UPDATE: In response to numerous requests, we provide additional information on the demographics of the jury selected for the trial of Officer Porter:

Three white women (all over the age of 50)
Three black men (all over the age of 50)
Five black women (range of ages)
One white man

And thanks to commenter Ragspierre:  Additionally, three white men and one black man were chosen as alternates.

As we emerge from day two of the Freddie Gray trial of Police Officer William Porter, we have yet to see a compelling narrative of guilt from the prosecution, particularly on the more serious charges brought against Porter.There is no live remote access to the court room, so the information below is largely obtained from the reporting of the Baltimore Sun newspaper:

Porter’s charges stem from his decisions not to seat-belt Gray in the back of the van despite his being handcuffed with shackles on his legs, or failing to provide him medical assistance when he requested it, prosecutors have said. Porter was not the van’s driver, but responded to assist other officers with Gray at multiple stops on the van’s route.

Porter did not personally assist in Gray’s arrest, nor was Porter responsible for the operation of the police van (that duty fell to the driver of that van Officer Goodson). Interestingly, jurors had the opportunity to actually inspect that police van today, when it was towed into the courthouse. Curiously, the Baltimore Sun reports that while the jurors were allowed to closely inspect the van, the vehicle itself was not entered into evidence.

For 160 years (not a typo) the Baltimore Police Department left to the discretion of the officers on the scene whether to belt a suspect into a van (whether horse-drawn or motorized).  In fact, while seatbelt use in passenger cars is now de rigueur, there are perfectly valid and rational reasons for not belting in a prisoner in a police van.  In particular, that belting the prisoner in can lead to greater, not lesser, injuries in the event of a crash. (See my earlier post on this issue:  Freddie Gray Case: Autopsy report further undermines prosecution.)

Then, a mere week prior to Gray’s arrest a new policy was promulgated by the Baltimore Police Department that all prisoners in vans were to be belted in. The prosecution in this trial has argued that Porter was “trained” in this policy, but it appears that “trained” in this context merely means that Porter was sent a single group email, one of scores officers receive from the department each day, and that was in no way particular noteworthy.

As reported by the Baltimore Sun:

[Defense counsel Proctor] said police officers are bombarded with emails, and Porter had never seen the new directives on seat-belting that were emailed just days before Gray’s arrest. Proctor described the police academy as a crash course in police procedures and said officers instead “learn by doing” on the streets.

Even if Porter was adequately apprised of the change in policy, it is entirely unclear whether the duty to ensure that Gray was bucked in was the responsibility of Porter, an officer with only two years on the force, as opposed to more senior officers on the scene or van driver Goodson.  In other words, even if the rule existed, even if the rule was adequately promulgated, even if the legal duty had been created, it remains entirely uncertain whether that legal duty rested with Goodson.

Indeed, today’s testimony suggests that the duty, if any, would fall to driver Officer Goodson, as reported by the Baltimore Sun:

[Defense counsel] Murtha, one of Porter’s attorneys, asked [police academy instructor Officer John] Bilheimer who has responsibility for a person in the back of a police transport van, such as the one in which Gray was injured.

“It lies on the shoulders, it is actually the responsibility of the wagon operator, is that correct?” Murtha asked.

“Yes,” Bilheimer said.

Further more, there was testimony in court today that violations of such departmental policies are generally only the basis of internal discipline of officers, not felony criminal charges against them:

[Academy instructor] Bilheimer acknowledged on cross examination that violations of the department’s general orders are not typically the basis for criminal charges. [Defense counsel] Murtha read Bilheimer a passage of text indicating that violations are only the basis for internal police discipline.

Murtha asked the instructor if that was accurate.

“Yes, sir,” Bilheimer said.

After all, for 160 years prisoners were being driven around unbelted in Baltimore PD vans, presumably with the occasional injury to a prisoner, and yet the department had felt no compelling need to require belting until the week prior to Gray’s arrest.  Even ,when the promulgated the rule the department made no particular effort to emphasize it’s now claimed importance.

If the department didn’t think belting was such an imperative, why would they expect a novice officer to perceive it as such?

So what was the extent of Porter’s involvement with Gray? The police van made several stops from when Gray was initially placed inside until it arrived at the Western District police station.  At the fourth of these stops, according to the Baltimore Sun:

… Porter opened the doors and heard Gray say, “Help.”

[Prosecutor] Schatzow said that Gray told Porter he couldn’t breathe, which the defense disputes.

Porter picked Gray up off the floor of the van, but again did not place him in a seat belt, Schatzow said.

It was only after this fourth stop that Gray suffered his serious injury, and by all accounts likely because of his own conduct of standing or kneeling in the moving van. Again, from the Baltimore Sun:

Gray suffered a high-impact injury to his neck as the van continued, his autopsy states. Prosecutors were not able to pinpoint that moment, but said Gray was likely standing or kneeling when he hit his head with the impact akin to diving into a shallow pool.

I suppose if Gray had been buckled in he would have been denied the option of standing or kneeling. Even so the actual decision of standing or kneeling in a moving van was Gray’s, not Porter’s.  Gray, nor Porter, was in the better position to choose whether it was possible to stand or kneel safely in a moving vehicle while shackled wrists-and-ankles.  It would appear that Gray chose poorly, not that Porter committed involuntary manslaughter.

It’s also notable that Gray was arrested not for probable cause that he was a threat to himself, which might have warranted a more robust duty on the part of the officers to more thoroughly secure him, but merely because Gray was a street-corner drug dealer.  Further, the officers were responding to the neighborhood not on their own initiative but in response to State Attorney Marilyn Mosby’s demands for greater police activity in that particular neighborhood (which, coincidentally, was in her politician husband’s district).

Despite the claim that Gray was severely injured between the fourth and fifth stop, at the fifth stop the van would pick up another prisoner who would describe a quite different scenario:

At that fifth stop the police picked up a second arrestee, Donta Allen, and returned to the Western District police station. Allen was unloaded first, and when police looked in on Gray, he was in the same position as he had been at the fifth stop, [Prosecutor] Schatzow said.

This makes it sound as if Gray was motionless between the fourth stop, where Officer Porter last looked in on him, and the fifth stop.  But that’s utterly inconsistent with statements made to the police by the newly added prisoner, Allen, which in fact suggests that Gray’s injury was suffered by Gray himself hurling his body around the interior of the van, and only after Officer Porter’s last observation of Gray.

As for the question of whether Officer Porter had a duty to call for medical assistance for Gray upon Gray’s request, defense counsel Murtha asked Officer Alice Carson Johnson, who provided Porter with medical response training at the academy in 2013, whether it wasn’t true that the officer on the scene should take into account the circumstances surrounding a person’s request for assistance–for example, that a person complaining of shortness of breath might have just finished trying to run from arresting officers.

Officer Johnson conceded that was the case.

[The following important section has been added at the prompting of commenter Rags:

Another important issue is whether Officer Proctor was even an appropriate person, given his limited training and experience, to determine whether Gray actually needed medical assistance or what degree of medical assistance, as evidenced by the following reporting by the Baltimore Sun:

Medical technicians from emergency medical services, who arrived at the Western District station when Gray was found unresponsive, initially believed he may have suffered a drug overdose, Proctor said.

“If trained EMS misdiagnosed him, how’s a two-year veteran of the force supposed to know?” Proctor said.]

In short, at this point there certainly doesn’t appear to this attorney to be sufficient evidence to convict Officer Porter beyond a reasonable doubt of the criminal charges against him. Of course, the trial has only yet begun, and we await additional testimony and evidence.

–-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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