[Correction: An earlier version of this post characterized the defendant, Officer Porter, as the driver of the police van in which Gray was riding. In fact, the driver of the van was Officer Goodson. Porter’s role has been corrected, below.]

Yesterday jury selection began in the first of the six expected trials over the in-custody death of Freddie Gray.

This first case tries 26-year-old Officer William Porter, who like Gray is black. The trial is being presided over by Judge Barry G. Williams, who is also black. (I mention the races of those involved only because the case has been racially-charged from the first riots.)

Unfortunately, Maryland does not allow cameras in the court room, and even reporters who are present are permitted to access electronics (and thus tweet, etc.) only on breaks, so we don’t expect there will be much of the blow-by-blow coverage we’ve done in other high-profile trials. (Reporters in the overflow room also cannot use electronics, but are permitted to enter and exit as they please.)

Nevertheless, a few general observations can be made based on yesterday’s reporting.

Protestors Chants Heard Clearly in Court Room

A major issue in all these trials has been whether, due to the extensive riots and looting that erupted in Baltimore a week after Gray’s death and continuing for many days thereafter, it would be in the interests of justice to change the venue of the trial to a location outside of the city. Defense attorneys for the six police officers to be tried have made repeated motions for a change of venue.

The most comprehensive of the defense motions for a change of venue, on behalf of all six officers, is embedded at the bottom of this post, and lays out the defense rationale in great detail.

All defense motions for a change of venue have been rejected by Judge Williams, whose position is that it cannot be known if an impartial jury can be found in the city until the effort has been made.  That effort began yesterday with voire dire of 75 prospective jurors, and continues to day with a similar number. Ultimately 12 primary jurors and about 4 alternates will be chosen.

Yesterday’s reporting, however, notes that the protestors’ chants (presumably electronically amplified) outside of the court house could be heard inside the courtroom. As noted by the Washington Post:

Chants from demonstrators — standing outside in the cold, light rain — filtered into the marbled courtroom: “We won’t stop until killer cops are in cellblocks.”

And by CNN:

Inside the courtroom, the chants of protesters outside could be heard clearly …

And also noted in this tweet by Justin Fenton of The Baltimore Sun:

Protestor chants 12-1-15

At least some in the crowd also don’t appear all that interested in justice, unless justice is defined strictly as resulting in a conviction:

The Washington Post quotes one protestor, 66-year-old Sharon Black:

We’ve been out here, primarily to keep the pressure on. We want not only for these officers to be indicted, but that they be convicted …

As noted in the defense motion (embedded below), the legal standard in Maryland for a change in venue is set out by Maryland Rule 4-254(b)(2), which reads in relevant part:

When a defendant is not eligible for the death penalty and either party files a suggestion under oath that the party cannot have a fair and impartial trial in the court in which the action is pending, the court shall order that the action be transferred for trial to another court having jurisdiction only if the court is satisfied that the suggestion is true OR that there is reasonable ground for it.

(emphasis added)

It certainly seems incontrovertible that given the extensive riots, the ongoing protests demanding a conviction, and the fact that those ongoing protests are clearly audible in the court room do not provide at least a “reasonable ground” for the suggestion that a fair and impartial trial cannot be had in Judge Williams’ courtroom.

State Has Still Not Shown Any Evidence to Support Most Serious Charges

Another fascinating facet of this trial, and indeed of all the planned trials, is that the state has yet to set out in anything resembling detail exactly what it is the officers did or did not do that supports the charges against them.

In the case of Porter, for example, he was the driver of the van in which Gray apparently suffered the spinal injury that would presumably lead to his death some days later.

Porter was one of the officers who took a look at Gray during one of the stops that took place on the way to the police station. At the time Porter examined Gray, Gray had not yet suffered any serious injury. Prosecutor Mosby characterized Porter’s conduct as follows, as reported by the Baltimore Sun:

According to Baltimore State’s Attorney Marilyn Mosby, Gray twice asked Porter and the van’s driver for medical assistance and complained that he was having trouble breathing. Yet Porter did not call for a medic. He helped Gray up off the floor of the van and placed him back on a bench without strapping him into a seat belt — a violation of department policy.

Porter is charged with involuntary manslaughter, second-degree assault, misconduct in office, and reckless endangerment.

Yet, as CNN notes, to date there has been no specification of exactly what any of the officers did or did not do to justify the more severe charges against them:

Still to be answered is one of the most troubling questions in this case: How exactly was Gray injured? Was he the target of a “rough ride,” a reputed police tactic reserved for particularly resistant suspects?

The fact is that nobody knows, or if they know they’re keeping the evidence to themselves.

There has been no evidence released to date that indicates any such “rough ride” took place, nor that Porter any of the officers engaged in another conduct, or breached any other legal duty, that could support a charge of, for example, second-degree assault. Did Porter give Gray Was Gray, in fact, given a “rough ride”? The State’s not saying. Certainly, one would expect that if they had evidence of such misconduct they’d be shouting it from the rooftops–there’s no benefit to keeping such information concealed.

Perhaps that’s why in a poll taken by the Baltimore Sun this past June, almost 90% of respondents indicated that they believed prosecutors lacked the evidence necessary to support the harshest charges against the officers.  To my knowledge, no substantive new evidence has been released since that poll was taken.

Baltimore-Sun-Freddie-Gray-poll-620x422

Indeed, all the evidence publicly released to date is utterly consistent with Freddie Gray having effectively killed himself, managing to get to his feet while shackled at his wrists and ankles, only to fall and injury his spinal cord when the prison van in which he was riding changed speed or direction.

Watching the prosecutors attempt to have an impartial jury find these defendants guilty beyond a reasonable doubt, especially of murder and manslaughter and aggravated assault, when there exists an equally probable theory of events consistent with innocence should be an interesting spectacle.

This curious lack of evidence to support the charges, as well as Judge William’s refusal a change in venue,  have also been noted by Page Croyder, who spent nearly 21 years with the Baltimore State’s Attorney’s Office before retiring from that agency in January 2008, and who has commented on the Freddie Gray case numerous times at her blog, Baltimore Criminal Justice Blogger:

Legally speaking, Judge Williams should have moved the trials out of Baltimore. If ever there was a set of circumstances for changing venue, this was it. Not because of the publicity but because of the riots that followed in the wake of Gray’s funeral, riots that specifically affected Baltimore city only. Those riots were credited by many with the decision of Baltimore prosecutor Marilyn Mosby to hastily charge six police officers with criminal charges, including murder, despite the fact that nothing in her probable cause statement or the autopsy report supported murder. If the top prosecutor, whose sole job it is to follow the facts and the evidence, was influenced by the unrest, wouldn’t the citizens of Baltimore be similarly influenced?

(Emphasis added)

I encourage you to read all that Attorney Croyder has written on the Freddie Gray case, as I find it’s particularly insightful given her local knowledge and experience working in the Baltimore State Attorney’s Office.

Follow Legal Insurrection for Ongoing Freddie Gray Trial Analysis

There is much else curious about these Freddie Gray prosecutions, indeed far too much to cover in a single post. My colleagues here at Legal Insurrection and myself have, of course, covered many of these curiosities before, and you can click here to access those aggregated Freddie Gray posts.

We will, of course, keep covering this, and the successive, Freddie Gray trials as they proceed, so keep your eyes right here at Legal Insurrection.

And, as promised, here’s that defense motion for change of venue:

–-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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