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To judge Gray officers, go outside BPD

Five of the six officers charged in the Freddie Gray case are having discipline actions brought against them, including three who face termination. (Baltimore Sun video)

Though we still don't know the details of what investigators from the Howard and Montgomery county police departments found in their lengthy review of the arrest and transport of Freddie Gray two years ago, the potential discipline faced by the officers involved tracks with what we do know about the level of involvement each had in the events leading up to his fatal injuries. The driver of the van that carried Gray, the supervising officer at the scene of his arrest and the sergeant called to check on him after witnesses complained about his arrest all face possible termination. The two officers who made the initial arrest could be suspended for a week each, and the sixth officer — the one who told others that Gray might need medical attention — was cleared. But whether the outcome will be viewed as fair by all those with a stake in this case — both in the community and within the police department — depends on how the process plays out from here.

The officers have the option of simply accepting the recommended discipline and ending the cases right here. That might be the best option for the two arresting officers, Edward Nero and Garrett Miller. With five days' suspension, they can get on with their lives. It would also mean that the public might never know the specific nature of the policies they are alleged to have broken or the findings of the investigations into their conduct, but unfortunately, that is the reality of Maryland's legal protections of public employee personnel records.

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The question is whether they will face internal pressure to fight the charges; many rank-and-file members of the department viewed the end of the criminal cases against the six officers as proof that the attempt to hold them accountable for Gray's death was politically motivated. During the criminal cases, the officers each had their own legal teams, but up to this point in the administrative process, they have all been represented by a lawyer from the Fraternal Order of Police. However, their interests likely now diverge. None of the officers willingly testified against the others during the criminal trial, but the stakes as well as the protections they are afforded against self-incrimination are different in an administrative proceeding.

We would be surprised if the three officers facing termination — Officer Caesar Goodson, Lt. Brian Rice and Sgt. Alicia White — don't choose to take their cases to trial boards. A recent change in state law requires that their hearings be open, so the public will be able to evaluate the evidence against them and the strength of their defenses, but that doesn't guarantee that the proceedings will be viewed as legitimate. Some jurisdictions allow trained civilians to serve on those boards, but despite the efforts of Mayor Catherine Pugh and Commissioner Kevin Davis, Baltimore does not. It is barred by the department's collective bargaining agreement, and FOP officials have fought to keep it that way during the current contract negotiations. Ms. Pugh's efforts to force the issue through state legislation have been unsuccessful. Maryland's Law Enforcement Officers Bill of Rights requires that at least one member of a trial board be of the same rank as the accused officer, and given the vociferousness with which the FOP continues to insist that these six officers did nothing wrong, the objectivity of such a body could readily be called into question.

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But there is an alternative. State law also allows the police commissioner to seat trial board members from another law enforcement agency. It's not unusual for police chiefs, particularly from small departments, to make that decision to ensure the proceeding is free from bias. Just as Commissioner Davis rightly concluded that an administrative investigation of the officers would be questioned if it was conducted by members of the BPD, he would be wise to seek an outside trial board to hear the cases against them. Those facing discipline would still be judged by fellow law enforcement officers but ones with some distance from the situation.

Many in Baltimore were disappointed that no one was held criminally responsible in Gray's death, but despite fears of renewed unrest after each verdict, the city remained largely calm because residents were able to see for themselves that the jury in the first trial and Judge Barry Williams in the subsequent ones followed the evidence where it led and drew conclusions accordingly. Whatever the outcome in these administrative hearings, we need another process we can trust.

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