Freddie Gray Died From The Same Racial Injustice That Will Keep His Neighbors Off The Jury

WASHINGTON -- In July 1991, a California appeals court unanimously agreed  to move criminal proceedings against four police officers charged with assaulting Rodney King out of Los Angeles. The videotaped beating of the 25-year-old black motorist had already set off racial tensions nationwide.

The defense argued that their clients could not get a fair trial in Los Angeles due to the extra-contentious pretrial publicity. So the trial was relocated -- to Simi Valley, a highly conservative and predominantly white city in nearby Ventura County. One Asian, one Hispanic and 10 white people sat on the jury that eventually acquitted the officers -- a decision that led to the infamous 1992 Los Angeles riots .

Lawyers for the six Baltimore police officers charged in the April death of 25-year-old Freddie Gray recently attempted a similar maneuver. In May, they called for their clients' trials to be shifted outside the city, citing fears that national media coverage of Gray's death and the subsequent protests had tainted the jury pool.

Last week, a judge ruled that the criminal trials will remain in the city  for now and that the officers will be tried separately . There's still a chance that the trials could be moved if the judge concludes during juror selection that a unbiased jury can't be seated.

But no matter where the trials take place, residents from West Baltimore -- where Gray lived -- aren't likely to sit on the jury.

Pretrial publicity is a legitimate concern for defense attorneys. Some studies have shown that high-profile media coverage can make potential jurors more likely to believe a defendant is guilty. Jury pools can be tainted  by prosecutors' prejudicial statements, revelations about criminal records, and media images that sensationalize the crime or the alleged perpetrator.

If the defense can demonstrate that pretrial publicity has prejudiced the jury pool against the defendant, a judge can approve what's called a change-of-venue motion and move the trial out of the jurisdiction where the crime allegedly occurred.

This seems unlikely for the Baltimore cops, said Doug Colbert, a law professor at the University of Maryland and a former public defender.

"The media here has been both friendly and sympathetic to the police, and it's also described the community and Freddie Gray's family's pain and disbelief," Colbert said. "You just don't have a situation here where the media has been trying to convict the officers before trial -- and that's not surprising. Police officers, generally, rarely face criminal charges, and they have enormous amounts of community support for the work they do."

Colbert said that in Maryland, the administrative judge of the jurisdiction where the crime is being prosecuted ultimately makes the call on whether a case needs to be moved and on where to move it. "Unfortunately, there's very few guidelines, which surprised me," he said.

Generally, Colbert explained, courts consider the convenience of witnesses, who must travel to another jurisdiction, and look for a place with similar demographics. "This is usual, in the rare instance when a trial is moved, but this is not what is necessarily required here in Maryland," he said.

With the officers accused in Gray's death set to be tried separately, the first trial will be critical, according to Daniel Medwed, a law professor at Northeastern University and a former public defender.

"If the judge cannot impanel a fair trial [jury], then I assume the defense will renew its change-of-venue motion and seek to move the case to a different location in Maryland," he said. "That, I think, might create a precedent for moving the other five cases as well."

The cases have to be tried somewhere in Maryland since the officers have been charged with state crimes. But if not Baltimore, where might these racially charged trials go?

Prince George's County is the only jurisdiction in Maryland with racial demographics that look like Baltimore City's, meaning it would be hard to ensure as diverse a jury pool anywhere else in the state. But majority-black Prince George's County has its own history of police violence . An in-depth investigation  by The Washington Post revealed that police in the county shot 122 people between 1990 and 2001, killing 47. Most of those shot were black, and around 45 percent were unarmed.

The other 24 counties in Maryland are predominantly white.

"The general view is people in Baltimore may feel that this was a vicious crime, and so the defense generally wants to get the case out of there based on the idea that if people are further removed from the city, they might be more objective," said Medwed. "That's the theory, but maybe the underlying goal is to find a jury that might be more sympathetic to the police."

White Americans are far more likely  than black Americans to say police in most cities treat black people as fairly as they treat white people.

Marc Zayon, an attorney representing Officer Edward Nero, expressed hope that Baltimore City could provide his client with "a fair and impartial jury."

"If we can impanel a jury that judges Officer Nero only on the relevant facts of the case and not outside factors, he will be acquitted of all charges," Zayon told The Huffington Post. "The facts of the case will show he has done absolutely nothing wrong."

Lawyers for the other five cops -- including Officer William Porter, whom prosecutors have said they intend to try first  -- did not return requests for comment. It's not known whether any of them will end up opting for a jury trial. They could plead out beforehand or, as Colbert noted, request a judge trial, thereby excluding the direct voice of the community.

If and when the jury selection process goes forward in Baltimore, observers will be keeping a close eye on racial demographics. Sixty-three percent of Baltimoreans are black and nearly 32 percent are white, according to the most recent census data . But according to Colbert, the eligible jury pool (see more on this below) is closer to 50-50. So a racially representative jury would most likely consist of six or seven black and five or six white jurors, he said.

But Colbert suggested that the defense's strategy will be to assemble a less-diverse jury.

"The defense would like a county and a jury that's primarily comprised of white jurors, and a county that is at least perceived to be pro-police and anti-Freddie Gray," he said. "When you have a multiracial jury, then you're going to have a very different conversation."

Even if the racial identity of the jury is about evenly divided and even if the selection process takes place in Baltimore, however, the jurors chosen are not likely to have much in common with Freddie Gray.

Out of 622,104 Baltimore residents, only about 300,000 are even eligible for jury duty. Besides those who are too young or too ill or don't understand English well enough, Maryland generally excludes people with prior felony convictions or those facing felony charges from jury pools. 

West Baltimore, which includes Freddie Gray's neighborhood of Sandtown-Winchester, is home to over half of all people released from Maryland's prison system each year. The violent crime rate there is 23 incidents per 1,000 residents -- almost double the city's rate as a whole and six times the national rate. More than half of the area's residents ages 16 to 64 out of work, and many people end up with minor drug convictions . Gray himself had a number of minor drug convictions , and he reportedly had previous run-ins with the cops who arrested him in April.

West Baltimore was also the site of protests, both peaceful and violent, after his death. If those most directly affected by the protests are largely kept off the officers' juries -- which is a possibility -- Gray's community would have less of a voice in the trials.

Medwed pointed out that for the defense, weighing the racial aspects could be complicated by the fact that three of the six officers are African-Americans.

 "Since there's six different trials," he said, "maybe each defense lawyer -- depending on … the race and role of their client in the incident -- they might have a slightly different view on where they move it to."  

At times there can be a disconnect between officers of any race and black communities. Some studies have shown that black officers tend to be tougher on black people than white officers are.

"The hostility between the African-American community and the police really transcends the individual faces of the officers," Medwed said. "It's more this idea that law enforcement is unfairly targeting the African-American community -- and that's where a lot of the upset comes from." 

Beyond the issue of pretrial publicity, Colbert sees a problem with any implication that largely black Baltimore won't be able to produce an unbiased jury pool. He said black Baltimoreans are capable of rendering justice for -- and even acquitting -- the officers charged with Gray's death.

"Overall, the black community has just a fine sense of justice, of understanding when officers act properly and when they do not -- much more so than the general white community, which instinctively … finds that the police did right or were justified in what they were doing," Colbert argued. 

Prospective jurors will first fill out questionnaires, and then the judge and likely the lawyers will converse with them. Some potential jurors will be eliminated "for cause." For instance, people who are friends or relatives of the victim or the defendants will be removed. People who are or have relatives in law enforcement may be eliminated, as well as anybody with friends or relatives who were killed by police.

But the removal of potential jurors doesn't end there. Since attorneys can use a certain number of "peremptory" challenges to exclude people without giving a reason, jury selection can be biased by the lawyers' "gut feelings" on who might be more or less likely to side with their clients. Gut feelings have a long history of lining up with societal stereotypes and prejudices.

"Of course you're looking for jurors who you believe will be more favorable to your side, but what's easier to do is to eliminate someone whom you believe has already decided the case," Colbert said.

"The truly credible juror," he said, "is one who's struggling with the answer."

What happened before and after Gray's arrest is still unclear, especially the individual degrees of responsibility among the officers involved.

The Baltimore Police Department admitted on April 24 that Gray had not received timely medical care after sustaining a severe spinal injury in custody. He died on April 19. Autopsy reports showed that Gray had a single "high-energy" injury, allegedly caused by a "rough ride " while he traveled in the back of a police van on April 12. Gray was shackled but not secured by a seatbelt, and the injury likely occurred when the van decelerated quickly. His death was ruled a homicide, based on the officers' alleged failure to follow safety procedures.

In May, all six officers involved in the incident were charged and indicted. They face a range of charges. Most seriously, Caesar Goodson, the officer who drove the van, is charged with second-degree "depraved-heart" murder, as well as manslaughter, two counts of vehicular manslaughter and second-degree assault.

Officer Porter, Sgt. Alicia White and Lt. Brian Rice are charged with involuntary manslaughter and second-degree assault. Officers Nero and Garrett Miller also face charges of second-degree assault. In addition, all six are charged with misconduct in office and reckless endangerment. Each of the officers has pleaded not guilty.

So far, this is all the public knows of what happened to this young man. Witnesses must be heard. Evidence must be explained. Context cannot be ignored.

The events of April 12 did not happen in a vacuum. Freddie Gray and the six officers were all products of a society in which police routinely abuse  black communities. A jury that doesn't know that, or refuses to believe it, is not fair or unbiased or capable of doing justice in this case.

Perhaps the problem with moving Gray's trial elsewhere was best summed up in 1991 by a prosecutor named Roger Gunson. Upon hearing that Rodney King's case had been moved to Simi Valley, Gunson, then with the Los Angeles district attorney's office, immediately knew what the outcome would be.

"I have never been so horrified in my life," he said.