Freddie Gray Trial: HUNG JURY, ALL CHARGES, MISTRIAL DECLARED
Officer William Porter subject to retrial on all four charges
The trial of Baltimore Police Officer William Porter ended in a mistrial today, with Judge Williams accepting that the jury was hung on all four criminal charges brought against Porter in the aftermath of the in custody death of Freddie Gray.
Update: For those curious about what the jury vote breakdown might have been, don’t get your hopes up. The court definitely won’t release an official breakdown (Judge Williams said so explicitly), and the jurors themselves might be inclined to leak the info but they’re technically under a gag order issued by Williams. So, even if one of the jurors does leak they won’t want to be publicly associated with the leak for fear of being held in contempt, so the leaked information can’t be validated.
Officer Porter is, of course, subject to re-trial on all four charges: involuntary manslaughter, second degree assault, reckless endangerment, and misconduct in office. (Update: It’s being reported that the parties will meet before an administrative judge tomorrow to set a date for the retrial of Officer Porter.)
The mistrial must be seen as a stinging rebuke to State’s Attorney Marilyn Mosby, who rushed to charge Porter and six other officers before the police investigation into the matter had even completed. Many legal experts, including myself, have been of the opinion that not only were the prospects for a conviction slight, but that the charges should never have been brought in the first place.
Page Crowder, a Baltimore State’s Attorney for 21 years before retiring, has been perhaps the best-informed critic of Mosby’s impetuous conduct in this case, noting at her blog during the trial:
Baltimore State’s Attorney Marilyn Mosby is getting her rear end kicked
Not by a brilliant defense strategy, but by the facts. Facts that she could have discovered had she conducted herself professionally and ethically.
People with expertise told her – immediately after her dramatic announcement of charges – that she acted too fast, that she could not possibly have known all the facts with her two-week “parallel” investigation, her failure to study the police and medical examiner’s reports, and her failure to use the grand jury or her own experienced homicide division.
…
Her own probable cause statement did not support her sensational indictments. The autopsy report didn’t either, despite it’s legal conclusion (that was clearly influenced by Mosby.) And now the facts reveal that not only are the charges not provable beyond a reasonable doubt, but the officers are actually innocent.
And Attorney former police officer Mike McDaniel, posting at the always excellent Stately McDaniel Manor blog, wrote yesterday:
Nothing I’ve seen relating to the closing arguments in any way changed my opinion of the lack of evidence and the lack of credibility of prosecution witnesses. There was no probable cause to arrest Officer Porter, and no evidence to try him.
The trial of Officer Porter itself was notable for a lack of State’s evidence, other than speculation by their medical examiner, and a wealth of defense testimony that not only generated enormous reasonable doubt but also suggested that if anything Porter had gone above and beyond his duty in dealing with Gray.
In the aftermath of the mistrial we now wait to see how the residents of Baltimore will respond. In the aftermath of Gray’s death protests quickly turned violent, leading to days of rioting, looting, and arson. Local schools had cancelled field trips in anticipation of a verdict, and the Baltimore police placed on heightened alert with leaves cancelled for officers.
The trials for the remaining five charged officers remain scheduled to proceed, with the trial of Officer Goodson, the driver of the van in which Gray suffered his life-ending spinal injury, the next to be placed before a jury.
Keep your eyes here for more coverage of the “Freddie Gray” trials.
–-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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Comments
I’ll risk saying it again…
GOOD! A good result. It shows that jurors could not be cowed, regardless of how outrageous the pressure put on them.
Now the prosecutors have to decided if they want to spend the various forms of capital available to them with another trial.
Proud of the strong jurors who would not “compromise”!
Well at lest one juror.
Maybe, but I find it hard to imagine that a judge is going to declare a mistrial based on one juror’s dissent after only two days.
Why not if that Juror made it clear that they are not going to change their mind?
The one juror, if it is indeed a lone holdout, whether he’s for or against conviction, is no more obligated to consider changing his mind if the facts compel him than are the eleven on the other side.
@ Char Char Binks
I’m sorry, did I give some other impression? No matter what side the juror was on, none of them are compelled to change their opinions if they truly believe that they are correct.
What I was pointing out was that the Judge declaring a mistrial on the second day wasn’t really that surprising. If they are deadlocked and have already been sent back once, what is the point in continuing to basically feed them for nothing.
“I’m sorry, did I give some other impression?”
You kind of did when you said, “Why not if that Juror made it clear that they are not going to change their mind?”. That seems to imply that it’s up to the one holdout to reconsider and probably change his mind, and not the other jurors also needing to make their case and reconsider their own votes. Should a verdict really be about 11 people grinding down one person, possibly the one person in the group who is actually conscientious and reasonable, until he gives in? I’m sure it works that way many times, but it shouldn’t.
Other than that, I agree with you. If the deadlock is hopeless, for whatever reason, they need to scrap it.
Problem is that it is not the prosecution’s money, and they may see the further expenditures as insurance against rioting and keeping their jobs. Responsibility for the trial… accountability for its disastrous abuse of power and the courts… NEVER!!!
Yeah, they already paid the family millions of the People’s money. What a travesty.
It’s a myth to think that prosecutors…even Federal prosecutors…have unlimited money. They just don’t.
But note that there are OTHER forms of capital that the prosecution would have to spend, which are sometimes even MORE limited.
One of those is TIME. Another is public support. Still another is support from the judiciary or judicial officers, like the judge in a case. You can perhaps think of some others.
A courageous jury would have acquitted Officer Porter of all charges. It’s clear that some of the jurors based their refusal to acquit upon hate and fear.
Can the Judge dismiss all charges with prejudice so that the persecution of Officer Porter can be stopped?
Or the scare letter the Board of Education sent home with students, fearing riots, which any jurors who are parents would have seen.
If they retry him, the defense will move for dismissal based on insufficient evidence (which they now know for sure from the first trial transcripts). Either the judge grants the motion or the appeals court will.
Wouldn’t this be what Mosby wanted? I don’t think she’s interested of charging that black officer of anything. Remember, this is about vengefulness against white officers. I think this element is a very vital one causing more trouble here.
Her goal is to gain the support of the BLM movement ie hundreds of thousands of black criminals who hate the police. They want to throw every officer in prison so that they will stop bothering them when their out earning a living robbing, assaulting, raping, dealing, rioting and killing.
Will we get a breakdown of each juror’s vote?
Gag order on Jury
Any info on the vote breakdown?
NO Breakdown
From the post here: “For those curious about what the jury vote breakdown might have been, don’t get your hopes up. The court definitely won’t release an official breakdown (Judge Williams said so explicitly)”
Nor should they, the jury records for this case need to be sealed for at least a year, just for the safety of the jurors.
Great work, Andrew.
Yes, good work!
I am still awe-struck that (at least) one juror insisted on a 2nd degree murder conviction. I will let you lawyers expound, but I understand the an action is required.
Second-degree murder was not among the charges against Porter.
–Andrew, @LawSelfDefense
My bad, involuntary manslaughter.
Officer Goodson, the van driver, another black defendant, next trial, is charged with second-degree murder, among other charges.
Of course, there’s zero evidence of second-degree murder, but whatever, JUSTICE.
–Andrew, @LawSelfDefense
JUSTICE 4 FREDDIE!
JUST-US
FIFY
While I don’t recall the source, I believe I read that Freddie Gray had lived high for a time off the proceeds of another injury lawsuit.
It was reported that another party said that Gray was smashing into the walls of his compartment, apparently setting the stage for another payout.
Freddie Gray should be nominated for the Darwin Award & he has already received justice.
@ rjriley5000
I believe that was found to be inaccurate early on, besides the kind of payout he would have gotten for a minor injury wouldn’t have been that substantial.
I think the charges were involuntary manslaughter, second-degree assault, misconduct in office and reckless endangerment.
Thank you for providing this coverage and analysis, Andrew; and thank you for giving him the platform to do so, Professor.
Proving yet again why this is THE blog to come to if you want to follow criminal trials like this one and the previous ones you’ve covered.
Hear hear.
Agreed.
“subject to a re-trial”
Are the odds of that high, low … depends on the other officer’s outcomes? The driver would seem to be most responsible if Freddie was officially in his charge. So if he is not guilty, no one is?
Mosby said before “I heard your call for no justice no peace”, but maybe she just heard a call for ‘no justice’. maybe the amount of rioting determines how she proceeds (if it is at her discretion). Such a waste of time and such harm to police morale.
I think as long as they don’t get any full acquittals on all charges in any case, the pros. will be emboldened to keep trying. Maybe even acquittals won’t deter them.
Will we see another round of motions for a change in venue or to throw out the case altogether for lack of evidence?
It would seem that the jury pool in Baltimore has only been further tainted by this trial and the protests and media coverage around it.
I see it hard to get anything other than a hung jury in Baltimore. Out of the 12, you just need 1 juror who genuinely carries out their duty to decide based on facts and 1juror who is there to deliver “social justice”, facts be damned, to ensure a hung jury no matter what the other 10 jurors believe.
I don’t. I can see a conviction despite the lack of evidence.
Yes, thank you for the coverage Andrew.
We live only an hour from Baltimore, and with family in the police force it matters a great deal to us what the outcome is of this kangaroo court.
Because of the uncertainty and possibility of a re-trial the masses may not use this outcome as a reason to do some early Christmas shopping.
However, word is that “protesters” are marching to city hall now..
I don’t understand how anyone could work as an officer in Baltimore or any city where the persecutor and other politicians stab them in the back. I would suggest that you advise your relatives on the Baltimore PD to find jobs where they still care about justice, honor and protect their officers from persecution.
Fortunately, my LEO family members are not in the Baltimore PD. They are in different precincts in Maryland that are close by.
It’s just that they get called up to go to Baltimore on “special occasions.”
I say the cops should just keep a low profile and let the Nat. Guard handle things. Maybe we’ll see what Gov. Hogan is made of.
Big question.
Will the defense be able to appeal some of the judges rulings before the next trial?
I don’t think so. They can renew the fight for change of venue but as long as it is the same judge, it’s unlikely to change.
Retrial all the way. Mosby is too stupid to back down. But she is smart enough to realize the case must be tried in Baltimore to have any chance of conviction. See is fortunate to have Judge (no change of venue — let’s compromise) Williams on her team. Look for him to exclude any juror who might have the slightest inclination of acquitting (such as whites) at the next trial.
In a strange way, it’s the same reason that Gil Garcetti chose to try OJ in downtown LA,rather in Brentwood.
For the disfavored innocent, the process IS the punishment. Mosby has for all practical purposes, unlimited resources and Porter does not.
Porter’s resources are effectively no more limited than Mosby’s. The police union is not exactly poor.
If the union’s paying for it, that would be good.
Of course the union is paying for it. That’s what the union is for.
Meanwhile, Porter has no job.
Well, he’s suspended without pay. Once he’s acquitted, does the union contract require reinstatement with back pay? I don’t know, but if I were negotiating a contract I’d put that in.
“The mistrial must be seen as a stinging rebuttal…” Rebuke?
So now what? Will they retry Officer Porter before trying the others? After? Can there be a new motion for a change of venue?
That’s a gray area.
Indeed, “rebuke,” thanks. 🙂
There CAN be a new motion for change of venue, I suppose, but in Porter’s case at least it will go before Judge Williams again.
I don’t know enough about Maryland criminal procedure to know if it could be an interlocutory appeal on the issue to the Court of Special Appeals.
–Andrew, @LawSelfDefense
With respect, darn near anything can go up on interlocutory review. Whether it’s accepted or not is the question. But in WA state, the petitioner seeking cert at least gets to pitch it to a commissioner of the appellate court who can grant cert. If denied, the petitioner can request a 3 judge panel to modify (reverse) the denial. A stay is usually issued for the duration of the appellate proceeding.
Interlocutory review in WA is a public hearing at which reporters are sometimes found. More publicity about the unfairness of it all can only help the defense IMO.
You might want to read a piece in the Baltimore Sin, er Sun if you want to see how the “other side” thinks about this.
It’s long on emotion and distorting of facts, including outright lies.
http://www.baltimoresun.com/news/opinion/editorial/bs-ed-freddie-gray-verdict-20151216-story.html
To wit: “Baltimore police called as character witnesses for Mr. Porter’s defense said that they almost never followed general orders requiring the use of seat belts in police vans, notwithstanding the department’s multi-year crusade to improve compliance or the memo strengthening the requirement that was issued shortly before Gray’s arrest.”
There was no mention anywhere that, up until just a few weeks before poor Freddie’s arrest, the force has not required seat belts for prisoners for well over a hundred years…
Yah, but it is an editorial in a big eastern city newspaper.
You can hardly expect them to be truthful or rational. Or you COULD, but you’ll always be disappointed.
If I remember correctly the seat-belt directive, which was buried on page 10 of a 14 page memo, actually only came out 6 days before Gray’s arrest.
Thanks for all the kind words, folks.
Updated post with a comment about the prospects of learning the jury vote breakdown.
–Andrew, @LawSelfDefense
So will they release a breakdown of the votes for each charge? I.e. Charge A, X votes for conviction, Y votes for acquittal
Charge B…
(Because if they’re 1-11 all the way down, it means a SJW snuck into the jury)
(serves me right for multi-tasking while commenting) With the public pressure on this case, I suspect we’ll see ‘unofficial’ reports on the jury votes inside a few days.
I also think it’s interesting that the judge denied the jury’s request to read transcripts of pertinent testimony. What could they do? They couldn’t make a determination of guilt based on vague recollections. So it seems the judge himself may have actually sealed the hung jury.
They could have paid attention.
There’s some pertinent discussion of that issue on the previous Freddie Gray post, starting with Mr. Branca’s comment here.
When I was on a jury they told us in no uncertain terms to pay attention and take notes, because other than evidence that has been officially entered into the record our notes would be all that we had to go on as far as testimony.
Huh. We weren’t allowed to take notes.
THAT discriminates against the entire class of people who have short-term memory issues. Which also includes potheads. Just saying.
Frankly that’s weird. We couldn’t take our notebooks home, they stayed in our chairs, and the notes were destroyed at the end of the trial.
It may be different from state to state, heck it may even be judge to judge for all I know.
MR. Bianca ,since the prosecution wanted Porter to testify against Goodsen , do you see his trial being delayed and take another shot at Porter first or proceed. Can defence go to appeals for issues on a mistrial prior to retrial.
” It’s being reported that the parties will meet before an administrative judge tomorrow to set a date for the retrial of Officer Porter.”
Can the Administrative Judge put a stop to this by refusing to reschedule the retrial or by other means?
“Can the Administrative Judge put a stop to this by refusing to reschedule the retrial or by other means?”
Well, I don’t practice law in MD, but I rather expect not. 🙂
–Andrew, @LawSelfDefense
Well one could hope anyway.
As much as a “good” outcome as this may be I want to take a moment and remember Officer Porter as well as the other officers who have to continue to live through this nightmare, especially Officer Porter who is looking at the stress of a second trial. Please, Pray, sent positive energies, chant to budda, or channel the cosmic energy towards these 6 men. While it may seem like a good result to us, were I in Officer Porters shoes, I doubt I would see it that way right at this moment.
Lord, thank you for letting me live in fly over country.
I understand the judge gagging the jury, but should it be so broad? I think an order saying that they need to refrain from saying things that might identify the other jurors.
Why is the gag order still apply to the defense? Technically the trial is over. Why doesn’t the gag order apply to the Gray family or their lawyer? I heard the stepdad said something, and the lawyer made a statement. The statement the lawyer made was calm, but still …
Can the press go to court and get the judge to relax the gag order a bit?
This is SO not my area of law, but…
I understand that a judge loses any power over a jury when they are “discharged”, and THAT only happens when a case has been adjudicated.
This one HAS NOT. A mistrial is NOT a determination of the case. It could LEAD to that result if the state decides to dismiss the charges, but until it does, the ball is still in the air.
We can readily see that having more than a dozen people going around to the press with their observations (some VERY loopy) would be prejudicial and potentially tainting to the other venire panels.
I hope you aren’t overlooking the reality that a judge coming down on a juror for yapping might have a “chilling effect” on the population from which jurors are chosen. Because I can promise you that there are certain counties here in WA state where there would be a sudden increase in “unavailability” for jury duty if this happened here.
Question for the learned here: how does one spell “fustercluck?” I know, M-o-s-b-y. Clear to me this broad got her job on looks alone….. sure as shite can’t be legal acumen. 😀 😀
There are several reports that Mrs. Mosby looked “visibly upset” when the mistrial was declared.
Who wants to bet the “visibly upset” translates into pissed off enough for her gaze to melt paint off of the walls.
She was warned this would happen. I see the most likely outcome of a second trial to be a change in venue and/or a rapid acquittal for Officer Porter.
Wouldn’t this hung jury be what Mosby wanted? I don’t think she’s interested of charging that black officer of anything. Remember, this is about vengefulness against white officers. I think this element is a very vital one causing more trouble here.
See my response to your comment from today at 6:43 pm.
Do not forget that the prosecution is limited to the testimony it presented the first time around. Whether they can use additional evidence is not guaranteed.
Where are you getting that? The trial, as I understand, would be de novo, or “brand new”, and there would be no limits on the presentations.
Let’s not overlook the fact that the two prosecutors actually trying this case for Mosby (should we call them Mosby’s Raiders?) are white. Strange there’s no outcry about these white privileged powerful types trying to railroad a black man and ruin his life and put him in prison for trumped up charges?
Wrong Mosby. John Mosby was known as an honorable man.
Oh, I agree, didn’t mean to imply otherwise.
I’m kind of not surprised. I wouldn’t expect them to try and do anything to the black officer. This whole charade is about race and is fed by race baiting politics. With that said, I expect that they will most likely convict the other officers (probably the white officers) of something. That’s my guess.
What you are forgetting is that Porter is a Black Cop, which may as well be spelled “traitor” as far as the race baiting crowd are concerned. It took me a while to understand this because I was raised in the south, we were taught to trust cops, to run to them in danger, to look up to them. Heck, it was nothing for me to come home and find the local state trooper at the dinner table with my mom and stepdad. Last time I went home the chief of police was a guy I went to high school with.
That is not the case in the large urban area’s. I have a friend who is a black man from Detroit and he was very open about the fact that they were taught to never trust cops. In fact he has family members that have basically been disowned because they chose to become cops. Now to clarify my friend does not feel this way and still communicates with these family members, but he takes flak for it.
So while you see Officer Porter as a black man, to them he is just a traitor and they have no problem throwing him under the nearest moving bus.
Wow. That is so unfortunate and sad.
That’s a shame but not really surprising; black cops are “acting white”.
You’re right, this is totally about race, and the primary targets are the white cops. Even if black cops weren’t considered traitors, and they are, the prosecution would still have to go after them, because forensics proves that, contrary to the belief that caused the initial uproar, Freddie was not fatally injured during the arrest, but during the drive with a black cop at the wheel, and after the arrival of two other black cops. The BLM and SJW people, including Mosby, are perfectly willing to burn as many black cops as it takes to get the whites convicted. I think they chose Porter first because they thought he’d be the easiest to convict, and that would grease the skids for more convictions. Their only hope for ANY conviction is in choosing the “right” jurors.
Question for you experts – could the jury have hung on just one of the charges – are we to conclude that they could not be unanimous on any of the charges, or must they be bundled together (and why)?
Every charge is separate. If they’d achieved unanimity on any charge, that charge would have been a guilty or not guilty, and only the non-unanimity charges would be hung.
In this case, the jury failed to achieve unanimity on all four charges, so zero verdicts, all charges subject to retrial.
–Andrew, @LawSelfDefense
Something I don’t know. In a second trial, can the prosecution bring in new evidence, evidence not brought forth in the first trial?
I assume they can, but never thought about it before.
It’s a whole new trial. New evidence can be brought in. Previously admitted evidence could potentially be excluded.
The only real difference is that the testimony from the first trial could be used to impeach in the second trial if any of the witnesses testify differently in the second trial.
Also, of course, both sides now have the experience of the first trial, and a sense for what worked, what didn’t work, could suggest alternative trial strategies to them.
–Andrew, @LawSelfDefense
Thanks for clearing that up.
Behind the scenes. What you don’t see. Is that the commercial real estate is worthless. Who’d want to open a retail business here?
Let alone how expensive your insurance premiums are.
After the Rodney King riots (in LA). (At Florence and Normandy.) There were no stores selling groceries. People were getting on buses to travel 3 or 4 miles. Then? When the old ladies got off at their bus stops gangs of youths attacked them. And, stole their shopping bags.
It doesn’t get better than this.
And? In surrounding communities the latches come off the gun cabinets.
Heck, going back to the Rodney King riots, there’s an east/west corridor at Walnut. One block above Colorado Blvd. Mostly it’s car repair places. And, all the shutters were pulled down. About “day 3” a crowd began forming to run riot. And, one gun shot. From the roof of one building. Aimed at the toe of what looked like the leader; actually ripped up the roadway a bit. And, everybody then turned and ran away.
No. I don’t expect news cameras to capture this. At least because their vans can get attacked. Contains expensive equipment, ya know?
Drones will record the action from now on. We’re in the future now.
Who knows this might give Mosby a chance to postpone this whole charade until after hubbies election or non election for mayor in March. I was surprised she didn’t get this one postponed. She sure tried her best ,She got the trial postponed from Oct by hiding the prisoner who rode with Freddie in the van .
So would somebody with photoshop skills beyond mine create a picture with the title
Who wants to fundamentally transform America?
and pictures of the San Bernardino shooter at the airport with his missus, the prosecutor Mosby, and President Barrack Hussein Obama?
The shooter dude has that pissed off self-righteous look reserved for leftist idiots, as does the prosecutor in the picture way above this comment. Finding “a” sanctimonious picture of the prez disapproving of us shouldn’t be too hard, finding the right one is only a matter of picking one among many. I thought I recognized that look.
I don’t consider a hung jury in the legal absurdity that this case is to be a stinging rebuke to the State. Anything less than a full acquittal in this case is not a rebuke. Let’s not forget that Porter will still be under the gun and this crazy bitch has ruined his life.
This judge is an outrage. I’m wondering if MD procedure would allow appeals to be filed as soon as charges are refilled and the new trial date is set, and I wonder if Mosby will offer the same charges. If she had two firing brain cells, she’d drop the top charge so the State would look more “reasonable” to the next jury.
Somebody should throw a net over Mosby and the judge. His counsel to the jury to “compromise” was so far beyond the pale it left me sputtering.
I didn’t realize the judge spent his career in the Civil Rights Division at the Justice Department prosecuting police officers. Maybe explains why he iOS opposed to a change in venue. It seems like they are doing everything possible to stack the deck against these officers.
phiremin Stacking the deck and still can’t get a conviction. My guess ,if it ever comes out 8 -4 for acquittal and I bet it was stacked by age demographics. Most were over 50, the four younger AA women are the more likely indoctrinated into SJW bs that the system it taking away all the younger AA men ( and possible partners). the older ones would be more sympathetic to Porter as just a cog in the wheel of a poorly administered department , that the brass is throwing under the bus.
I think the judge was misquoted about “compromise”. It probably came from the Allen charge, one of the few things the judge did right.
I am eating crow today. I was sure there would be a rapid guilty verdict on all counts. This is my shamed face. Kudos to whichever jurors took their job seriously, examined the evidence and held out for acquittal.
Well, I was sure they’d take five minutes to acquit, as any reasonable jury would do, so we cancel each other out. I thought the judge was trying to demonstrate that the defense’s fears were overblown, and that justice can be done in Baltimore, but the “compromise” order (if it turns out to be true) shows otherwise.
Mr Branca , I hope you were were serious when you stated you were going to do a goof on Mosby column , I await anxiously!
Maybe he was just goofing.
They couldn’t even agree on “Misconduct in Office”? Even after Judge Williams implored them to “compromise”?
A re-trial is a huge waste of time and money.
Since when does a Liberal democrat worry about a waste of time and money .
At least Jim Garrison, if were so to be alive , would have the consolation of knowing the Clay Shaw fiasco would be overshadowed by the Mosby fiasco
Will the second trial still have the same judge? It seems to me that if another judge is given the case it will be moved almost immediately. If that happens will it put pressure on them to remove the case from Judge Williams and move them as well?
Gmac124 I have read he gets the same judge , of course in Baltimore he may be the best he could get .
Andrew, do you expect Officer Porter to take the stand again in his own defense? I had read that the Prosecution dragged him over the coals during their cross examination, and it was a major mistake for the Defense team to allow him to testify in his own defense. Your thoughts?
“What? We gots to bring evidence an sheeit!?” – Mosby