Most Read
Image 01 Image 02 Image 03

Freddie Gray Trial Day 4: Medical Examiner Cross-Examined by Defense

Freddie Gray Trial Day 4: Medical Examiner Cross-Examined by Defense

Medical Examiner states the official definition of “homicide” is merely a guideline

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.
“Law of Self Defense, 2nd Ed.” /Seminars / Instructors Course / Seminar Slides / Twitter / Facebook / Youtube

DONATE

Donations tax deductible
to the full extent allowed by law.

Tags:

Comments

ugottabekiddinme | December 7, 2015 at 4:31 pm

The prosecutors got the ME to conclude Homicide? This appears to have almost all the characteristics of a “show trial” in the old Soviet Union sense. When will they come for defense lawyers, too?

Once the government can completely intimidate lawyers from defending clients in cases like this one, the American lurch towards show trials will be complete. Sad.

    Gremlin1974 in reply to ugottabekiddinme. | December 7, 2015 at 7:48 pm

    Remember the charges came out the same day as the ME report. At that time there were rumblings that the first draft of the report listed the cause of death as accidental. Then there was some big meeting with Mrs. Mosby and the cause of death was “modified” to accidental but with negligence raising to the level of homicide.

    Once again that is complete speculation and I have no idea if it is true, but it sure fits well with this little drama.

    I wonder how far we are away from these whiners shifting from “Police are to violent” to “why aren’t the police protecting us?” because cops are to afraid to do their job for fear of prosecution.

When none of the cops are found guilty of anything, will it possibly dawn on some people there was no legal reason for them to be charged with anything?

Freddie Gray bashed his own head against the van, and is the only one to blame for his death.

    Gremlin1974 in reply to MikadoCat. | December 7, 2015 at 7:51 pm

    They are gonna get at least one conviction, probably a minor one like misconduct while on duty or whatever it is. That is the whole reason they split it into separate trials, because it increased the odds of getting at least one conviction. (Which gives you a better chance of winning at least one hand in poker? Playing a single hand or playing 6 hands in a row.)

      A combined trial would have been far more advantageous for the prosecution.

      With separate trials, the defense can always point to another defendant as being the one REALLY responsible, and then it’s some OTHER jury’s problem–THIS jury is deliberating only THIS defendant. That could happen in EVERY trial, with NOBODY convicted. God willing.

      Plus, combined trials would have exposed the jury to evidence that’s relevant to perhaps 1/6 defendants, but not the other 5/6, and such exposure would inevitably (and unfairly) taints ALL of them.

      –Andrew, @LawSelfDefense

I expect that “innocent until proven guilty” is also “merely a guideline” for some of these folk.

From a legal perspective — are the conversations between prosecutors and the Medical Examiner privileged communications? Are any intermediate reports or writings of the Medical Examiner subject to defense discovery requests or are these writings considered privileged work product?

Does the Defense have grounds for examining the Medical Examiner, and the prosecutors as to their content, and the nature of any conversations they had?

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

OK, that was GOOD. Getting an expert to adopt the word “theory” can mean a lot to a juror. It is WAY weaker than “my expert opinion” in the minds of most people hearing it.

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.
___________________________________________

Two sides to that…

As Rush (the band) tells us, “If you chose not to decide, you still have made a choice”. Which is logically just true.

OTOH, in the law, there are FEW times when you can be found liable for NOT acting, even to save the life of another you had the power to save.

UNLESS there is a Maryland statute (not a regulation or policy) that imposes a positive duty to act on officers in the same or like circumstances, the whole prosecution should break down.

IMNHO.

    “OTOH, in the law, there are FEW times when you can be found liable for NOT acting, even to save the life of another you had the power to save.”

    CRIMINALLY liable? Under circumstances NOT of your own making?

    I guess I’d need some actual examples.

    –Andrew, @LawSelfDefense

      Ragspierre in reply to Andrew Branca. | December 7, 2015 at 5:53 pm

      We are agreeing, Andrew. I was speaking of “the law” in general, and don’t pretend any expertise in criminal law, as you know.

      Ragspierre in reply to Andrew Branca. | December 7, 2015 at 5:54 pm

      An exception would be, in many jurisdictions, “failure to stop and render aid”.

        Gremlin1974 in reply to Ragspierre. | December 7, 2015 at 8:05 pm

        Are you talking about Good Samaritan Laws or something else?

        “failure to stop and render aid”.

        No offense, but can you show me one of those that would apply to circumstances not of the person’s making? The norm in American law is that no such duty exists. I’m pretty sure every American driver has coasted past a car accident without fear of prosecution.

        –Andrew, @LawSelfDefense

          Ragspierre in reply to Andrew Branca. | December 7, 2015 at 8:30 pm

          Texas Transportation Code section 550.021 states that the driver of a vehicle involved in an accident resulting in the injury or death of another must stop at or close to the scene or immediately return if unable to stop. Under section 550.023, the driver must remain at the scene until he has provided his name, contact information and insurance information and provided reasonable assistance to any injured party. Reasonable assistance includes transporting the injured party to a hospital or making transportation arrangements.

          Note the term “accident”. There’s no suggestion of “culpability” or “volition” or “of your own making”.

          And, again, YES!, it is an exception to the general law, as I stated above. Generally, under the law, we have no duty to aid another. BUT there are exceptions.

          Sure, but again, a person involved in the accident is a person INVOLVED. Perhaps they bear responsibility, perhaps not, but it’s at least theoretically possible.

          That’s far different from a mere bystander who merely SAW the accident.

          If there’s clearly no responsibility for events, there’s no duty to aid and assist, absent some special licensure (master of a vessel, etc.). At least, I’m not aware of any, but, hey, there’s lots of laws out there. 🙂

          In the current context of Freddie Gray, for example, I could imagine a legal duty falling on Goodson, the driver of the van, that would not fall upon Porter, who essentially merely observed events (unless one takes seriously that the failure to seat belt is grounds for involuntary manslaughter).

          That’s one of the reasons it’s good for the defense to split the trials. Porter shouldn’t have to defend himself against legal claims that might be viable against Goodson but not against himself.

          –Andrew, @LawSelfDefense

          DaveGinOly in reply to Andrew Branca. | December 8, 2015 at 12:07 am

          It seems at worst (for the defense) the officer was negligent when he failed to buckle in Freddie, thus allowing Freddie to fatally injure himself.

          Can someone, through negligence, be responsible for another person killing himself? A friend of mine and I consulted an attorney under such circumstances. His wife had tried to commit suicide by overdosing on his prescription meds. When she was taken to hospital, they were in her possession, so the hospital returned the meds to her when she was released, instead of giving them to him. A day later she used the meds (along with other methods simultaneously) to make another suicide attempt, this one successful. The attorney we consulted said he did not have a negligence case against the hospital.

      Char Char Binks in reply to Andrew Branca. | December 7, 2015 at 7:23 pm

      What about when it involves one of the People Whose Lives Matter? Let’s not forget what this is all about.

    Milhouse in reply to Ragspierre. | December 7, 2015 at 5:55 pm

    As Rush (the band) tells us, “If you chose not to decide, you still have made a choice”. Which is logically just true.

    Even so, if the definiton of “homicide” requires a volitional act, and no such act is alleged, then that term should not have been used.

Generally, EVERYTHING used by a TESTIFYING expert is discoverable. Not so much, of course, conversations between the counsel sponsoring them and the expert, but not completely off the table, either. There are levels of even “work product” privilege, and you CAN mess up and blow the privilege altogether. Fraud is one way.

Conversely, NON-TESTIFYING experts are not very prone to discovery requests.

Apparently a black female juror was replaced with a white male juror for health reasons.

Also some neurologist testified that Gray’s injury could not be self inflicted. I wonder how he knows?

Char Char Binks | December 7, 2015 at 7:38 pm

Sorry to go off topic, Andrew, but I finally broke down and bought your book. I just got it in the mail Thursday, and finished reading it Saturday. I hope I never have to to use it for anything except to prevent making stupid comments online, for which it was much needed!

2 points Prosecution just had a discovery violation apparently Mr Freddie had a back injury that was not disclosed by Mosby , Freddie told an Officer a month before he was recovering from a back injury when he noticed he could not sit up right. I can not imagine Mosby doing something unethical. 2.If Freddies injury was between stops 2 and 4 ,how did he sit up on the bench and converse with Porter at stop 4 and survive long enough to be resuscitated 30 minutes later. Also it was confirmed that EMt dispatch sent someone to fix Freddie’s (broken arm) due to a mix up and when she arrived she had to call for additional help , which slowed down his recovery efforts. The defense ought to be able to make some hay out of that also, the delay. I have said from the beginning that their was an extreme lack of leadership here.It appears that this thing was handled as a cya by Chief Batts, Mosby and Rawlings Blake .

Mr Branca appreciate all your posts. I started reading LI with the Freddie Gray posts. I think you will be kept quite busy because , as Mike Mcdaniel said in his blog. Mosby will shake this tree as long as she can, especially with hubby running for mayor. Let’s hope there is something left of Baltimore for his opponent to be mayor of.

Mr Branca appreciate all your posts. I started reading LI with the Freddie Gray posts. I think you will be kept quite busy because , as Mike Mcdaniel said in his blog. Mosby will shake this tree as long as she can, especially with hubby running for mayor. Let’s hope there is something left of Baltimore for his opponent to be mayor of.You would hope after a couple of losers the press and politicians would pressure her to say “uncle” but I am not convinced of that happening.

Gremlin I’m glad that someone provided links . I’m using a new phone never quite figured how to do it yet. If the defense has been able to rip up the ME on cross, can you imagine what the will do with their medical experts . I don’t blame the ME as much as Mosby. You can tell Mosby put the bite on her to change this finding. I see a future AG in a Demo administration in action. It is amazing that every leak and rumor in this case gets debunked and then confirmed. I can not wait for Donta Allen’s testimony ,it is going to be the making or breaking of the case.I noticed the two prosecution medical experts contradicted. Allan said Freddie stood up and fell and banged his head and the other one said he could not get injury by banging his head even ,if he had a preexisting injury. That was a headscratcher!

    ConradCA in reply to dmi60ex. | December 8, 2015 at 5:18 pm

    I thought the autopsy stated that Gray had the same injury that someone would get by diving into a shallow pool and hitting their head on the concrete bottom. That would be self inflicted.

holdingmynose | December 8, 2015 at 6:23 am

It doesn’t matter how effective the defense. The mob must have their victim. Expect a guilty verdict almost as fast as the OJ not guilty verdict.

Andrew, I’m certainly no Lawyer, but if the police have no specific duty to protect the average citizen, why would a policeman have a specific duty to protect anyone in custody?

Prosecution has rested anyone waiting on some real evidence will be disappointed. I bet the defenses medical team will rip them apart.

Richard Aubrey | December 9, 2015 at 10:55 am

Wait. WTF. Withholding possibly exculpatory evidence isn’t a capital crime?

Font Resize
Contrast Mode
Send this to a friend