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Freddie Gray: Prosecutors Abruptly Introduce New Theory at Start of Trial

Freddie Gray: Prosecutors Abruptly Introduce New Theory at Start of Trial

For the first time Prosecutors formally argue a “rough ride” by Goodson caused Gray’s injuries

Prosecutors in the Freddie Gray trial of van driver Officer Caesar Goodson suddenly announced on Thursday, the first day of Goodson’s trial, a new theory of the case never before formally argued by them:  that they believe Gray’s injuries were the result of a malicious “rough ride” delivered by Goodson.  As the Baltimore Sun reports (emphasis added):

Before Thursday, prosecutors had presented evidence of a diving-type injury that caused his injuries inside the van, but had not directly alleged that Gray was hurt as a result of aggressive driving by the van driver.

The media and activists (but I repeat myself) have previously suggested that a “rough ride” might be in play in this case, but the prosecution itself has never directly made this claim part of their theory of the case–not, that is, until the opening day of Officer Goodson’s trial.

Officer Goodson is charged with murder, manslaughter, second-degree assault, misconduct in office and reckless endangerment in the death of Freddie Gray.

By all indications the prosecution has long planned to convict Goodson on the grounds that he had failed in a legal duty to provide Gray with adequately prompt medical care.  Specifically, the prosecution had planned to argue that Goodson was aware that Gray was having difficulty breathing, because of a statement to that effect by his colleague Police Officer William Porter.

Porter is alleged by Detective Syreeta Teel to have made a statement to the effect that Gray was saying he was having difficulty breathing during an initial unrecorded interview by Teel.  In a later recorded interview, however, Porter made no similar statement.  Further, when Porter took the witness stand at his own trial (the first of the Freddie Gray trials, and ending in a hung jury), he denied having ever made the statement.

For this and other reasons, trial Judge Barry Williams earlier this week ruled that the alleged statement was not admissible for the truth of the statement.  There remains some possibility that the prosecution might be able to nevertheless get the statement before the jury on the basis that it formed part of the basis for Medical Examiner Carol Allan’s conclusion that Gray’s death was a homicide rather than an accident.  Even then, however, the statement would be admitted for that limited purpose, and not for the truth of the statement.

With prosecutors facing the prospect that they might not be able to admit that statement into evidence, and would therefore not have it available to argue that Goodson was aware of breathing difficulty on the part of Gray, prosecutors necessarily sought desperately for some other basis on which to argue Goodson’s criminal liability.

The new basis, formally argued by the prosecution for the first time yesterday at the start of Goodson’s trial, is that Goodson bears criminal responsibility for Gray’s injuries because he subjected Gray to a “rough ride.”  A “rough ride” in this context means a ride in which the police van was malicious engaged in substantial and unpredictable changes in speed and direction for the purposes of hurling around defendants placed in the rear of the van.

The prosecution supports this allegation based on what they claim is a video that shows Goodson’s van rolling through a STOP sign, and also crossing the center line of a road.  Interestingly, neither of these actions would be expected to cause the kind of change in speed or direction necessary to place forces upon Gray.

Indeed, arguably actually stopping at the STOP sign would have subject Gray to such forces, and arguably rolling through the STOP sign would subjected Gray to fewer forces than would have stopping.  Similarly, a slow roll over a center line does not impose any notable forces upon either a vehicle or its passengers, absent a sharp correction.

Far be it from me to suggest that after 14 months Gray’s death prosecutors are still pulling theories of the case out of their posteriors, but if the shoe fits …

A more long-standing basis for the state’s prosecution of Goodson is that the van driver failed to buckle Gray into the van, as required by a new regulation put into effect just days before Gray’s injury, and it was this failure that resulted in Gray’s mortal neck trauma.  Indeed, in the first two Freddie Gray trials of both Officer William Porter and Officer Edward Nero the defense argued that if anybody had responsibility for seat belting Gray it would be van driver Officer Goodson, rather than their clients.

There remains considerable dispute, however, about whether this new seat belt regulation was:

(1) effectively promulgated to officers in general;
(2) whether Goodson was actually aware of the new regulation in particular; and
(3) even if the rule was promulgated and Goodson was aware of the new rule, whether the decision to buckle a suspect was nevertheless at the ultimate discretion of the officer on the scene, taken into consideration all of the circumstances present as well as the necessity of ensuring the safety of the officers as well as the suspect.

Furthermore, Goodson’s defense counsel is arguing that Freddie Gray would not have been subject to his injuries had he not arisen from the position of safety on the van floor in which officers had placed him.  The Medical Examiner has concluded, and testified, that Gray’s injuries were the result of a “shallow diving” type impact, which could only have occurred if Gray had raised himself off the floor of the van.

OK, folks, that’s it for now.  More as things develop.

–-Andrew, @LawSelfDefense

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legalbeagle | June 10, 2016 at 9:20 am

This is fascinating. I have never seen a prosecution where the State endeavors to convict different defendants of the same act using different theories of the crime.

Andrew — I don’t know Maryland Law. Is the State creating an estoppel situation with its rough ride argument that will hinder further prosecution of the other officers?

Ahhhh, the “Malicious Rough Ride” theory.

I don’t know. What makes more sense (I know, I actually laughed out loud as I typed that) to a reasonable person: Freddie Gray intentionally injured himself (as suggested by the other occupant of the van), or a Black Baltimore cop decided to teach Fred a lesson by giving him a MRR, rolling through stop signs, and crossing the center line!

Let the hilarity continue . . .

The “Malicious Rough Ride” theory applies solely to the prosecutors.

legacyrepublican | June 10, 2016 at 9:34 am

To paraphrase Frank Farmer; There is always one person who will be hit with this malicious form of prosecution.

The cocky black chauffeur.

“There remains some possibility that the prosecution might be able to nevertheless get the statement before the jury on the basis that it formed part of the basis for Medical Examiner Carol Allan’s conclusion…”

An error, Andrew. There ain’t no way in hell the prosecution is getting anything before the jury…!!!

In civil procedure, this would be an impermissible “surprise” if the defendants were just doing the base-line discovery. It would be the basis of a mistrail.

I don’t see how this is considered a “fair” move by the state, springing a heretofore un-pled and undisclosed theory of the case on the defense. Who’s had time to prepare a case in defense?

    The judge seems to have disallowed their Plan A, though (the “I can’t breathe” statement).

    counsel in reply to Ragspierre. | June 10, 2016 at 12:10 pm

    Whew — that’s a close one. Work product, such as a closing argument memo, is generally not discoverable in a criminal trial. But work product is usually tactical in nature — and the theory of the case is clear to everyone.

    In this case, there really is no “case”, so the theory is anyone’s guess. Given the totality of the facts, the defense may now have a non-trivial Sixth Amendment argument that they were denied the right to be confronted with the “nature and cause of the accusation”. The failure to disclose the Donte Allen interview bolsters such a claim.

    Your thoughts are appreciated.

    Anonamom in reply to Ragspierre. | June 10, 2016 at 1:54 pm

    In a criminal case, the prosecution must prove each and every element of the crime(s) charged beyond a reasonable doubt. The theory of the case is not an element and is not “pled.”

Well, this certainly explains why they risked the whole thing on withholding information about their own interview with a witness that torpedoes their new Made-for-TV theory.

The van probably has a vehicle monitoring system which could substantiate (or not) the claim of severe braking and acceleration. Let’s hope the data were captured.

The prosecution is grasping at straws at this point.
If they already had a case, they would have used it.
The judge will see right through this weak argument.

So, those interviews with Donta Allen on May 4th and 7th, they were offering they guy some chocolate chip cookies if he testified that it was an intentional “rough ride”.
Looks like Mr. Allen don’t like chocolate chip cookies.

This is an absolutely brilliant plan by the prosecution! They guarantee a conviction! Resulting in two traffic tickets.

If there is evidence to support this charge wouldn’t the Persecutors have had to provide it to the defense ahead of trial?

Is the defense unprepared for this attack? I think this is something that should have come out in depositions of their experts.

    RodFC in reply to RodFC. | June 10, 2016 at 11:18 am

    To clarify. I think this is would have to come out in deposition of prosecution experts. Keep in mind the gag order, so we don’t know what the defense already knows.

    Anonamom in reply to RodFC. | June 10, 2016 at 1:59 pm

    I would be very surprised if they were, in fact, surprised (they might howl for effect, but that’s not the same thing.) Anticipating the prosecution’s potential theories of the case is just part of the job.

      Valerie in reply to Anonamom. | June 10, 2016 at 10:07 pm

      I read uncredited stories about this first interview of the guy in the other side of the van very early on. At some point, I was beginning to wonder if it wasn’t a myth like “Hands up, don’t shoot.”

      What’s new is that the prosecution, which had been presented with the right discovery requests and has not made the expected disclosures, has been forced to disclose the transcript because the other guy’s attorney finally, in writing, said it happened.

      Defense has been boxing the prosecution in on genuine lies.

Does Baltimore have enough kangaroos to staff this kangaroo court? Or did they have to import ILLEGAL kangaroos?

    Gremlin1974 in reply to Fiftycaltx. | June 10, 2016 at 1:05 pm

    I am thinking that Judge Williams goes home everyday and has a stiff drink and wonders why he listed to the idiot State’s Attorney.

Their are enough BLM criminals to elect their SJW panderers.

inspectorudy | June 10, 2016 at 11:25 am

From the little I remember from the early days of the theory of how Gray was injured, it seems that the bolt that left the imprint on him was at the top of the van near the roof. If that is the case why would the fact that he wasn’t buckled in have anything to do with a negligence charge? if he had sat on the seat or fallen onto the floor he would have been uninjured. But only by standing up and endangering himself could he incur such an injury.

Char Char Binks | June 10, 2016 at 11:39 am

SJWs KNOW Freddie had a rough ride, same as they KNOW Zimmerman had his gun in his hand when he confronted No_Limit_Toddla.

Common Sense | June 10, 2016 at 11:50 am

“Freddie Gray: Prosecutors Abruptly Introduce New Theory at Start of Trial”

Spell it:


Paul In Sweden | June 10, 2016 at 11:57 am

Keeping the popcorn handy as I have been following this case. It is difficult to keep things straight.

“Porter is alleged by Detective Syreeta Teel to have made a statement to the effect that Gray was saying he was having difficulty breathing during an initial unrecorded interview by Teel. In a later recorded interview, however, Porter made no similar statement.”

I was certain that Porter or someone at some time said that because officer Porter was trained as an EMT and was right there with Gray, when he heard Gray say he can’t breathe Porter addressed the issue of Gray having breathing difficulty and then reached into Gray’s pocket for his inhaler – this action was to my understanding the only time that Porter actually touched Gray and would certainly not be viewed as an assault or illegal restraint or what ever the charge was that was fabricated. Now Porter never heard Gray say he was having difficulty breathing.

What is the deal?

Final question. Does anyone know if every suspect in recent months transported in Baltimore by a police van is secured with a seatbelt?

Two years ago I was on a jury in a med-mal case that took four weeks, and the plaintiff’s lawyers kept changing their theory of what the defendants had done wrong on a daily basis. The theory they presented in their opening statement was never heard from again. Every day they’d see that we weren’t buying their current theory, so the next day they’d start pushing a different one.

By the time it came to their closing statement their theory du jour was that the defendant should have tried a different procedure first. But as I pointed out to my fellow jurors, by that point the defendant had realised she was out of her depth, and had called in the hospital attending to help her; he was effectively in charge at that point, so the decision not to try that procedure must have been his. The defendant would obviously have deferred to his judgment. And yet not only was he not a defendant, we didn’t even hear his deposition read, and we didn’t know whether he even gave one! If that really was what went wrong, then why weren’t they suing him? They’d obviously only just come up with that theory at the last minute.

(About a year later I met that attending at a social event, quite by accident, and told him this story, and he had a good chuckle.)

Seems to me if it was truly a rough ride. Donte would have also been injured somewhat. I realized he was buckled in, but I am sure he would have complained of some pain or aggravation if the van was rocking him around to the extent needed to kill Gray.

    Char Char Binks in reply to khunley73. | June 10, 2016 at 4:39 pm

    Allen would probably have complained of injury enough to get some money out of it. Why let an opportunity like that pass?

    fogflyer in reply to khunley73. | June 11, 2016 at 12:17 am

    Allen was NOT buckled in.

    amatuerwrangler in reply to khunley73. | June 11, 2016 at 1:34 am

    I believe that in an earlier post, the one that has a link to the transcript of Donta Allen’s original interview, it was noted that he was asked about a *rough ride* and he said it was not, calling it a smooth ride.

    I am reasonably sure that the defense has already taken steps to get Mr. Allen moved from his jail cell to the witness box.

    And all these years I believed that it was necessary to be really smart to be a lawyer… Where do they find these guys?
    [Present company excepted.]

The Friendly Grizzly | June 10, 2016 at 1:12 pm

DavidC suggests the presence of a vehicle monitoring system. I’m enough of a cynic to believe it was “non-functional”, like police dad cams are found to have been when the data would support the defendant’s case.

Gremlin1974 | June 10, 2016 at 1:32 pm

So a “California roll” through a stop sign isn’t going to cut it and as far as crossing the center line, well the forces if any were generated wouldn’t have been in the right direction to have cause the injury in question, or at least it doesn’t seem so to me.

So after dragging the police officer into court, charging him with felony murder, and subjecting him to thousands of dollars worth of legal bills, the prosecution plans on getting a guilty verdict on…

Failure to stop at a stop sign.

NavyMustang | June 10, 2016 at 4:23 pm

It’s tough enough being a cop in Baltimore. I don’t know how anyone can do it when their “leaders” are out to get them too.

    Gremlin1974 in reply to NavyMustang. | June 10, 2016 at 6:52 pm

    Frankly I am surprised that there hasn’t been a mass exodus from the BPD. They must be using every trick in the book to hold officers in their jobs. I would so be out of there.

    Char Char Binks in reply to NavyMustang. | June 12, 2016 at 2:05 pm

    It must be an easy job now, since they’re not allowed to do much. If I were a Baltimore cop, I’d just put in my time and cash my check, keep my head down, and hope no major crimes happen when I’m close enough to do anything about them.

Does the prosecution’s refusal to turn over the exculpatory Donte Allen interview bear any differently on the case given their new theory?

    Valerie in reply to mariner. | June 10, 2016 at 10:18 pm

    It is some evidence that undermines their theory of the case. That makes it relevant and admissible in the case-in-chief against the officers. In the follow-up civil claims for malicious prosecution and false imprisonment, etc., by the officers against the prosecutor’s office it is evidence of intent and improper purpose. So, it is merely some evidence right now, and a Big F**king deal when damages owed the police officers are calculated.

The way Freddie was banging around , I think they should charge him for giving Goodsen and Donta Allen a rough ride.

Mosby future Clinton Administration Attorney General I’m afraid

Richard Aubrey | June 11, 2016 at 7:22 am

Why isn’t withholding exculpatory evidence a FREAKING CRIME?

I wonder why we never heard about the running of the stop sign and the wide turn before.
I’m waiting until the judge sees the video and rips Schatzow a new one again for a nothingburger.