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Freddie Gray: Van Driver Goodson Opts for Bench Trial

Freddie Gray: Van Driver Goodson Opts for Bench Trial

Judge Williams also excludes as direct evidence alleged “I can’t breath” statement by Gray

Police officer Caesar Goodson, the driver of the van in which Freddie Gray suffered his traumatic neck injury, has opted for a bench trial, reports the Baltimore Sun yesterday.  Among the six officers charged in the matter of Freddie Gray, Goodson faces the most serious charges.  These include depraved-heart murder, manslaughter, second-degree assault, misconduct in office, and reckless endangerment.  The murder charge alone is a second-degree felony with a maximum sentence of 30 years. Goodson is 46 years of age.  Goodson’s trial proper is to begin on Thursday.

In an important ruling yesterday, trial Judge Barry Williams held that prosecutors would be prohibited from introducing into evidence a statement the State alleges to have been made by Police Officer William Porter that Gray had said “I can’t breath.”  The claim that Goodson was aware of this claimed statement is essential to the argument that Goodson was aware of Gray’s need for medical care and therefore bears criminal liability for failing to provide such care.

Indeed, it was on the basis of this alleged statement that Medical Examiner Carol Allan purportedly found that Gray’s death was a homicide rather than an accident.  As reported by the Baltimore Sun, Allan”would not have concluded Gray’s death was a homicide if Goodson had taken Gray directly to the hospital after the van’s fourth stop, suggesting that the officers’ disregard for Gray’s alleged comment at that stop that he couldn’t breathe was a key factor in her determining the manner of Gray’s death.”

The provenance of the claimed statement is questionable, however.  Detective Syreeta Teel claimed that Officer Porter said he heard Gray say “I can’t breath” during an unrecorded phone conversation with her three days after Gray’s arrest.  When Porter later made a recorded statement, however, he did not repeat that comment.  Further, when he testified in his own trial he denied ever having made that statement.

Even had the statement been made, introducing the out-of-court statement in Goodson’s trial for purposes of its truth is almost certainly hearsay, making the statement inadmissible for that purpose.

Prosecutors may still be able to “backdoor” the statement into evidence, however, when they call ME Allan to testify in Goodson’s trial.  Generally such an expert witness is permitted to testify as to the basis of her conclusions, without necessarily claiming that the underlying basis is correct or true.  Given that Allan based her conclusion of homicide in large part on the alleged statement, the statement may be admissible on that basis even if not admissible for the truth of the statement.

It is notable that the defense had submitted a motion to Judge Williams seeking to cut off this “backdoor” avenue for getting the “I can’t breathe” statement into evidence, and Williams yesterday denied that motion.

The risk in a jury trial here would be that the jury would be unable to differentiate between hearing “I can’t breath” as the basis for Allan’s conclusion without also taking “I can’t breath” for the truth of the statement.  On the other hand, in a trial jury, the defense has the prospect for preventing the jury from hearing any evidence of the statement at all.  Obviously, here in a bench trail Judge Williams already has knowledge of the alleged statement.  On the other hand, one would expect him to have the legal discipline to only apply the claimed statement in an appropriate manner.

Of course, even if the prosecution does backdoor the “I can’t breath” statement, Allan cannot claim to have personal knowledge of Porter having made the statement, as Allan was not personally present at the time.  Allan relied upon the statement being recounted to her by others.  To the extent that the defense can undermine the legitimacy of the statement, upon which Allan admittedly largely based her conclusion of homicide, the defense is effectively undermining the legitimacy of Allan’s conclusion of homicide.

Presumably we can expect some fireworks between the prosecution and defense on this point when the trial reaches the point of Allan’s testimony.

Unless the prosecution is able to get the “I can’t breath” statement into the record in one manner or another, however, they will need some other evidentiary basis on which to build their theory of the case that Goodson is guilty of murder for having failed a legal duty.  The Baltimore Sun piece linked above suggests the prosecution may return to an early theory that Goodson had subjected Gray to a “rough ride” in the back of the van.

The difficulty with that argument is that there has never been any evidence whatever that such a “rough ride” ever occurred. Further, if prosecutors had any such evidence they presumably would have built it into their theory of the case from the first day.  It is therefore reasonable to presume that evidence of a “rough ride” simply does not exist.

That’s it for now, folks.  Keep your eyes here for continual Freddie Gray coverage as the circus continues.

–-Andrew, @LawSelfDefense

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I could easily be wrong, but I think this may be Mosby’s last turn at bat. Either she scores or she’s done.

    sequester in reply to Ragspierre. | June 7, 2016 at 1:04 pm

    Is there any claim that this “I can’t breathe” statement was made in the presence of defendant Goodson or that Goodson was contemporaneously informed of the statement? S

      Ragspierre in reply to sequester. | June 7, 2016 at 1:29 pm

      None I know about.

      rabid wombat in reply to sequester. | June 7, 2016 at 7:14 pm

      If you can speak, you can breathe…you are moving air.

        ijustwanttovote in reply to rabid wombat. | June 7, 2016 at 9:06 pm

        I thought that we learned from the death of Eric Garner that it is indeed possible to speak (exhale) without being able to breathe (inhale).

          Eric Garner? Wasn’t that the guy in NYC who died as a result of non-compliance with lawful arrest, and pre-existing morbid obesity and cardiovascular disease?

          That was Garner, right?

          –Andrew, @LawSelfDefense

          Entirely his fault. But why did the State make selling “loosies” an arrestable offense (thereby allowing force to be used if the perp resisted arrest)

          “But why did the State make selling “loosies” an arrestable offense (thereby allowing force to be used if the perp resisted arrest)”

          Because it’s NY, and NY is run by a-holes. Why I moved out.

          Also, it’s the only way they can enforce their ridiculous ~$10 excise tax per pack of cigarettes, by forcing packs to be sold intact so they can check for the NY tax sticker.

          Regardless, that WAS the law, the cop was simply doing his job, and Garner was simply being non-compliant.

          –Andrew, @LawSelfDefense

          healthguyfsu in reply to ijustwanttovote. | June 7, 2016 at 11:55 pm

          Yes, this the New York, home of the soda tax, the taxicab union mafia, and all of the idiocy of the left that makes them think they are special snowflakes from the big apple.

Morning Sunshine | June 7, 2016 at 10:40 am

As usual, thanks for the update.

The Freddie Gray Salem witch trials. The van driver was supposed to have medical insight comparable to that of a neurologist.

Exactly right. The prosecution is closer to having a real case against Goodson than against any defendant. If Goodson is acquitted of all charges, their chances of obtaining a conviction against any of the defendants would seem to be remote.

From the above, it seems like the most serious charges against Goodson are going to fail. But it wouldn’t surprise me if the judge convicts him, for “political” reasons, of one or two of the least serious charges. Got to mollify that mob!

Ain’t “justice” grand?

    Gremlin1974 in reply to Wisewerds. | June 7, 2016 at 8:05 pm

    I thought the same thing about the last cop, that he would convict on the misconduct in office charge just to keep the mobs at bay, but I was wrong. Also, him blocking that statement is a huge blow to the prosecution. I be Marilyn Mosby is doing the footie stomp dance through her office right now.

    They will never get “depraved heart” murder.

    ConradCA in reply to Wisewerds. | June 8, 2016 at 11:19 am

    Fat fingers caused down arrow. Sorry.

    The point is to assuage the rage of the BLM criminals for political gain. They aren’t concerned about justice or convictions. The persecutor can always lie and blame racism.

Humphrey's Executor | June 7, 2016 at 12:26 pm

Mosby is 0-1-1 so far but there have been no further riots. The show trials have served their purpose.

Char Char Binks | June 7, 2016 at 12:38 pm

Even the black cop knows better than to trust a black Baltimore jury.

iconotastic | June 7, 2016 at 2:53 pm


Thank you so much for your level-headed reporting on this (and other) trials. The objective accuracy of your reporting has been invaluable to me in understanding these trials and helping formulate fact-based opinions.

Legal Insurrection is one of my top go-to blogs for a number of reasons; not the least of which are your contributions.

Nothing does more to end “systemic racism” by wrongfully convicting an innocent Black cop.

JackRussellTerrierist | June 7, 2016 at 5:12 pm

As always, Andrew, thanks.

I hope this proves to be Mosby’s last gasp. I really don’t care if Baltimore riots again.

In first aid class for when to use the Heimlich maneuver, if someone can say “I can’t breathe”, they can breathe, don’t use it.

Something no one seems to have brought up yet. If you can verbalize, you can breathe.

    Ragspierre in reply to gospace. | June 7, 2016 at 6:29 pm

    At some point in time, Dead Fred really could not breathe. As in, he wasn’t.

    That’s why the declaration is so crucial to the state.

    People who are struggling to breathe don’t say, “I am struggling to breathe”. My severally asthmatic youngest brother never did.

      Valerie in reply to Ragspierre. | June 7, 2016 at 6:48 pm

      Former asthmatic, here. It is possible to talk using painful, shallow breaths.

        Gremlin1974 in reply to Valerie. | June 7, 2016 at 8:26 pm

        You are very correct, as a Nurse I see people all the time who can talk but are having breathing difficulties. However, when that happens there is no doubt that the person in question is having trouble breathing, in the case you point out shallow painful breaths, well its is easy to tell when a human is panting like a dog that something is wrong. Yes you can say; “I can’t breath” when in respiratory distress but it is never full voice and people are going to struggle to understand you.

        Now, why is Gray’s breathing troubles important to the prosecution? Simple they want to use it to establish a “time of injury” during the ride that lets them imply that the cops did nothing for Gray. Because ‘WHEN’ Gray was injured is really the whole key to this thing. Leaving aside the reports that Gray frequently complained of not being able to breath during his many previous arrests. If Gray was injured before that last stop then the cops could be liable, but if his injury happened between the last stop and the police station well that changes everything. Basically the earlier in the ride the prosecution can ‘prove’ Gray was injured the better for their case.

        Now here is my completely unsolicited and unofficial medical thoughts. Because of the “I can’t breath” statement I have looked for any comment or evidence that Gray was in respiratory distress before that final stop. Usually someone will say something that would indicate he was obviously having trouble breathing, but there has been nothing, no slips or even just off hand comments that make me think that any of these officers saw anything like respiratory distress until that last stop.

        I deal with this all the time assessing patients; (When did your toe start hurting the very first time? “This morning”; Then later on you ask the same question in a different way; So this has never happened to you before? “Nope, well not really just like this.”)

        The second thing is Gray’s injury itself, which I think will play a much bigger role in this trial than in all previous ones. Gray’s neck broke in such a way that it resembled an injury sustained in a shallow water diving accident. Gray’s spinal cord was Kinked and according to the records was for all intents and purposes severed. This kind of injury would not lead to difficulty breathing, it would lead to Gray not breathing, which is what was noted at the last stop. Also, it is doubtful that Gray would even be conscious after such an injury.

        So if Grays injury happened at any point before between the final stop and arriving at the station then Gray would have not claimed that he “couldn’t breath”, because he would have most likely unconscious and unable to breath at all.

          Valerie in reply to Gremlin1974. | June 7, 2016 at 10:38 pm

          This is what bothers me about this case.

          Freddie had a reputation for putting on a big show when he was arrested, and also faking injury. Apparently this is a thing among a certain class: fake an injury, go to the hospital, where it is easier to get out. I don’t know that this happened. What I wonder is whether a normal cop can be expected to tell the difference between a newly-injured person (that he did not see injured) and a faker?

legalbeagle | June 7, 2016 at 5:42 pm

Please help me catch up on the facts of this case.

In light of this evidentiary ruling, can someone outline for me of a set of facts that the prosecution can proffer to show this police officer acted with depraved indifference to human life or acted recklessly?

I take it to prove reckless conduct the prosecution would have to show that the Officer’s conduct was gross deviation from the standard of care typically used by Baltimore Police van drivers.

I don’t understand the basis of “assault” charges. Did the Officer attack the decedent?

Gremlin1974 | June 7, 2016 at 8:30 pm

“it was on the basis of this alleged statement that Medical Examiner Carol Allan purportedly found that Gray’s death was a homicide rather than an accident.”

I am sorry but this is just one of the most unprofessional things I have heard in this case. Dr. Allen is supposed to make her report based on what she finds during her examination; not what could very well be complete hearsay that is reported by one detective.

    clintack in reply to Gremlin1974. | June 7, 2016 at 10:12 pm


    If it’s true that Dr. Allan reached her legal medical conclusion on the basis of hearsay, and she testifies to that under oath, what are the possible ramifications? Could her finding (of homicide) be overturned? Could she lose her job? Is it standard practice for the Medical Examiner to hear paraphrased out-of-context bits of witness testimony as a part of an autopsy? That just seems nuts.

    userpen in reply to Gremlin1974. | June 7, 2016 at 10:30 pm

    It is my understanding that Gray was taken immediately to the hospital where he underwent emergency surgery on his spinal cord. He did not recover and died in the hospital a few days later. Is it possible he died as result of the surgery, perhaps it was a botched surgery? Did the surgery in any way contribute to Gray’s death? Will the surgeon be required to testify? How can a medical examiner, after Gray had been cut open, had his spine operated on (thus perhaps making the injury worse) and then stitched back together, honestly conclude who bears responsibility for Grays death as regards to the ride in the van versus the surgery? Would not the doctor who operated on Gray be in a better position to do that since he saw Gray’s condition before, during and after the surgery, while the medical examiner saw the body only afterwards? Is it remotely possible that if Gray had not had the surgery he might have survived, albeit as a paraplegic?

      Gremlin1974 in reply to userpen. | June 8, 2016 at 3:35 am

      Frankly those are all questions that I feel were never fully explored. I also never read anywhere that the ME obtained the medical records from the hospital, which would contain things such as films from X-rays, CT’s, and MRI’s that were certainly done prior to surgery.

      I have been a Nurse for 20 years and I have discussed Gray’s case with several physicians (You would be surprised how many are pro-gun and pro-self defense.) and all of them had the same conclusion, even at the point that Gray was operated on he was basically dead. If not from the spinal cord injury itself, but also from a simple lack of oxygen to the brain for a sustained amount of time. He had the cord injury and then was not breathing for an unknown amount of time. From the moment a human stops breathing the damage starts.

      Even if someone is right there and does the best CPR in the World ever, you have 10 minutes. For every minute that goes by the likelihood of permanent life threatening brain damage increases by 10%, so minute 1 = 10%, minute 2 = 20% and so on. Without aid, that ten minutes becomes somewhere between 1 to 5 minutes (Usually closer to 1 minute).

“if Grays injury happened at any point before between the final stop and arriving at the station then Gray would have not claimed that he “couldn’t breath”, because he would have most likely unconscious and unable to breath at all.”

I thought the “I can’t breathe” statement came right after he was detained – he had run from officers, a foot-chase it seems. So I assumed the remark was more along the lines of “Why did you run from us?”….”Hang on a sec I need to catch my breath”

    Gremlin1974 in reply to Fen. | June 8, 2016 at 3:38 am

    Though I may be wrong I seem to remember it being reported that Gray had made the complaint at more than one stop, but like I said, my photographic memory has been out of film for years.

HairyBuddah | June 8, 2016 at 2:15 am

One of my (many) personal failings is a love of watching the TV show COPS. Put a cameraman in a cop car, go for a ride along, and see what happens. Time after time perps are caught on camera dead to rights and spin intricate and sincere stories about their innocence. A frequently used technique to try to get some time to think up a story, or a hope of going to a hospital instead of jail (I also like watching JAIL Las Vegas), or just a reflection of poor personal conditioning after a foot chase, is a classic “I Can’t Breathe”. Lots of perps try that one while their chests are heaving in and out like a very busy bellows. I have seen it dozens of times. Not once did it turn out to be an actual plea for medical help. It was always the ‘ole fakeroo. It is VERY hard to place any serious credence on such a claim without clear medical evidence that such was the case. An “I Can’t Breathe” report really isn’t consistent with a severed spinal cord. It is consistent with perptalk.