One of the Baltimore City Police Officers involved in the death of Freddie Gray was charged today with second degree “depraved heart” murder. Under Maryland law, the penalty for this crime is up to thirty years in prison.
There are several legal terms used to describe “depraved heart” murder – “wanton indifference” and “reckless endangerment” are the most common. I think the easiest way to understand “depraved heart’ murder is to think of it like this – a person does something that creates a serious risk of killing someone else, but the person couldn’t care less about the consequences of his actions.
A second degree murder charge does not require the state to prove that a person specifically intended to kill someone else, but the state must show more than negligence. Even gross negligence is not enough to support a second degree murder charge. If the evidence shows only gross negligence, then the appropriate charge would be manslaughter.
Proving a second degree murder charge in the death of Freddie Gray is going to be more difficult than proving manslaughter. An officer may be convicted of manslaughter even if what happened to Freddie Gray was an accident. All the prosecutor has to show is that the officer was so sloppy and incompetent that he was grossly negligent. To convict an officer of second degree murder will require more. The prosecutor must show that the officer was aware that there was a substantial risk that Freddie Gray may die, either from injury caused by the officer or from the officer’s failure to address Gray’s medical condition, and the officer deliberately ignored that risk.
Deliberately ignoring the risk that someone may die because of what you are doing is what we mean by a “depraved heart.” In this case, it means the officer knew that Freddie Gray was seriously hurt and needed help, but the officer just didn’t care. If the officer had that attitude, then he is just as blameworthy under Maryland law as if he had a specific intent to kill Mr. Gray.
Personally, I think the second degree murder charge will be difficult to prove in this case. Juries have a hard time understanding the difference between negligence and reckless indifference and are often hesitant to impose the more severe penalty of a murder conviction unless they are convinced that this officer truly intended to kill Freddie Gray. While I think the officer may have been grossly negligent and probably should be charged with manslaughter, I think a murder charge here is a stretch.
Page Pate is an accomplished trial lawyer with over 25 years of experience in criminal defense, civil litigation, and whistleblower representation. Page is listed in The Best Lawyers in America, Top 100 Lawyers by The National Trial Lawyers, and named to the list of Super Lawyers for the past 15 consecutive years. Page is a frequent expert legal analyst for local and national media and has served as an Adjunct Professor at the University of Georgia Law School. Read Page’s reviews on AVVO. Follow Page on Twitter @pagepate and on Linkedin.