Cross-examination of Medical Examiner Carol Allan, continuing from last Friday, was the highlight of this fourth day of the trial of Baltimore Police Officer William Porter over the in-custody death of Freddie Gray. The officer is charged with involuntary manslaughter, second-degree assault, misconduct in office and reckless endangerment.

Prosecutors based these charges on their claim that Porter was negligent for not seat belting Gray into the police van following his arrest, a task the Baltimore Police Department did not officially require for all of it’s 160 year history until a few days before Gray’s injury. They also claim that Porter was negligent because of his alleged failure to seek medical care for Gray when the arrestee asked for help.

The defense argues that mere police regulations are not properly the foundation for felony criminal charges, and that Porter in fact showed concern for Gray’s welfare but did not perceive Gray to be seriously injured until later in the van’s travels to the police station, at which time Porter did request medical assistance.

With respect to the defense cross of Dr. Allan, continued from last Friday, the Baltimore Sun reports:

Joseph Murtha, Porter’s attorney, asked Dr. Carol Allan how she determined Gray was injured between the second and fourth stops of the police transport van in which he suffered a severe spinal cord injury, as indicated in her report, and why she ruled the 25-year-old man’s death was a homicide and not the result of an accident.

Repeatedly, Murtha asked Allan whether her findings were based on a “theory” without specific supporting evidence.

Allan testified that her findings did represent a theory, but one based on her medical expertise and information from various witnesses, including the testimony Porter gave to police investigators.

Last Friday, in response to prosecution claims that Officer Porter failed to provide aid to Gray when Gray told Porter he couldn’t breath, the defense drew from Dr. Allan the concession that if Gray was speaking he was certainly breathing.

Today, the defense delved into the very definition of “homicide,” which was apparently a last minute finding added to the autopsy report after Dr. Allan was spoken to by prosecutors.

Murtha asked Dr. Allan if she was bound by the definition of homicide endorsed by the National Association for Medical Examiners (NAME), which requires a “volitional act.” It is also noteworthy that the Centers for Disease Control’s (CDC) Medical Examiner’s and Coroner’s Handbook defines “homicide” as:

Homicide—Occurs when death results from an injury or poisoning or
from a volitional act committed by another person to cause fear, harm,
or death. Intent to cause death is a common element but is not required for
classification as homicide.

Dr. Allan responded that the NAME definition of “homicide” was merely a guideline.

Poor Dr. Allan also can’t seem to distinguish between “volitional act” and “intent to cause death.” They are two very different things. A volitional act capable of causing serious injury, for example would adequately meet the definition of homicide without also demonstrating an intent to cause death.

There is, of course, no released evidence in this case that Porter committed any “volitional act” whatever with respect to Gray’s injury. All the state has accused him of has been the failure to commit volitional acts they wish to characterize as a legal duties.

Indeed, reports of Allan’s own testimony today indicated that it was an inaction on Porter’s part–his alleged failure to take Gray to the hospital following the fourth van stop–rather than a volitional act that was decisive in her decision to rule Gray’s death a homicide, again from the Baltimore Sun:

She testified that it is “not necessary to have intent” to rule a death a homicide, but that she would not have ruled Gray’s death a homicide had Porter and the van’s driver, Officer Caesar Goodson, taken him to the hospital when they checked on Gray at the van’s fourth stop and found him lying on the floor of the van.

The Baltimore Sun also reports that there was also considerable friction between defense counsel Murtha and Judge Barry Williams, who at one point threatened to hold Murtha in contempt for “testifying.” Judge Williams also chastised Dr. Allan for not directly answering Murtha’s questions.

–-Andrew, @LawSelfDefense


Attorney Andrew Branca and his firm Law of Self Defense have been providing internationally-recognized expertise in American self-defense law for almost 20 years in the form of blogging, books, live seminars & online training (both accredited for CLE), public speaking engagements, and individualized legal consultation.
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