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Freddie Gray Trial: Defendant Officer Porter Testifies

Freddie Gray Trial: Defendant Officer Porter Testifies

Porter: It wasn’t until last stop that Gray in obvious genuine distress, at which point medic was called

Today the defendant in the “Freddie Gray” trial, Police Officer William Porter, took the stand from about 11:00am to 3:30pm to testify on his own behalf.  He testified both on direct examination by his defense attorneys and on cross-examination by prosecutor Schatzow.  (The following recounting, and particularly any quotes, is largely based upon the periodic tweets sent out by journalist Justin Fenton from his live Twitter feed (@justin_fenton) and from his end-of-day Baltimore Sun post with colleague Kevin Rector.  My independent remarks are in parenthesis.)

Direct Examination

Direct examination of Porter was begun by defense counsel Murtha.  He asked why Porter had not called for medical attention for Gray early on in the encounter, and Porter replied that he did not do so because Gray “was unable to give any reason for any kind of medical emergency,” and  because he couldn’t see any visible signs of a need for medical attention.

Asked why he didn’t seatbelt Gray into the van, Porter replied that no one gets a seat belt. He went on to explain that he has participated in one manner or another in 150 arrests involving a police van, and has never seen any suspect belted in.

He also noted that the vans are very cramped, necessarily placing him in immediate proximity to the suspect with little freedom of movement, and of course he has a firearm on his side towards the suspect.

Porter described the Baltimore Police Department as poorly staffed, explaining that on the day of the incident they were supposed to have 17 officers but only had 10, and they were supposed to have three to four sergeants but only had one.

Porter testified that he heard Gray yelling during the arrest that he couldn’t breath & needed an inhaler. (It goes without saying, of course, that anyone “yelling” is in fact necessarily “breathing,” and its unclear where an inhaler was supposed to come from; did Gray have one on his person, were the police supposed to have their own on hand?)

Asked about the prosecution’s suggestion, supported by the testimony of state’s witness Detective Syreeta Teel, that Porter had previously stated that he’d heard someone mention that Gray was having difficulty at the fourth stop of the van, Porter replied “Absolutely not.”

The only time he heard someone mention Gray’s respiration difficulties, Porter testified from the stand, was at the first stop of the van, shortly after Gray’s had fled on foot in an effort to avoid arrest.  (Thus there was a non-traumatic explanation for why Gray might be having difficulty breathing.)

At one point Murtha had Porter act out for the jury how Porter had observed Gray inside the van at the stop where Porter had helped Gray up from the floor to the bench.  Murtha got on the floor on his stomach, his hands clasped behind him as if cuffed.  Porter hooked his right arm under Murtha and lifted him.

Porter also testified that arrestees often feign injury and demand medical attention in the hopes of avoiding arrest or at least of going to the hospital rather than the police station, then give up on the effort once they realize the ruse isn’t being bought.

At a later stop, the stop at which additional arrestee Donta Allen is added to the van, Porter checks on Gray and asks if he still wants to go to the hospital.

At one of the later stops Porter observed Gray unresponsive int he back of the van, with mucus around his mouth.   Porter says at this point he tried to stabilize Gray’s airway. (My apologies, folks, journalist Fenton simply isn’t clear on which stops were which, which is a shame because at one point of the testimony they apparently talked through each of the six stops.)

Porter testified that he held Gray until a medic arrived, which wait “felt like an eternity.”

Porter testified that his first thought was that Gray was experiencing a drug overdose (Gray was a known drug user and dealer in the community; during the state’s case one of the responding medic’s testified that they, too, first suspected Gray was experiencing an overdose, and injected him with medication intended to counteract opiates; opiates tend to suppress respiration.)

Porter: “It was a very traumatic day for me, also . . . just seeing him in the neighborhood every day.”

Defense counsel: “Are you sorry Freddie Gray is dead?”  Porter: “Absolutely. Freddie Gray and I weren’t friends. But we had a mutual respect for each other and had built a rapport. … Any loss of life, I’m sorry to see that.”

Cross-Examination

Starting at about 2:00pm Porter was cross-examined by prosecutor Schatzow, in what was described by journalist Fenton as a “tense exchange” that would last for about 90 minutes.

Earlier in his testimony Porter had testified about a “no snitch” culture in the Baltimore criminal community, and Schatzow now tried to suggest the same existed in the Baltimore police community.

Schatzow: Is that a culture of the Baltimore Police Department?”

Porter: “Absolutely not. I’m actually offended you would say something like that.”

When apparently pressed by Schatzow about why Porter didn’t provide more detailed information when first interviewed, Porter replied that he did give the names of every officer there, but that he wasn’t sure of each officer’s specific actions at every moment and did not want to provide misinformation.

Schatzow continued to press Porter on why he seemed able to provide more detailed information later than he did at the time.

Porter: “I thought I was a witness not a suspect. … I didn’t know I needed to defend myself.”

At this point Schatzow apparently produced a training document signed by Porter at the academy, two years earlier, which read “we do not transport injured people, call medic.”  (More relevant than a pro forma form, of course, is the actual practice of the Baltimore Police Department.  It is also noteworthy that prosecutor Schatzow produced no similar form bearing Porter’s signature referencing the department’s newly adopted seatbelt policy.)

At that point Schatzow appears to have driven off into emotive land:

Schatzow: “You said engrained in you as a police officer was to protect life … But on April 12, 2015, you didn’t protect Freddie Gray’s life.”

Porter: “Untrue.”

Re-Direct

The defense followed up immediately with re-direct of Porter, asking why Porter said it was untrue that he didn’t protect Freddie Gray’s life.

Porter: “It’s untrue because Freddie Gray wasn’t injured then. It’s just that simple.  Had he been injured, I would have called for a medic.”

Porter also re-emphasized that he was “offended” by prosecution suggestions that cops routinely lied, especially given that it was so often that the prosecutors themselves relied upon police testimony in court.

–-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

“Absolutely not. I’m actually offended you would say something like that.”

While that’s a fine, human answer…

I teach my witnesses to give a TRUE but FLAT Yes or No on cross. Don’t give the other side any emotion to feed on.

It’s my job on re-direct to get to the emotion and have them elaborate on their story.

Witnesses. #eyeroll 🙂

–Andrew, @LawSelfDefense

What do you make of the change in the story of Grey saying he couldn’t breath at stop 4?

I know that Porter hasn’t been changing it. After the initial interview he hasn’t said anything till now. It has been the story though. How is the jury going to react to the change?

    CalFed in reply to HandyGandy. | December 9, 2015 at 8:18 pm

    “What do you make of the change in the story of Grey saying he couldn’t breath at stop 4?”

    As far as I can tell, there is no evidence that Grey said that he couldn’t breath at stop 4.

    Detective Teel testified that Porter had said that, but had not recorded the statement. Porter flatly denied saying it.

    “Asked about the prosecution’s suggestion, supported by the testimony of state’s witness Detective Syreeta Teel, that Porter had previously stated that he’d heard someone mention that Gray was having difficulty at the fourth stop of the van, Porter replied “Absolutely not.”

Sounds like the defense did a good job of humanizing Officer Porter, which needed to be done. At least there isn’t a report that Porter flubbed any of the testimony or contradicted himself on cross.

@ Andrew or Rags. What are the chances of some or all of the other officers giving testimony?

I am also wondering other than the other prisoner in the van, who the defense will call.

As fast as this is progressing the jury may have it by early next week.

    I’d like to see some more testimony on the ACTUAL practices of the Baltimore PD, especially on the issue of seatbelts, response to medical issues, and training communications generally.

    Plenty of organizations, especially governmental organizations, have formal rules on the one hand (designed by REMFs) and actual practices on the other (executed by folks on the pointy end), and they’re often far from the same things. Usually higher ignores this kind of discrepancy unless forced to pay attention, because it’s work for them if they pay attention. But it’s the rules actually in effect

    I’m just uncertain who would be the best person to have testify for that purpose. Any serving officer still needs his job after this trial. Some kind of expert witness, perhaps one that’s done a study/interviews with BPD officers?

    Wish I had the witness list.

    –Andrew, @LawSelfDefense

    –Andrew, @LawSelfDefense

      Ragspierre in reply to Andrew Branca. | December 9, 2015 at 6:58 pm

      Retirees would be my choice. Especially black retirees.

      Heh…!!!

      Char Char Binks in reply to Andrew Branca. | December 9, 2015 at 8:19 pm

      Maybe some ex-offenders. Ask them if they’ve ever been transported while seatbelted, and how they would feel being buckled in like a child during an arrest.

      Imagine an officer exposing his face, neck and shoulder to an unruly, violent suspect’s teeth, and his sidearm to the suspects hands, while fiddling with a strap and a metal buckle near the suspects genitalia. What could possibly go wrong?

    HandyGandy in reply to Gremlin1974. | December 9, 2015 at 7:29 pm

    At least one expert on transporting prisoners.
    Someone to point out that not only do people not buckle up on certain transportation, there are not even seat belts. These include:
    buses, public transportation trains/subway trains, Commuter trains. Amtrak trains. Finally schoolbuses.

    Ragspierre in reply to Gremlin1974. | December 9, 2015 at 7:36 pm

    I think that, to the extent the various defenses have any working arrangement, they would avoid that like the plague.

    Testimony in one trial can be used in another.

    Testimony COULD be argued to open up an accused to HAVE to testify in their own trial. (If Andrew disagrees with that, I roll over on my back and show my soft criminal law underbelly. I know…an ugly image none of you should have had embedded in their psyche.)

      Char Char Binks in reply to Ragspierre. | December 9, 2015 at 8:21 pm

      I can’t unsee it.

      Oh, I agree, you can’t call the other officers to testify.

      First of all, probably just not a good idea, tactically. Let’s face it, prisoner’s dilemma.

      Second of all, you can’t compel them to testify, anyway–they’re all under indictment, clearly in peril of criminal liability, they’ll simply exercise their 5th A rights to not self-incriminate.

      –Andrew, @LawSelfDefense

        HandyGandy in reply to Andrew Branca. | December 9, 2015 at 9:45 pm

        The defense has already thrown Goodsen under the bus.

        I can’t believe I just said that.

        Most of their presentation can be taken to suggest that none is guilty, but a few times they’ve suggested that if anyone is guilty, it is Goodsen.

          Goodson’s not a defendant in THIS trial.

          In Goodson’s trial he’ll have his own defense counsel, and his own jury.

          In any case, the duty of Porter’s lawyers is to vigorously defend PORTER. Goodson is NOT their client. That’s the duty of Goodson’s lawyers.

          –Andrew, @LawSelfDefense

          Char Char Binks in reply to HandyGandy. | December 10, 2015 at 12:11 am

          Unless I missed something, I don’t think they threw Goodson under the bus. They just made the best case they could for Porter. Porter and his team definitely didn’t turn on Goodson. I think some SJWs would take some of what was said in Porter’s defense as incriminating to Goodson, but that doesn’t mean it is. They presumed them all guilty from the start anyway.

          HandyGandy in reply to HandyGandy. | December 10, 2015 at 12:19 am

          Yes. To Porters lawyer’s credit they are not pointing the finger all that hard.

          In any adversarial proceeding: a trial, a war, a game. it is generally considered a bad practice to do what your opponent wants to do.

          You can’t tell me that in any trial with multiple defendants, one of the prosecutions goals is to get the defendants to point fingers at each other.

        Gremlin1974 in reply to Andrew Branca. | December 10, 2015 at 2:06 am

        Can testimony from previous trials be used in the following trials?

          Sure, subject to the usual rules of evidence. Typically, you’d bring in the actual person who made the statement of interest in the previous trial and have them make the same statement in your trial. If their current testimony varied from their prior testimony, you could then use their past testimony to impeach them.

          –Andrew, @LawSelfDefense

          Sammy Finkelman in reply to Gremlin1974. | December 10, 2015 at 11:41 am

          I think the question is NOT:

          Can prior testimont be used to cross-examine the witness or to amplify what the witness said, but van previous testimony be used if trh witness refuses to testify (say on the grounds of the 5th amendment or even in contempt of court) or if the witness is unavailable?

          I think the person is on trial on at least one of the same charges, the old testimony can be read into the record.

          If it’s a different defendant, or different charges, what?

          Sammy Finkelman in reply to Gremlin1974. | December 10, 2015 at 11:49 am

          Typos. That should be:

          Can previous testimony be used if the witness refuses to testify (say on the 5th amendment grounds or even in contempt of court) or if the witness is unavailable?

          I think IF the person is on trial on at least one of the same charges, the old testimony can be read into the record.

          Otherwise, I think the rules would be whatever rules apply to any other kind of a sworn statement.

          I suppose excerpts of testimony from another person could be used to cross examine a witness if it was done in the following manner: Do you disagree with what that other witness said about the same thing at the same time? If that’s an exception to he hearsay rule.

This trial is a travesty.

Porter also re-emphasized that he was “offended” by prosecution suggestions that cops routinely lied, especially given that it was so often that the prosecutors themselves relied upon police testimony in court.

I think that if I were a defense attorney I’d take particular joy in quoting that back to Mr. Schatzow at every possible opportunity.

I read earlier that one of the defense attorneys stated they were calling someone who had participated in ( 6000) 2000 both reported ? arrests where he did not use a belt .The article I read did not mention if BPD or retired. Porter stated that since he was 220 lbs he could not pick up a 150 lb man without Freddies assistance . If anyone of the jurors ever worked or had a family member who did hospital or in home care,Older women taking care of relatives , etc that would surely resonate. There is a good many older people on jury , that may help him.

There was a pretrial fight over Freddies previous medical records , how will this affect the next trial . If Porter and Goodsen are acquitted how long do you think Mosby will shake that tree and will anyone anywhere call for an end to the madness. I can see a mop headed presidential candidate throwing his nickels worthy in if gets dragged out too long. Anything to get a reaction.

Handy Gandy I imagine Goodsens lawyers will throw some blame at the others for not seat belting. Deflecting yes but not noteworthy, it was more lawyer comments as opposed to Porters testimony.

The worst part of this whole thing is that even if all six officers are acquitted on all charges there will still be lots of people convinced that FG was murdered by the cops.

Even convictions on some lesser charges won’t satisfy the BLM mob.

Does anyone knwo the breakup of the jury in terms of working class people, versus managerial people?

A common theme in the workplace is for working class people to get things done, even if it means violating policy. Of course poorer managers think it is their job to make their subordinates toe the line.

I think Porter’s following policy will be a big thing in deliberations.

Sammy Finkelman | December 10, 2015 at 12:04 pm

I think the defense case is that:

1) It is true that Freddie Gray complained of needing medical attention. But he was lying, or exaggerating some very minor situation. The defense is not that might have been lying but that he was in fact lying and malingering.

Freddie Gray’s intention was to avoid going through central booking, or, possibly, just to get out of the van because he was maybe uncomfortable.

2) If he had not been injured, and had persisted in his claim, he would have had to have been taken to a doctor, but it was reasonable to wait – maybe he wouldn’t demand it, and there were other things to do.

3) He was very severely injured between the 5th and the 6th stop. This injury would have prevented him from talking, and it is the only injury he had.

4) This was completely independent of anything Freddie Gray had complained of prior to that point.

5) Nobody saw it when it happened and nobody knew, or at least nobody understood until he was taken out of the van, and even now they don’t understand [or don’t want to say!!] exactly what happened.

6) If not buckling him was a cause of this, everybody in the Baltimore Police Department did the same thing, and no special guilt should be attached to the defendant.

Most prisoners arrived quite safely, and, as a practical matter, it wasn’t safe for the policeman to try to buckle him in, even though some regulations of the Baltimore police department required it. It was maybe a violation of a new, un-enforced policy, but it was not illegal negligence.

Sammy Finkelman | December 10, 2015 at 12:13 pm

Porter testified that he heard Gray yelling during the arrest that he couldn’t breath

This seems to be an atempt to imitate Eric Garner. This was well after Eric Garner became famous.

Sammy Finkelman | December 10, 2015 at 12:16 pm

its unclear where an inhaler was supposed to come from Gray didn’t want an inhaler – he wanted a case against the police or he wanted them to get an inhaler from an EMS vehicle.

@Andrew. If you were represented Porter and he was acquitted at this trial, would you advise him not to testify at subsequent trials even if he is granted immunity by the State. With our dual sovereignty system, the State cannot grant Porter immunity from Federal prosecution.

    If I were his lawyer I’d be asking “What’s in it for my client to testify?” Also, then I wouldn’t be able to blog about it. 🙂

    That said, I don’t know if he has any close personal relationships with any of the other defendants. Once he’s acquitted here he’s obviously out of peril of criminal liability for the case, and personal civil liability is unlikely for a cop in cases like this due to qualified immunity.

    Also, really, the case is such utter bullshit, plus he’s in the same racial bucket as Freddie Gray, I don’t see the Feds even looking at him with lukewarm interest, so I really don’t see much threat from that front.

    –Andrew, @LawSelfDefense

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