Baltimore prosecutors appear prepared to forge ahead with the next trial of an officer charged in the death of Freddie Gray, on the heels of two acquittals delivered by the judge overseeing the case.
The trial of Lt. Brian Rice is scheduled to begin Tuesday with preliminary motions, including defense requests to dismiss the charges. Rice has pleaded not guilty to involuntary manslaughter, second-degree assault, two counts of misconduct in office and reckless endangerment. He is free on $350,000 bail.
Rice, 42, is the highest-ranking of the six officers charged in the case. The most serious charges against him stem from failing to secure Gray with a seat belt when he helped load the shackled 25-year-old into an arrest van.
Other charges relate to his role in Gray's initial arrest. Rice was on bike patrol at the Gilmor Homes complex when Gray fled police, and Rice called out for other officers to pursue him.
Rice is expected to opt for a bench trial, with Circuit Judge Barry G. Williams deciding his fate. In the two previous cases, Williams cleared officers who faced similar or more serious accusations.
In clearing van driver Officer Caesar Goodson Jr. of all charges last month, Williams said: "Even assuming the failure to seat belt caused the death of Mr. Gray, and this Court has already determined there is insufficient evidence concerning that issue, the State is required to show that the defendant was aware of the risk this would — not could — cause, and acted with extreme disregard for the life endangering consequences. Those facts have not been presented to this Court."
Rice participated in loading Gray into the arrest van at its second stop, lifting Gray into the vehicle with the assistance of Officer Edward Nero, who was acquitted of charges at his trial. Goodson had been accused of failing to secure Gray at five different stops.
As for the initial arrest, Rice called out for officers to pursue Gray through Gilmor Homes, but it was Nero and Officer Garrett Miller who answered the request and detained and searched Gray. Nero was acquitted of charges related to the arrest after arguing he had a limited role. Miller is scheduled to be tried July 27.
David Jaros, a University of Baltimore law professor who has been observing the cases, said prosecutors face steep odds but there are reasons they could justify pushing forward. For example, he said, the public has yet to hear the statement Rice gave investigators.
"Because we don't know his statement, we don't know if there's different support for some of the key elements that we couldn't find in the prior trials. We also have a slightly different set of circumstances," he said.
But he was not optimistic about the state's chances. "My guess is that their case is not significantly stronger, and my expectation is this case will play out like the others have," Jaros said.
Before any testimony is heard, Williams must rule on a number of motions, including requests by the defense to dismiss the charges. They've asked for Williams to dismiss the reckless-endangerment count, and separately asked that the whole case be dismissed because of questions raised about the prosecution's investigation prior to indictment.
The defense has filed a slew of such motions, unsuccessfully, since the charges were filed.
Rice was among the recipients of an email from the Baltimore state's attorney's office asking for stepped-up drug enforcement in the area of Gilmor Homes. He was on bicycle patrol the morning of April 12, 2015, when Gray and a friend ran, unprovoked, from the officers.
Critics have questioned why police pursued Gray at all, but prosecutors grudgingly conceded at Nero's trial that officers "probably" were justified under a Supreme Court opinion — Illinois v. Wardlow, which allows police to pursue people who flee unprovoked in a "high-crime area."
Prosecutors also did not allege in court that Nero and Miller wrongly arrested Gray for having a legal folding knife, as they said in announcing the charges last year. The defense argued the knife was not legal.
Instead, prosecutors zeroed in on a roughly two-minute window after Gray was caught and before the knife was found, during which time they said Nero and Miller failed to take steps to discern whether Gray had committed a crime or posed a safety threat to the officers. They did not have grounds for an arrest, prosecutors said.
"Without the legal justification needed to detain a citizen, any amount of force is excessive because the officer in that context has no valid privilege to use force," prosecutors wrote in a recent motion. "Because the state's theory here is that the defendant and his subordinate officers lacked probable cause to use the amount of force they applied against Mr. Gray and for the duration they applied it, the amount and duration of force is by definition 'excessive.'"
Rice was not present for the arrest, but Nero's defense attorney minimized Nero's culpability in part by saying he was acting on Rice's observations.
Rice became involved again as Gray was placed into an arrest van. Witnesses testified that Gray banged around inside the van before it left Gilmor Homes. The van pulled over, stopped, and Gray then was pulled out and placed into leg restraints. Rice and Nero placed Gray back into the van on his stomach, with Rice climbing inside the vehicle.
At the previous trials, prosecutors have said officers were required by Police Department policy as well as common sense to secure Gray with a seat belt. They argued the officers failed in their duty to keep him safe.
Defense attorneys have put forward experts who said officers have discretion not to use a seat belt on a combative arrestee. Attorneys for Nero and Officer William Porter, whose trial ended in a hung jury, also said the ultimate responsibility fell to Goodson as the driver of the van.
"The conduct being charged is akin to handing a person [a] gun knowing the risk the person will pull the trigger — i.e. placing Mr. Gray on the floor of a wagon unrestrained while shackled at his hands and feet knowing the vehicle would soon move," prosecutors wrote in justifying the reckless-endangerment charge.
The trial could feature the testimony of two officers who have been compelled to testify, a process that will complicate future cases should they move forward.
Miller and Porter, who have charges pending, have been compelled to testify at Rice's trial under limited immunity. That process requires a new team of prosecutors, shielded from previous proceedings, to take over their prosecutions.
Last week, Miller's attorneys called for a hearing where prosecutors will have to show that they have avoided information about the trials. They are asking for a special outside prosecutor to conduct the hearing.
Four Baltimore police officers involved in the arrest and death of Freddie Gray are still scheduled to stand trial:
•Lt. Brian Rice (Tuesday): He is charged with involuntary manslaughter, second-degree assault, misconduct in office (two counts) and reckless endangerment
•Officer Garrett Miller (July 27): He is charged with second-degree assault, misconduct in office (two counts) and reckless endangerment
•Officer William Porter (Sept. 6 retrial): He is charged with involuntary manslaughter, second-degree assault, misconduct in office and reckless endangerment. His trial last December ended in a hung jury and mistrial
•Sgt. Alicia White (Oct. 13): She is charged with involuntary manslaughter, second-degree assault, misconduct in office and reckless endangerment