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Home > Journals > Michigan Law Review > MLR FI > Vol. 114

 

Abstract

Who (if anyone) is criminally responsible for the death of Freddie Gray, the 25-year-old African-American man who died from injuries suffered while in the custody of Baltimore police? This question has been at the forefront of the extensive coverage of Gray’s death, which has inspired a national discussion about law enforcement’s relationship with black communities. But it is also a question that may never be fairly resolved for reasons wholly unrelated to the topic of community policing, with which Gray’s death has become synonymous. What may ultimately hamper the administration of justice in the prosecution of the police officers involved in the events surrounding Gray’s death is a textbook problem of substantive criminal law: Maryland’s law of homicide suffers from, as Justice Jackson famously phrased it, “variety, disparity and confusion” surrounding “definitions of the requisite but elusive mental element.” As this Essay explains, Maryland law on the mens rea governing the two most significant homicide charges alleged in the indictment, second degree depraved heart murder and involuntary manslaughter, is stunningly vague. The statutes from which these charges originate are silent on the culpability requirement applicable to each offense, and the interstitial policies the Maryland courts have created to fill in the resulting gaps are a case study in opacity, having been variously described by the state’s own judges as “treacherously ambiguous,” “perplexing,” and akin to “pornography” in that they defy clear definition. But the lack of clarity in this area of law is no mere juridical infelicity; it has the potential to negatively affect the proceedings against the officers by substantially increasing the risk that arbitrary and discriminatory factors influence judicial and jury deliberations over the homicide charges.

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