UPDATE (12/14/15, 5:39PM): Jurors dismissed for the day, back to deliberations at 8:30AM tomorrow.

UPDATE (12/14/15, 5:22PM): Both prosecution and defense agree with Judge Williams that no additional legal definitions will be provided to the jury.

UPDATE (12/14/15, 5:11PM): Jury asks for legal definitions of “evil motive,” “bad faith” and “not honestly.”  That doesn’t bode well for a conviction.  Hard to get a unanimous jury verdict on a charge if the jurors aren’t even sure they understand what the required elements mean.

UPDATE (12/14/15, 5:09PM): Jury asks for transcripts of radio recordings and of Porter’s interview. Those transcripts were never introduced into evidence, however, but merely used for demonstrative purposes.  Judge Williams declines to provide them.  

Today the jury in the “Freddie Gray” trial of Baltimore Police Officer William Porter was instructed by Judge Barry Williams, both the prosecution and the defense made their closing arguments, and the jury began their deliberations.  Keep your eyes here for breaking news on a verdict.

Nothing I saw today served to change my opinion that, legally speaking, the defense was in far the superior position, and that indeed it appears most likely that not only did Porter do nothing illegal, he did more than he need have. Of course juries are unpredictable.

Officer Porter on trial for involuntary manslaughter, second-degree assault, misconduct in office, and reckless endangerment following the in-custody injury and later death of local community drug dealer Freddie Gray. Gray had suffered an 80% cleavage of his spinal cord while traveling in a police van after being arrested, from which injury he would die some days later.

An additional five Baltimore Police Officers face similarly serious charges arising from the incident, all of whom are scheduled to stand trial in coming weeks.

Freddie Gray Baltimore Police Charged Mug Shots

[Baltimore Police Officers charged in Freddie Gray Case – William Porter lower left]

This post is based largely on today’s tweets by Justin Fenton (@justin_fenton) and Kevin Rector (@RectorSun), two journalist for the Baltimore Sun observing the trial live.

Jury Instructions

As has been typical of the lack of transparency of this case from the initial charges, the actual jury instructions do not appear to have been released to the public, so we’re limited to what we can learn from the tweets of reporters.

Judge Williams told the jurors “You should not be swayed by sympathy, prejudice or public opinion.” He also told them that while it was permissible for them to change their opinion upon convincing argument by the other jurors, they should “not surrender you h honest opinion.”

He reminded the jurors that the burden of proof remains with the State, and that they are duty bound to apply the law as he instructs them.

Williams also referenced Porter’s early statements to police, and told the jury that if they believed the statements were not voluntary they must disregard them. This refers to an unusual rule of evidence with regards to police officers.

Most suspects charged with a crime cannot be compelled to testify, and can simply plead the 5th Amendment and assert their right to silence. Police officers are in the relatively odd situation that if they are interrogated by their own department they might be fired if they refuse to cooperate with the investigation. In the eyes of the law such cooperation is deemed “compelled” by the implicit threat of the loss of their job. While the law allows such compulsion to force the officer to testify in cooperation with the investigation, it also holds that testimony so obtained cannot be used in a criminal trial against the officer.

Williams instructed the jury that to find Porter guilty (presumably of the involuntary manslaughter charge) they must find that he had acted in a “grossly negligent manner,” been aware of the risk created to Gray’s life, and have departed from the behavior of a “reasonable officer.”

For the second degree assault charge, Williams instructed the jury that Porter must have acted with gross negligence, but says it is not required that Porter have actually touched Gray (so, a mere act of omission could be sufficient to support a verdict of guilty on this charge).

On the charge of misconduct in office, Porter must have “corruptly failed” to do his duty as an officer, and with “evil motive.” Mere error in judgment is not sufficient to support a guilty verdict on this charge.

Prosecution’s Closing Statement

Prosecutor Janice Bledsoe presented the State’s closing argument. She began by arguing the legitimacy of the notes taken by Detective Teel of an interview with Porter soon after Gray’s death. Teel had testified that Porter said Gray couldn’t breath at the 4th stop. (There were six stops altogether, counting the first where Gray was loaded in the van and the last at arrival at its destination.)

Marilyn Mosby

[State’s Attorney, Marilyn Mosby]

Porter himself had testified that Gray made this complaint at the 1st stop, not the 4th stop. It might seem odd that Porter would argue the complaint came earlier, as that would seem to raise the question of why Porter hadn’t sought medical aid for Gray sooner. In fact, the earlier complaint would be consistent with Gray being out of breath because of flight and non-compliance with the police, rather than as a result of trauma. It is also worth noting, yet again, that if Gray was able to tell Porter that he could not breath, he was clearly breathing.

In addressing the testimony between Teel’s notes and Porter’s in court testimony, the State asks the jury to consider “who had the motive to be deceitful? It’s not Detective Teel. It’s Officer Porter.”

The prosecution argues that given (they claim) that Gray complained about an inability to breath at the 4th stop, the only way Porter should be permitted to shift to van driver Goodson the responsibility for the failure to call for a medic is if “those words didn’t happen.”

Prosecutor Bledsoe also suggests that in Porter’s initial statement he described putting Gray on the van bench “like an object,” and only claimed for the first time at trial that Gray was able to physically assist the lift.

Freddie Gray arrest

At this point Bledsoe’s closing began to veer off into the hyperbole that invariably accompanies a legless prosecution.

For example, Bledsoe grabs her suit collar and pulls it to her mouth, as if it were a lapel mounted microphone, mimicking an officer making a radio call, and says, “I need a medic. That’s all it would have taken.”

This, of course, ignores the actual legal issues entirely. Had Porter known Gray had suffered a life-threatening injury, it’s quite possible he would have had a legal duty to call for medical care. The defense’s entire theory of the case, however, is that Gray did not even suffer his serious injury until the second to last stop of the van, and therefore could not have known of the injury until they arrived at their destination—where, in fact, they did call for medical care.

With reference to the prospect that Gray had faked his earlier “injuries” in an attempt to avoid being transported to jail—a narrative strongly supported by defense testimony of Baltimore police officers with experience processing prisoners at the jail, who often faked such injuries for this purpose—Bledsoe remarked “This ‘jailitis’ is a bunch of crap.”

At this point it seems clear that the Prosecution’s strategy in closing is to simply make Porter out to be a liar, arguing that “The only reasonable conclusion is that Officer Porter is not telling the truth.” This is a very difficulty strategy with police officers, who are often quite experienced in testifying credibly, unless one has clear and convincing evidence of the alleged lies. No such evidence appeared in this case. It is even more difficult when, as in this case, the officer’s testimony is so strongly corroborated, even if only circumstantially, by the testimony of so many other police officers.

With respect to the general orders to seat belt prisoners and call for medics, Bledsoe argued that Porter “knew what he was supposed to do.”

Bledsoe argues to the jury that Gray’s traumatic neck injury occurred between the 2nd and 3rd stop of the van. In fact, not even the State’s medical examiner was willing to narrow down to timing of injury to that degree, being willing only to claim that the injury happened between the 2nd and 4th stop. Even then, this was based on her speculation, as there is in fact no actual evidence of the injury incurring in that interval. Indeed, there was considerable evidence that it could not have occurred that early.

Referring to the 4th stop, by which time Bledsoe claims Gray was severely injured and that Porter knew this to be the case, “When Officer Porter failed to call a medic, when the van door closed, that wagon became [Gray’s] casket on wheels,.” Again, there is no evidence to support the claim that Gray had suffered his injury by the 4th stop, and considerable evidence suggesting he hadn’t.

Bledsoe added “Every caretaker knows that it’s dangerous to travel in a vehicle without a seatbelt on.” I guess she’s hoping that none of the jurors have every travelled on a bus, or subway car, neither of which typically has seat belts.

More histrionics now, as Bledsoe held up a seatbelt and clicked it shut, asking “How long does that take?” Again, this ignores the actual legal issue, which is whether Porter had a reasonable rationale for not making use of the seatbelt. Such a rationale was stated by Porter in his own testify and buttressed by the testimony of other police officers.

To address the point that several of the other police officers testifying for the defense had noted that they rarely saw a prisoner belted into a van, and never before the date of Gray’s injury, Bledsoe argued that on the reasonable officer standard “A behavior isn’t reasonable because everybody does it.” Actually, the fact that “everyone does it” does, indeed, suggest that a behavior is reasonable. People usually, not always but usually, act reasonably.

Bledsoe then set out to define manslaughter for the jury as a combination of reckless endangerment, negligent assault and disregard for human life. (In fairness, this is based upon a journalist’s tweet, so I do not know if this is actually how Bledsoe phrased the matter.)

Bledsoe then tells the jury he will step through though how Officer Porter disregards Freddie Gray’s life, and then begins stepping through Porter’s actions van stop by van stop.

Here Bledsoe goes theatrical: “With great power, comes great responsibility. You know who said that? Voltaire. And Spiderman.”

Pointing at Porter, Bledsoe told the jury that Porter had the “opportunity on four or five occasions to wield his power and save Freddie Gray. He abused his power. He failed his responsibility.”

In wrapping up his closing, Bledsoe told the jury the state was asking them to hold Porter “responsible for the oath that he took, for his job, and for being a human being.”

It’s not really possible to do a substantive analysis of a closing statement based on a reporter’s Tweets, but I can’t help but note an almost perfect absence of any referral to actual evidence, the exception to Detective Teel’s notes. It is notable that the Detective herself conceded to some errors in her notes when cross–examined by the defense

Defense Closing Statement

Defense counsel Murtha presented the closing statement for the defense, starting by telling the jury that the State must prove not just the factors that caused Freddie Gray’s death, but also that the defendant Porter was personally and specifically responsible.

Murtha noted to the jury that it’s “sometimes hard to set aside our emotions,” but reminded the jury that they had taken an oath to do exactly that.

Murtha also dove right into the relevant legal issues, emphasizing the reality of officer discretion, and recounting that in Porter’s various observations of Gray he had not believed that Gray was seriously injured.

The defense noted that the prosecution emphasized the requirement that officers call for a medic, and responded “You say medic, I say when and where.” This strikes to the core of the defense theory of the case, which was that Gray did not suffer his neck injury until after the second to last stop (as their medical experts testified), and thus the aid provided at the last stop was in fact the first opportunity to do so.

As all good defense counsel do, Murtha then stepped the jury through all the individual bits of doubt the defense raised with respect to the state’s case. The defense need merely sustain in the minds of the jury a reasonable doubt on at least one element of each criminal charges brought against Porter in order to achieve an across-the-board acquittal, so focusing the jurors’ minds on doubt is critical.

Murtha raised doubts about whether Porter had ever actually seen the updated general order on seat belts? Porter testified that he had not, and the State presented not one piece of evidence that he had.

Murtha argued to the jury that the prosecution “overlooked” essential legal issues of the case because of the “absence of evidence” on those issues, and argued that “The state is asking you to insert information.”

The defense also counter-attacked the State’s effort to impeach Porter’s credibility. “The state is attempting to attack the credibility of Officer Porter” but “external facts” support that he is telling the truth.

Murtha emphasized repeatedly the degree to which Porter had made himself available to the investigators of Gray’s death as well as to the jurors, who had seen Porter take the stand and testify on his own behalf, and subject himself to cross-examination in the process. “He had nothing to hide because he did nothing wrong.”

Murtha also noted that the State was never able to make a substantive dent in Porter’s testimony, and that the prosecution “never had an ‘ah-ha’ moment during cross-examination” of Porter, because Porter had explained his actions so clearly.

There’s no moment where Officer Porter says, ‘You got me.” Porter, Murtha noted, had done nothing but make himself available.

Murtha also aggressively attacked the State’s lack of evidence, and undermined what little evidence it did have, notably Detective Teel’s notes. He pointed out that Teel herself in her own testimony had conceded to errors in her notes.

He noted that there is “literally no evidence” as to when in the van Gray was injured, and that the state was merely speculating and asking the jury to “fill in the blanks,” continuing that “It’s astonishing and it’s scary, the state is asking you to make a judgment and decision based on speculation and conjecture.”

[Freddie Gray van]

[Freddie Gray van]

In particular, Murtha characterized the testimony of state witness medical examiner Carol Allan, who testified that Gray’s neck injury occurred between the 2d and 4th stop of the van, as “speculative theorizing,” which it most certainly was. Murtha argues that Allan could not be more specific with regard to the stops because she literally has no proof. “Take your pick as far as Dr. Allan is concerned. Is it stop 2? Stop 3? Stop 4?”

On the State’s inability to show when Gray was injured, Murtha argued that this alone was sufficient to undermine their ability to prove beyond a reasonable doubt that Porter’s actions (or, more accurately, omissions) caused Gray’s death.

On the issue of Gray allegedly being unable to breath, Murtha noted that Porter was “taking to him. He can tell that he’s breathing.”

Murtha also stepped through the very favorable testimony of the defense’s many witnesses, one by one, emphasizing all the other officers who testified that Porter’s conduct was that of a reasonable officer.

He also noted that the defense had brought to the stand a great many officers from the Baltimore police department to testify as to the reasonableness of Porter’s conduct, whereas the State brought only a single officer from the Midwest.

In characterizing the State’s largely evidence-free theory of the case, the defense argued “They’re stretching, they’re reaching. They want you to be emotionally disturbed and upset.” Murtha urged the jurors to keep in mind that they were tasked with making “a legal decision, not a moral, not a philosophical decision.”

Murtha reminding the jurors that the instructions they were read told them to not judge Porter’s conduct with 20/20 hindsight, and that a mere error in judgment is not sufficient to warrant a criminal conviction.

Finally, Murtha closed by noting that whatever the prosecution might say on rebuttal, “it doesn’t take away what is not present in their case. And that is evidence.” The jury has to find that Porter had “evil motive and bad faith” in order to convict, and that proof is just not there.


Prosecution Rebuttal

Prosecutor Schatzow handled to rebuttal for the State, and the gist of it appears to be lots of histrionics, and a central goal of convincing the jury that Porter is simply a liar (a difficult task, as already described).

He first pointed to Porter’s “callous indifference to human life,” and claimed that Porter was no lying about the facts. “Every time that he is stuck” on a contradictory statement “he now comes up with some new explanation.”

He argued that a truly reasonable officer, on seeing Gray first put into the van at the initial stop, would have asked “Why are we throwing him in there like a piece of meat?”

On the lack of an “ah-ha” moment during the cross-examination of Porter, Schatzow tells the jury “This isn’t a movie. We aren’t on television.”

Schatzow then stepped through each of the defense arguments and simply scoffed at them, but without actually citing contrary evidence. An example was the defense argument that it was van driver Officer Goodson, not Porter, who was responsible for Gray: “It’s almost laughable.”

And with that, the State’s rebuttal was concluded.

Jury Deliberations Begin

The court took a break until 2:15PM, at which time the case was handed over to the jury for deliberations.

As mentioned, it’s hard to do an analysis of closing statements based on reporter’s tweets, but I certainly didn’t see anything that would change my mind that the defense is in far the stronger position in this case.

–-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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