http://s3.documentcloud.org/document...-documents.pdf
^^^ the charging document for the van driver accused of 2nd degree murder which requires "malice aforethought" .... knowing and intentional disregard for human life.
if you fire a gun into a crowd of people, that is 2nd degree murder. You did not intend to kill any particular person but you knew your actions would likely result in grave bodily harm and/or death to another.
apparently this new order that all arrestees who are handcuffed have to also be secured in a transport van was given 1 week prior.
AT MOST this is negligence. im not even sure it is criminal negligence. Just pure civil negligence.
Joe, if you can comment - would governmental/discretionary immunity apply to a criminal case like this? i imagine not but ive been surprised what the courts have swept under the govt/discretionary immunity clause.
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the charging documents say that Gray surrendered after a foot chase. i thought witness accounts said he was tackled.
my theory is that Gray was tackled and that is when he suffered a partially severed cervical which would allow some function below the level of the injury. he was in a foot chase and adrenaline would cause his neck muscles and soft tissue to harden and hold the cervical spine somewhat in place. the video of him being placed in van shows a person with weak, partial loss of control of his lower extremities, non-weight-bearing legs. the guy clearly had a partial paralysis injury at that moment imo.
a few minutes later, flopping around in a van, some adrenaline wears away = fully severed c spine.
i also find odd the very last sentence of the charging document - the Md State Examiner says Mr. Gray suffered a fatal injury while Gray was unrestrained by a seat belt in the custody of a BDP wagon.
To my understanding an examiner can not say what the factual cause was. The examiner can state what they observed.
Here the charging document walks a fine line. It does not say the Examiner said the fatal injury was caused bc Gray was an unrestrained occupant. It says that the fatal injury was sustained at that time.
I know in a rape trial, the SAFE examiner can say he/she saw vaginal tearing but cannot say such tearing was a result of non-consensual intercourse and cannot say such tearing is consistent or common with non-consensual intercourse.
State Atty greatly overcharged and I think they have the mechanism of injury wrong.
the defense should be easy. They can have a zillion experts/police officers opine that prisoners constantly complain of injury where there is none and that the officers actions, while negligent and unsympathetic, was not done in disregard to human life. it was not depraved indifference. the officers did not actually know Gray had a serious injury. To them it was transport just like any other.
imo, only knowing the bits of news here and there, this will not end well for States Atty office. they dont even know for certain the cause of injury. they are speculating it had to happen in the van. as an officer, i believe they do have an affirmative duty to provide care for injured and the officers clearly did not take his situation seriously ..... but is that malice aforethought?
you have to prove the officers had the specific knowledge that (1) gray had a life threatening spinal cord injury; (2) that they knew that death was foreseeable if they put him in the van handcuffed but not seat belted; and (3) they did it anyway bc they did not care if he lived or died.