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Freddie Gray Trial: Jury Selection Begins Amid Protests

Freddie Gray Trial: Jury Selection Begins Amid Protests

Prospective jurors clearly hear protestors’ chants even as they undergo selection

[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.


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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Char Char Binks | December 1, 2015 at 11:55 am


legacyrepublican | December 1, 2015 at 12:57 pm

Isn’t Justice supposed to be blind?!

Oh, I see now. My bad, because in this case, justice is “blind” to reason.

Question: assume for a moment that one or more of the defendants is convicted on one or more charge. If that occurs, would the judge’s refusal to change venue be a reasonable basis for an appeal?

I understand one can appeal anything so the question is whether it would have any reasonable chance of success.

    rabidfox in reply to stevewhitemd. | December 2, 2015 at 2:12 am

    I would say that any defendant would have excellent grounds to appeal a conviction. Even assuming an impartial jury (yeah right), the mobs out side the courthouse could easily be considered intimidating.

Mr Branca love your post however you misspoke Goodsen was the van driver, Porter was the Officer summoned by Goodsen at the Druid Street stop to check on Freddie. He sat him up on the bench , Freddie was able to talk and sit up at that time, so obviously no broken neck. At next stop 1400 Main ? Officer White caught up with them and checked on Freddie . This was where Donta Allen was put in van .Surely any lawyer should be able to convince a jury that his first story was the story that was most truthful. The second story when he had a target on his back as a snitch in the biggest trial in Baltimore history is ,for most sane people ,the obvious lie. I have also suggested before that this trial is such a career killer that the judge may be sowing the seeds for it to be overturned on appeal. He would still be a hero and he knows there are no sanctions for liberal misbehavior a win win for him.Unethical yes , but it is Baltimore.

I read of a case in Miami where refusal to move trial caused a reversal and retrial ,just can’t find it now. Also another great blog that has a long series on Freddie Gray is Stately Manor McDaniel, he has referenced Mr Branca several times.

The only “Justice” the embedded “agent provocateurs” will accept will be convictions, or they will instigate riot again. Even if they are convicted there will probably be orchestrated riots again, because that’s what they do. I wonder if Sharpton himself writes the checks, or if it’s an all cash deal?

If the officers are acquitted it will be interesting to see if the Mayor encourages rioting again by forcing the police to step down and also by threatening the officers with dismissal if they arrest anyone.

At this point I could hardly give a crap about what happens to Baltimore. They have made their own bed.

    jlronning in reply to Twanger. | December 5, 2015 at 12:40 pm

    I understand where you’re coming from, but as one who lives in Baltimore, don’t appreciate the sentiment (moving isn’t always easy).

The whole thing lost any veneer of “the application of rule of law” and veered into “social justice” territory the second Mosby prefaced her announcement of the arrests with her speech to the baying mob which began,

“To the people of Baltimore and the demonstrators across America, I heard your call for ‘no justice no peace’…”

That’s where the wheels fell off, and there’s not been a hope in Hades of real, actual, dispassionate, rule-of-law type justice being served ever since.

The cops’ actions that day may or may not have led to the death of Freddie Gray — I’m probably one of the few here who wanted to stay open to the possibility that the cops could have been at fault — but we would have needed a fair trial to work that out, and Mosby queered any chance of a fair trial happening on Day One.

Mosby has pretty much single-handedly guaranteed that there’s going to be “No Justice” and “No Peace” in this sham of a trial. Nice work, lady.

    Milhouse in reply to Amy in FL. | December 1, 2015 at 2:22 pm

    I’m probably one of the few here who wanted to stay open to the possibility that the cops could have been at fault

    I’m perfectly open to that possibility. What’s so strange about this case is that I’ve had no opportunity to form an opinion about the state’s case, because I have no idea what it is. I can’t recall another case in which the state has got as far as trial without once saying what it thinks the defendant did wrong, let alone why it thinks that.

    Let the state tell me that and I can form an opinion on whether it seems plausible and on whether the evidence seems to support it. Until then, I’m faced with defendants whom nobody has even alleged did anything wrong(!) so why would I even consider the possibility that they might be guilty?

    Char Char Binks in reply to Amy in FL. | December 1, 2015 at 3:12 pm

    The few, the proud.

    Did you have the same disdain for Maryland prosecutor Anne Colt Leitess?

Self-promoted from the “Tip line”…

None of the 75 potential jurors in the first batch questioned by Circuit Judge Barry G. Williams answered affirmatively when asked if they were unfamiliar with this case. Each one also indicated awareness of the $6.4 million civil settlement the city paid to Gray’s family, as well as the curfew imposed after Gray’s death.

The attorneys for the defense in these cases have sought to have the trial moved out of Baltimore. They argue that publicity surrounding the case and the prospect of additional civic unrest could influence the jurors’ decision. The jurors’ familiarity with the case tends to support the first part of this claim. Reports that protesters’ chanting could be heard inside the courtroom tends to support the second part.

There’s also a question as to whether Judge Williams will be completely impartial. Before he became a judge, Williams specialized in investigating and prosecuting police misconduct cases for the federal government.

Looks like there’s going to be good appellate fodder in the Dead Fred cases…

    dmi60ex in reply to Ragspierre. | December 1, 2015 at 2:52 pm

    I have wondered if this judge and prosecutor even worry about getting reversed . They can move it on down the line , get convictions , be heroes, get reversed on appeal, and have Leftist Progressive immunity from any political or professional consequences . At some point there will be another Democratic Administration that will need absolutely unqualified Social Justice Warrior Attorney Generals and a compliant GOP to consent to their appointment , a win win . I just can’t see why Mosby hasn’t thrown a wrench in it, to delay it until after her hubbies Mayoral election .

It is worth noting that the statute does not say that the case shall be removed ‘if x or y’, rather, it says that the case shall be removed ‘only if x or y’. The statute as written articulates a limitation on the removal power rather than a command to remove if x or y is true. The defense motion (p. 10) that you embed glosses over this by italicizing the language of the statute following the word ‘only’. But the defense motion also quotes the Maryland constitution, and the language in that document does command removal if x or y . . .

So the statute does not faithfully give force to the constitutional provision, and I would hope that the statute has been or will be interpreted in light of the constitutional command, that is, interpreted to mean ‘if and only if’ or just, ‘if’.

    It’s not necessary that a change in venue be MANDATED as matter of law in order for denial of that change in venue to be the wrong decision, contrary to interests of justice, and reversible error.

    Reversals happen all the time on matters that are, fundamentally, judgment calls.

    –Andrew, @LawSelfDefense

That is, I agree with what Andrew said at 2:43.

Why haven’t the lawyers appealed the change of venue? If any case deserves a change of venue it’s this one.

If I were them I would renew the motion. It’s hard to argue that hearing chants to convict is not prejudicial. If denied I would appeal immediately.

Would the following tactic be acceptable? To renew the motion, hand the judge a written motion, then realize that you mistakenly handed him the wrong papers and hand him the right papers, the original papers being a draft of the appeal.

    Gremlin1974 in reply to HandyGandy. | December 1, 2015 at 3:39 pm

    “Would the following tactic be acceptable?”

    Acceptable, I’m not a lawyer but I am gonna say no. Now it might possibly get you held in contempt and/or in trouble for threatening a judge or an ethics charge.

      HandyGandy in reply to Gremlin1974. | December 1, 2015 at 5:34 pm

      In everyday usage, it is a threat. But I don’t think that in a legal sense it is. If it were then anytime someone asking to speak to a supervisor they could get arrested. So I don’t think that criminal charges, or ethics charges apply.

      Maybe the judge could find him in contempt, if he got mad enough. I don’t think an appeals court would uphold it though. It’s not really contempt to threaten to do something that you have a right to do.

    Ragspierre in reply to HandyGandy. | December 1, 2015 at 5:46 pm

    You don’t just appeal willy-nilly.

    Many (most) appeals have to wait for a final judgment.

    Others, which are allowed to be made as “interlocutory appeals”, can be made during a proceeding (at least in civil procedure).

      Interlocutory are available in criminal cases, too, in SOME circumstances, and those circumstances vary widely from jurisdiction to jurisdiction. Really, it’s all local rules. Not sure how they do it in MD. The fact that the denial of change in venue has NOT been appealed already suggests to me it’s not an option on interlocutory, but that’s just a guess.

      –Andrew, @LawSelfDefense

Prediction: DA Mosby Will get a partial victory. 2 will be convicted,4 will walk. She won’t lay a goose egg like DA Anne colt Leitess did.

    Gremlin1974 in reply to m1. | December 1, 2015 at 3:45 pm

    Prediction #1: DA Mosby, if she manages to get a conviction, it will be reversed upon appeal.

    Prediction #2: You will continue to make inane comments that are barely lucid.

    Prediction #3: No one will bother to look up your reference to DA Leitess.

    Oh, and check the laundry it might be dry.

      Nice to hear from the president of the Joseph Harvey fan club.

      1.DA Mosby Will not have her convictions overturned.
      2.Once again you respond to my posts many more times than I have responded to your posts. Therefore,you are the inane person as well as one lacking lucidity.
      3. Someone already has.

      You’re correct the laundry is dry. Tell your wife this is the last time I do her laundry.

        Gremlin1974 in reply to m1. | December 1, 2015 at 6:50 pm

        “Once again you respond to my posts many more times than I have responded to your posts.”

        I do so as a public service so that someone who doesn’t know your history of mental illness won’t take you seriously by accident.

        Char Char Binks in reply to m1. | December 2, 2015 at 11:32 am

        You have good reason to complain, considering that Walker was unjustly convicted and sentenced to death for that killing just because he’s black.

    The case you keep banging on about is a case in which a cop got away with shooting someone in an incident where, if he hadn’t been a cop, he would have been locked up. I don’t understand what your obsession with that case is. You seem to think that because he was an off-duty cop, his “license to kill” was valid in any state and in any circumstance he chose to exercise it, and are aggrieved that he was even brought to trial at all?

    You are an odd duck.

    Guilty of what, M1? Be specific.

Mosby might get a misconduct charge for failure to buckle up, just so the jury can say they did something , but I can’t see one of the major charges surviving appeal .

So we have several characters with differing goals:
Mosby wants convictions on whatever charge possible in order to make Mosby look good.
The mob wants blood and an excuse to riot. Yes, I count the press in here too.
The defendants want a fair trial, and possibly the ability to recover damages from the railroad they’ve been run down so far.

The judge wants… well, we don’t know for sure. Ideally, for Mosby to drop the charges and go away, so that he doesn’t get the blame, because he’s going to get toasted no matter which way this goes. If the cops walk (as it seems probable) and the streets erupt in flames (also), he’s going to catch a lot of undeserved blame.

The city (anthropomorphizing a bit here) wants the cops judged guilty, at least in this phase, because (supposedly) this will make the mob happy and dance around the streets with flower petals. They’ve already paid 6million in Danegeld and won’t have to pay any more, except in the case of rioting, which they don’t want, and won’t understand how their bribe to the mob didn’t work when the fires and riots start.

Most probable guess? The cops walk, the loudmouths in the mob/press go crazy, and any rioting that happens gets slapped down in the early stages with violent rioters going straight into the pokey.

Worst case? The cops walk, the loudmouths in the mob/press go crazy, and when the rioting starts, the cops are held back while the city burns.

    mariner in reply to georgfelis. | December 1, 2015 at 7:02 pm

    I’m not sure I see the downside of “Worst case”.

    In that case the citizens of Baltimore get what they voted for, good and hard.

    I’m reminded of the “motivational” poster:

    It could be that the purpose of your life is only to serve as a warning to others.

There is a new job in Baltimore and many can’t wait to start Bulk Toilet Paper Acquisition Engineers

While we have always had politically motivated criminal trials, in this country, to some extent, we lept into the era of political kangaroo court trials with the Zimmerman case and it continues today. This a set f criminal trials designed solely to appease a small, vocal minority at the expense of the civil rights of six public servants. Its sole purpose is to keep this vocal minority from burning down Baltimore City.

In order to do this, at least one of these public servants has to be convicted of something. And, as the prosecution apparently has absolute no case which would allow for a conviction for any crime, in a neutral setting, the cases have to be tried in the venue which is most likely to produce a conviction of one of the parties charged, Baltimore. That is the reason for not granting a change of venue.

A change of venue, while not to be taken likely, is always non-reversible. No appeals court ever vacates a not guilty verdict and orders a retrial in the venue from which the case was originally moved. But, in cases where overwhelming bias among the pool of potential juror or where overwhelming pressure exists for the jurors to return verdict of guilty exists, a refusal to grant a motion for a change of venue is almost always reversible error in the case of a conviction.

Great post, as always, Andrew.

I’m curious if you saw this latest news on that fraternity shooting in AZ, and if you plan to write on the subject at all?

“Northern Arizona University gunman who shot four and killed one claiming self defense was sober – but his victims had been drinking and smoking marijuana”