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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