The charge against the officers of 2nd Degree Depraved Heart Murder is a real stretch in the Freddie Gray Case. Manslaughter is the most appropriate charge under these facts. Here is why:
Second Degree Depraved heart murder is the killing of another person while acting with an extreme disregard for human life. In order to convict, the state must prove (1) that the conduct of the defendant caused the death, (2) that the defendant’s conduct created a very high degree of risk to the life of Freddie Gray, and (3) the defendant, conscious of such risk, acted with extreme disregard of the life-ending consequences.
There is no “intent” to kill or harm requirement for this charge. The term “depraved heart” means something more than conduct amounting to a high or unreasonable risk to human life. The perpetrator must realize the risk his behavior has created to the extent that his conduct may be termed willful. Moreover, the conduct must contain an element of viciousness or contemptuous disregard for the value of human life which conduct characterizes that behavior as wanton.
Thus, if A sets up a target shoot in an empty school lot on a Saturday morning and accidentally kills a child coming onto the grounds, he may be guilty of manslaughter, but that irresponsible conduct does not constitute a depraved heart slaying. If A, however, sets up the target shoot on a school day when he knows children are in and about the school, such conduct established the wantonness necessary to demonstrate that any killing resulting therefrom is attributable to a depraved heart. Therefore, A would be guilty of murder.
A classic example of the depraved heart killing is the shooting of a rifle into a passing passenger train with the result that a person on the train is slain. The same rationale would apply, of course, to shooting at vehicles on the highway.
In laymen’s terms: “To prove 2nd degree depraved heart murder, the police don’t have to have any intent to kill but rather their conduct was so reckless and dangerous that it should not be surprising to anyone that Freddie Gray was killed”. as disturbing as the officer's conduct was, handcuffing Freddie Gray, and putting him unrestrained in a wagon may be cruel and illegal, but one would never expect this tragedy.
Tough to prove under these facts, but most cases are over charged. That is what trials are for. For further information, Steve Silverman can be reached at email@example.com.