ROBERT SIEGEL, HOST:
When criminal charges were announced last week against six Baltimore police who were involved in the arrest of Freddie Gray, the Baltimore chapter of the Fraternal Order Of Police issued this statement. (Reading) We believe that these officers will be vindicated, as they have done nothing wrong.
Well, they're not the only people who think that convicting the police will be hard to impossible. Steven Levin says the prosecutor overcharged the six. Mr. Levin is a criminal defense lawyer in Baltimore. He used to be a prosecutor, and he's defended several police officers charged with crimes. Welcome to the program.
STEVEN LEVIN: Thank you, Robert.
SIEGEL: And just to be clear, you're not defending any of the six officers involved in the Gray case.
LEVIN: That's correct. I am not representing any of these officers.
SIEGEL: Do you think it'll be especially hard for the prosecutor to convict them of what they've been charged with?
LEVIN: I absolutely do.
SIEGEL: Why?
LEVIN: Well, just looking at some of the charges - for instance, the false imprisonment charges against some of the officers - the allegation is, by the state's attorney, that the officers lacked probable cause to effectuate an arrest against Mr. Gray because the knife he had on his person was a legal knife. Even if that's the case, you cannot just make the jump that the officers lacked probable cause. And that's why it's called probable cause, not definite cause. If the officers reasonably believed that they had probable cause to make an arrest, how does that become a criminal charge if they're wrong? The fact is the law provides a remedy if the officers are wrong, and that remedy is dismissal of charges.
SIEGEL: In this case, it seems nobody followed the departmental rule that a person who's been detained and put in the wagon should be seat-belted in. How difficult does that make to defend these officers against some - some count of criminal negligence for letting somebody rattle around in the back of the van when it's their own department's policy you belt them in.
LEVIN: And that makes for, perhaps, a strong civil suit. But in a criminal case - one of the charges in this particular case is manslaughter by vehicle, and the elements of that charge are that, one - the officer drove the motor vehicle, two - in a grossly negligent manner, three - which caused the death of Mr. Gray. And gross negligence - in the context of a criminal case, it's going to be very difficult, I anticipate, for them to meet that burden.
SIEGEL: I can imagine the prosecutor, you know, saying in some statement in court they may have believed they were making a lawful arrest, although they weren't because we - here's the knife, and that doesn't meet the standard. They may have believed that they were putting Gray in the wagon and he was safe there, although he wasn't. And they may have believed that he didn't need medical help, but he did as they were wrong about that. You're saying no sequence of bad judgments that an officer might've made can amount to criminal liability if the judgments are made sincerely?
LEVIN: I believe that's true, and that's why I believe there's a difference here between civil liability and criminal liability.
SIEGEL: Would the speed with which charges were brought - would that be something that the defense lawyers for these officers would probably introduce in some way in their defense, claiming this was politically motivated?
LEVIN: I would anticipate that the defense lawyers will file a motion for the state's attorney to recuse herself and, as one of the bases, perhaps allege that the state's attorney acted very quickly without conducting a full and fair investigation. I think most people seem to be shocked by the decision to charge so quickly within 24 hours after obtaining a report by the police department.
SIEGEL: Of course, the counterargument to that is it came down very quickly because it was a no-brainer. You take somebody into custody, throw them in the back of a van, and he's dead of what happens to him a week later inside the van under police custody. The people in charge of that van are criminally responsible. That would be the counterargument to that.
LEVIN: It would be the counterargument. I don't think that's the stronger argument. I think the stronger argument is the fact that there was not a fair and full investigation conducted in this case.
SIEGEL: Steven Levin, thank you very much for talking with us today.
LEVIN: Thank you, Robert.
SIEGEL: Mr. Levin is a criminal defense lawyer and former prosecutor in Baltimore. He is not representing any of the officers charged in this case, but we were talking about the issues involved in prosecuting them. Transcript provided by NPR, Copyright NPR.
