Freddie Gray: The Relevance of Donte Allen’s Changing Eyewitness Testimony

Freddie Gray: The Relevance of Donte Allen’s Changing Eyewitness Testimony

Last week we posted about how prosecutors in the current Freddie Gray trial of van driver Caesar Goodson had concealed from Goodson’s defense attorneys an interview they had conducted with one Donte Allen.  Accordingly, the defense filed a motion for the dismissal of the charges against Goodson, a motion denied by trial Judge Barry Williams.

In order to understand the relevance of witness Donte Allen, it is worth recalling exactly his role in the events surrounding the arrest and transport of Freddie Gray, and accordingly how his testimony might be relevant to determining the criminal liability, if any, of Officer Goodson.

Assistant Medical Examiner Dr. Carol Allan provided the most detailed accounting of the events surrounding Freddie Gray’s transport in the police van, including his physical condition during that transport and especially at specific stops along the route, in her report.

Although this autopsy report has not been made public, on June 24, 2015 the Baltimore Sun published relevant sections of the report from a copy that they managed to obtain. The quotes embedded below come from a single contiguous section of that report as published by the Sun.

The quoted sections of the autopsy report describe six distinct stops of the police van transporting Freddie Gray, with the first “stop” being when Gray was initially placed in the van, and the sixth and final “stop” being when the van arrived at Western District Police Headquarters and Gray was provided with professional medical attention for his neck trauma.

1st stop: Freddie Gray initially placed in right-hand compartment of police van

Mr. Gray is seen on video entering the right hand compartment of the van, bearing weight on his legs and actively speaking. He was reportedly placed on the metal bench running from front to back along the outside wall of the van (the bench measures approximately 13″ wide and 8′ long allowing for 19″ between the metal wall dividing the van into two discrete compartments and the bench edge). After the inner and outer doors were closed, it is reported that Mr. Gray could be heard yelling and banging, causing the van to rock. Originally the destination of the van was Central Booking; however, several intervening stops were made before it was finally diverted to the Western District headquarters.

2nd stop: Ankle restraints placed on energetic Freddie Gray

The 2nd stop was several blocks down (on Baker Street) to place an identification band and leg restraints on Mr. Gray. Reportedly, Mr. Gray was still yelling and shaking the van. He was removed from the van and placed on the ground in a kneeling position, facing the van doors, while ankle cuffs were placed, and then slid onto the floor of the van, belly down and head first, reportedly still verbally and physically active.

3rd stop: Van Driver Goodson Observes Freddie Gray

The 3rd stop was captured on video at Mosher Street and North Fremont Avenue, where the van driver stopped the van, got out and looked in the back of the van.

(It is worth noting here that that the first Freddie Gray” trial of Officer William Porter, medical examiner Dr. Allan testified that she believed that Gray’s traumatic neck injury occurred between the 2nd and 4th stop–so, prior to the next stop described, which is the 4th. This would require that Gray, having already suffered his neck injury, and injury that has been described as severing the spinal cord, could nevertheless engage in all the physical actions later described in this narrative. This seems to stretch credulity to the breaking point.)

4th stop: Freddie Gray Communicates Difficulty Breathing

The van proceeded to the 4th stop (at Dolphin Street and Druid Hill Avenue) where the van driver called for assistance to check on Mr. Gray. The assisting officer opened the doors and observed Mr. Gray lying belly down on the floor with his head facing the cabin compartment, and reportedly he was asking for help, saying he couldn’t breathe, couldn’t get up and needed a medic. The officer assisted Mr. Gray to the bench and the van continued on its way until it was diverted to pick up another individual who was in custody. (emphasis added)

5th stop: Donte Allen placed in left-hand compartment of police van

At this 5th stop (at North Avenue and Pennsylvania Avenue), Mr. Gray was found kneeling on the floor, facing the front of the van and slumped over to his right against the bench, and reportedly appeared lethargic with minimal responses to direct questions. The second individual [Donte Allen] was placed in the left hand compartment of the van and the vehicle was driven to the Western District headquarters. By report, this second detainee [Donte Allen] said that he heard Mr. Gray banging and kicking through the metal divider. (emphasis added)

6th stop: Western District Headquarters.

On arrival, Mr. Gray was found in a kneeling position, unresponsive and not breathing. Emergency medical services were activated and he was transported to University Medical Center with active resuscitation.

Note that Dr. Allan’s autopsy report provides us with several pieces of circumstantial evidence useful to determining whether it is likely that van driver Officer Goodson might be guilty of any of the charges brought against him:  depraved-heart second-degree murder, manslaughter, second-degree assault, misconduct in office and reckless endangerment.

State prosecutors have put forth three competing theories of the case for Goodson’s criminal guilt.

Theory of the Case #1: Murder by Failure to Seat Belt

First, prosecutors have alleged that Goodson failed in a legal duty to seat belt Gray into the van.  One difficulty with this theory is that it remains entirely unclear whether Goodson had been actually informed of the seat belt policy, which had been adopted by Baltimore Police Department only days earlier.  Another difficulty is that policies of this type are always ultimately guidelines, and subject to the discretion of the police officer on the scene in the broader context of the safety of both the officers and suspects involved.  The State has not been emphasizing this theory of the case so far in Goodson’s trial.

It is also notable that in Donte Allen’s initial statement to police he indicated that he himself was not seat belted into the van, yet managed to arrive safely, albeit while having to listen to Freddie Gray apparently beat his head on the inside of the van’s other compartment:

Det. Poremski: When they put you in the wagon, did they seatbelt you in? Were you seat belted?

Mr. Allen: Who, me?

Det. Poremski: Yeah.

Mr. Allen: Well I wasn’t seat belted in.

Theory of the Case #2: Failure to Provide Prompt Medical Care

Second, prosecutors have alleged that Goodson failed in a legal duty to provide care to Gray since Goodson knew that Gray was in dire need of medical care for the severe neck trauma that ultimately killed him, but that Goodson had nevertheless failed to provide access to this necessary medical care.

Prosecutors must establish two key elements in order for this theory of the case to lead an impartial jury to conclude beyond a reasonable doubt that Goodson is guilty of any the charges against him.  First, at some point in time Goodson was aware of Gray’s desperate need for medical care, and second, that he failed to take advantage of the first reasonable opportunity to provide access to such care.

But does the evidence support such a narrative?

If we look at the medical examiner’s report, we see that Freddie Gray was sufficiently vigorous during the transit between the 5th stop and the final 6th stop (at which Gray received medical care) that during this portion of the transport Gray was making a tremendous amount of noise in his compartment of the van.  Donte Allen, who went into the police van at the 5th stop, gave testimony that led to this conclusion.  Allen initially told the police that he heard Gray banging and kicking through the metal divider–a degree of energetic activity that could obviously only have been heard by Allen between the 5th stop, when he was first placed in the van, and the 6th and final stop.

In addition, as reported by the Baltimore Sun, Assistant Medical Examiner Dr. Allan testified in the trial of Officer William Porter that “The injury to Gray’s spinal cord would have caused loss of function of his limbs … ”  As noted above, Dr. Allan also testified that she believed that Gray’s neck injury occurred between the 2nd and 4th stop.

Dr. Allan’s own autopsy report, however, notes that at the 4th stop–by her claim after Gray’s spinal cord had effectively been severed–“[Gray] was asking for help, saying he couldn’t breathe, couldn’t get up and needed a medic. The officer [Porter?] assisted Mr. Gray to the bench …”  Is it credible that a single police officer lifted the body of Gray, presumably completely inert because of a claimed severed spine, into a seating position on the van’s bench seat?

In addition, based upon Donte Allen’s statement to police we know that Gray still had the function of his limbs after the 5th stop, and we know (again for Dr. Allan’s own autopsy report) that Gray was still responsive to officers (albeit “minimally” responsive), and that therefore Gray’s traumatic neck injury, an injury that effectively severed his spinal cord, could not have occurred prior to that 5th stop.

Particularly relevant here is the transcript of Donte Allen’s first interview by police.  The following captures Allen’s interview by Detective Michael Boyd on April 12, 2016.  It is noteworthy that this is later in the same day as the date of Gray’s injury in the van, and thus very likely occurred before the “police brutality” narrative had been developed and promulgated around the case. At this point, Allen had no reason to believe there was anything particularly noteworthy about the events in question.

Det. Boyd: Take me back to like that point and what was going on, you know, without saying what happened beforehand. See what I’m saying?

Mr. Allen: Well when I was in the police van, we were just riding, and I heard some – I didn’t know somebody was on the other side at first. You know what I mean? But I heard him telling – banging himself. I know there was nobody in the – nobody else in there but me and him. Once I found out he was in there, and I found out, you know, what happened – he was banging. It sounded like he was banging his head against the metal, like he was trying to knock himself out or something.

…

Det. Boyd: Was he saying anything when he was banging his head?

Mr. Allen: No, he was just banging his head. – and I thought it was a fiend, like a dope fiend or something like that. You know what I’m saying? That’s what I thought.

…

Det. Boyd: Okay. So as he is banging his head and banging his head, you guys are continuing down the road, and then he just stops?

Mr. Allen: Mm-hmm. And then we got there and I realized, I was like, man, he probably knocked himself out. They said he was unconscious.

…

Mr. Allen: But yeah, he definitely was banging his head, and I don’t know what’s wrong with him.

…

Det. Boyd: How hard was he banging his head, stuff like that.

Mr. Allen: He was banging it pretty hard. He was banging his head pretty hard.

Det. Boyd: Do you fell like he was trying to knock himself out?

Mr. Allen: If somebody hit their head that hard, they probably —

…

Det. Boyd: Okay. How did you know it was his head? I mean, you heard —

Mr. Allen: Yeah, it can’t be nothing else because he got his hands behind his back. — handcuffs on — so I can only think he’s doing something like this or banging hsi head up there like that.

This certainly suggests that Gray did not have his spinal cord severing injury until sometime during the ride with Donte Allen, that is between the 5th stop when Allen was placed in the van and the final 6th stop at Western District headquarters.  Obviously, if the neck injury did not occur until after the 5th stop, then it could not possibly have been discovered prior to the 6th stop, and it was at the 6th stop that Gray was promptly provided with medical care.  Under this scenario, supported by the actual evidence, there was no delay in providing Gray medical care from the time at which his neck injury was discovered.

Of course, we now know that Donte Allen backtracked on the initial statement he gave to police, and on which Dr. Allan based her autopsy report’s description of the transport between the 5th and 6th stop.  In later interviews with police and the media, particularly in a May 1 sidewalk interview with a reporter, Donte Allen began to claim that:

Allen: When I got in the van, I didn’t hear nothing. It was a smooth ride. We went straight to the police station. All I heard was a little banging for about four seconds. I just heard little banging, just little banging.

Of particular interest is Allen’s last response to the reporter’s question:

Reporter: Did you tell the police that you heard him [Gray] banging his head against the van?

Allen [shocked face]: I told homicide that. I don’t work with the police. I did not tell the police nothing.

In short, Allen does not deny the statement, he merely clarifies to whom he made the statement–to “Homicide,” not the “police.”  The distinction could have real-world consequences for Allen in his community.  The “police” likely means uniformed officers, who may be perceived by the community as hassling local residents and who certainly are the personnel using force in making arrests. “Homicide,” on the other hand, are the plain-clothes officers like Detective Boyd who generally treat suspects with a degree of respect as part of the interview techniques for soliciting useful information, and who generally are only brought in for the more serious crimes, such as murder.  It might well be seen as acceptable in Gray’s community to speak with “Homicide,” if necessary, but not to speak with “the police.”

When a witness so radically changes their testimony in this way, one cannot help but wonder why the change might have occurred.  So, let’s indulge ourselves.

One consideration in this regard is that when Donte Allen made his initial statement about “banging and kicking” he did not know that the person he was describing was Freddie Gray, nor could he possible have known the political forces that would soon be swirling around Gray’s death a few days later.  Once Gray had become characterized by prosecutors and the media as a martyr of police brutality, Allen would be well aware that any statement by him that could be perceived as disparaging that narrative would likely make him anathema in his community.  This alone might have led to Allen change his story to one that was more consistent with a narrative of police brutality.

Indeed, we know that Allen became concerned about his safety following the disclosure of his initial statement to Detective Boyd.  When Allen shared his later, modified narrative with CBS Baltimore on April 30, he explained:

Allen: I had two options today right, either come and talk to y’all and get my credibility straight with ya’ll and not get killed by these [expletive] or not tell a true story.  The only reason I’m doing this is because they put my name in a bad state. (emphasis added)

It would also be interesting to know whether any person or persons with a vested interest in driving a particular narrative might have intervened with Donte Allen in the span before his initial “banging and kicking” story and his later “just a little banging” story.  Of course, anyone engaging in such an intervention would want that act to remain secret.

In this light, the prosecution’s failure to inform Officer Goodson’s defense counsel of a “proffer meeting” they held with Donte Allen during the period between Allen’s “banging and kicking” story and his later “just a little banging” story becomes a bigger deal.  Might the prosecutors, who have invested enormous resources and their own professional credibility behind the “police brutality” narrative, have engaged in behavior designed to drive Allen to change his story to favor the prosecutors’ narrative.

Curiously, prosecutors claim to have maintained absolutely no notes or records of their, until this week, secret meeting with Donte Allen.

Things that make you go, hmmm.

Prosecutors did have one purported piece of evidence that they apparently believed would allow them to advance this theory of the case that Goodson was aware of Gray’s need for medical care prior to the 5th stop, and thus delaying medical care until the 6th stop was sufficient evidentiary basis for holding him criminally liable of depraved-heart second-degree murder and the other charges brought against him.

This piece of evidence also appeared in the autopsy report of Assistant Medical Examiner Carol Allan, and given to her by Detective Syreeta Teel.  Detective Teel had an early, unrecorded discussion with Officer William Porter, and claims that Porter recounted to her that Gray said at an earlier stop that he was having difficulty breathing.  Given this alleged statement, the failure of the officers to provide Gray with immediate treatment for his distress was found by Dr. Allan to be sufficient basis to characterize Gray’s death as a homicide rather than an accident.

Unfortunately for prosecutors, during a later recorded interview of Officer Porter by Detective Teel, Porter made no similar statement.  In addition, when Porter testified at his own trial he denied ever having made such a statement at any time.

Last week Goodson’s defense counsel filed a motion in limine to have the purported statement excluded from Goodson’s trial, and trial Judge Barry Williams agreed.  Thus this basis for claims of Goodson’s criminal liability appears to have been stripped from the prosecutor’s quiver.

What are prosecutors to do, then, but desperately lunge for a third theory of the case?

Theory of the Case #3: Rough Ride

In light of the difficulties the prosecution faced with the first theory of the case (murder by failure to seat belt) and the second theory of the case (the timing of Gray’s injury and the officer’s knowledge of that injury), prosecutors have now found themselves falling back on a third theory of the case.  activists and the media (but I repeat myself) have pushed this one early on, but never formally advanced by the prosecutors until Goodson’s trial began last Thursday.

this theory states that Gray suffered his traumatic neck injury because Goodson engaged in a practice known as a “rough ride.”  A “rough ride” occurs when a prisoner in a police vehicle, presumably not seat belted in place, and the driver subjects the vehicle–and thus the suspect, to violent changes in velocity (speed and/or direction).  This would result in the suspect being hurled about inside the vehicle, and experiencing the kinds of contusions that one would expect under the circumstances.  Certainly, it is not difficult to imagine that a prisoner subject to a “rough ride” might find themselves thrown onto their head and suffering the kind of injury experienced by Gray.  In light of the fact that a “rough ride” is an inherently malicious act, a death resulting from a “rough ride” might well qualify as depraved-heart murder, the most serious charge faced by Goodson.

There is, however, a modest weakness for the prosecutors in advancing this theory of the case:  There appears to be little or no evidence that Goodson subjected the vehicle or Gray to anything like the abrupt changes in velocity necessary to constitute a rough ride.

How do we know this?  It’s difficult, of course, to prove a negative, but circumstantial evidence strongly suggests prosecutors simply don’t have a foundation for the “rough ride” theory.

First, if they did possess such evidence they would have been screaming it from the rooftops, as that alone would be sufficient to prove Goodson’s guilt beyond a reasonable doubt.

Second, in the prosecution’s opening statement, in which they made their first reference to “rough ride” evidence, they merely claimed that Goodson allegedly “rolled through” a stop sign, and that at one point the van crossed the center-line of the roadway.  Given that “rolling through a stop sign” is actually an absence of an abrupt change in velocity, this can hardly constitute a “rough ride.”  Similarly, crossing over the center-line of a roadway does not inherently involve an abrupt change in velocity, absent an abrupt correction.  Perhaps Goodson might be subject to a pair of traffic tickets, but a criminal conviction on this evidence seems unlikely.

There’s also the matter–yes, again–of Donte Allen’s initial statement to police on April 12:

Det. Poremski: Okay. And your ride over, do you remember, when you were riding there, did you hit any big bumps, potholes? Did you — was it a smooth ride? Was it rough? Was it, you know, any kind of —

Mr. Allen: I was fine.

Det. Boyd: There wasn’t no tossing or turning, no like sudden stops or nothing like that?

Mr. Allen: No.

Det. Boyd: Didn’t speed up, slam on the brakes and slam you, nothing like that?

Mr. Allen: — over the railroad tracks real fast.

Det. Boyd: So it was just a smooth ride?

Mr. Allen: Smooth ride.

Det. Boyd: So nothing? At any point, you didn’t hit your head.  You didn’t — a bump or anything like that?

Mr. Allen: Ain’t no reason to.

Det. Boyd: So it’s safe to say, in your opinion, if [Gray] was banging his head, he was doing it of his own accord?

Mr. Allen: Yes sir.

Det. Boyd: Wasn’t nobody force him? It wasn’t like the way the officer was driving or anything like that?

Mr. Allen: No sir.

Today: Day Three of Goodson’s Trial

So far today it’s been reported that Officer William Porter, the defendant in the first “Freddie Gray” trial which resulted in a hung jury, has taken the witness stand in Goodson’s trial.  We have no reports yet of his substantive testimony, but hope to have more for you later today, when the reporters covering the trial are able to file their stories.

Until then.

–-Andrew, @LawSelfDefense

[Update 6/13/16, 5:45PM: Added additional content from the transcript of Donte Allen’s initial interview with detectives on April 12, 2015.]

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