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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