to pay a woman, Christine Abbott, $95,000 to settle a lawsuit that included allegations she was subjected to a "rough ride" in a police van in 2012.
Relatives of Dondi Johnson Sr., who was left a paraplegic after a 2005 police van ride, won a $7.4 million verdict against police officers. A year earlier, Jeffrey Alston was awarded $39 million by a jury after he became paralyzed from the neck down as the result of a van ride. Others also have received payouts after filing lawsuits.
Alpert said that if prosecutors in Goodson's case are developing a rough-ride theory, they will have pulled those cases for review. But proving a rough ride in Gray's case — or in any criminal case — can be extremely difficult, he said.
"Without video, without audio, without other testimony, there's no expert in the world who can say, 'This is what happened.' You can say, 'There is a history. There's a pattern. There's a trend,'" Alpert said. "How you convince a jury that there is proof beyond a reasonable doubt is going to be tough."
Former city police officer Charles J. Key, who is now a consultant and has testified in two previous rough-ride lawsuits in Baltimore, noted that jurors in civil court only must find a "preponderance of evidence" — a lower threshold than "beyond a reasonable doubt" in criminal cases — to rule in favor of a plaintiff.
If Franklin testifies that he witnessed a rough ride as a police officer, defense attorneys are likely to question whether he reported the incidents, which could go to his credibility, Key said. Instead, prosecutors are more likely to ask him to broadly discuss his familiarity with rough rides and any training officers receive.
"That may be the only thing they can try to get him to do," Key said, talking through a possible dialogue between Franklin and a prosecutor: "Are you familiar with what is known as a rough ride? Yes. Are policemen supposed to do that? No. Why not? Because people can be seriously injured."