Author: Andrew Branca

The Baltimore Sun is reporting that the jury in the recently hung jury of Officer William Porter was one vote shy of acquittal on the most serious charge of manslaughter when they were finally dismissed in a mistrial, with 11 of 12 jurors voting for acquittal. This information purportedly is sourced from one of the jurors who requested anonymity in order to avoid being held accountable for violating Judge Barry Williams' gag order. Similarly, on the next most serious charge of assault the jury was 8 to 2 in favor of acquittal with two jurors still undecided at the point the case was declared a mistrial. On the lesser charges, however, there was reportedly a majority in favor of conviction, at least at the point when deliberations were halted. On reckless endangerment, the jury was reportedly 7 to 3 in favor of conviction (two left undecided), and on misconduct in office the jury was 10 to 1 in favor of conviction (one left undecided).

Maryland's Court of Special Appeals (the state's intermediate appellate court) has issued a last minute order (embedded at the bottom of this post) staying the trial of van driver Officer Caesar Goodson, for which jury selection was to begin today, reports the Baltimore Sun.  The purpose of this stay is to allow first for the resolution of a separate matter:  whether Police Officer William Porter could be compelled to testify in Goodson's despite the fact that Porter is awaiting his own re-trial. For further details see last Friday's Freddie Gray Case: Appellate Court Puts Hold On Officer’s Compelled Testimony, which has embedded a number of the relevant motions and orders. This morning's last minute stay was issued by Chief Judge Peter Krauser, who last Friday also issued an order halting trial Judge Barry Williams’ order that Porter be compelled to testify in Goodson's trial.

UPDATED (1/8/16): We've embedded the state's response to the appellate court order at the bottom of this post. UPDATED (1/8/16): We've embedded Chief Judge Krauser's order at the bottom of this post. Well, that was (appropriately) quick. The Maryland Court of Special Appeals, the state's mid-level appellate court, today issued an order halting trial Judge Barry Williams' order that Baltimore Police Officer William Porter could be compelled to testify in the trial of fellow officer Caesar Goodson despite the fact that Porter is awaiting his own re-trial. The order from the Court of Special Appeals, written by Chief Judge Peter B. Krauser, does not seem to be publicly available yet (if anybody has a copy they can send me, let me know in the comments below), and news reports leave the order's full legal rationale and legal is unclear.

Numerous pre-trial rulings were made today by Judge Barry Williams, the trial judge overseeing the "Freddie Gray" trials in Baltimore. Most were unsurprising, but one in particular raised eyebrows: Judge Williams ordered that Officer William Porter, whose case just ended in a mistrial and who is scheduled to be retried in June, can be compelled to testify in the trials of the other five officers charged in Freddie Gray's death. In particular, Porter will be compelled to testify in the next scheduled "Freddie Gray" trial, that of Officer Caesar Goodson, the driver of the van in which Freddie Gray suffered his traumatic neck injury. Jury selection for the Goodson trial begins next Monday. Judge Williams' ruling came in the form of today's denial of a motion by Porter's defense counsel to quash a prosecution subpoena for Porter to testify at Goodson's trial.

The re-trial of Baltimore Police Officer William Porter has been scheduled for June 13, 2016,according to reporting by The Baltimore Sun. By that time the trials of the other 5 officers charged in Freddie Gray's death will have been completed.  Absent immunity, Porter therefore remains vulnerable to criminal prosecution throughout the course of those other trials, and can therefore not be compelled to provide testimony in them. This also means that Porter's statement to investigators shortly after Gray's death and his testimony in his own trial will not be admissible in these subsequent trials of the other officers, as the defense counsel in the other trials would not have the ability to "confront the witness." The next Freddie Gray trial is to be that of police van driver Officer Caesar R. Goodson Jr., which is scheduled to begin in just two weeks, on January 6, 2016. Goodson faces the most serious charges brought against the officers, that of second-degree murder. He has also been charged with second-degree assault, two counts of vehicular manslaughter, and misconduct in office.

I have been rather amused the last 48 hours or so watching the Progressive news media (but I repeat myself) in the aftermath of the hung jury in the “Freddie Gray” trial of Baltimore Police Officer William Porter. The media’s efforts to avoid acknowledging what an unmitigated disaster this outcome was for much-heralded State’s Attorney Marilyn Mosby brings to mind the combat scene between King Arthur and the Black Knight in “Monty Python and the Holy Grail.” Even as King Arthur cleaves off the Black Knight’s limbs in succession, the Black Knight adamantly insists “its only a flesh wound!”

The trial of Baltimore Police Officer William Porter ended in a mistrial today, with Judge Williams accepting that the jury was hung on all four criminal charges brought against Porter in the aftermath of the in custody death of Freddie Gray. Update: For those curious about what the jury vote breakdown might have been, don't get your hopes up. The court definitely won't release an official breakdown (Judge Williams said so explicitly), and the jurors themselves might be inclined to leak the info but they're technically under a gag order issued by Williams.  So, even if one of the jurors does leak they won't want to be publicly associated with the leak for fear of being held in contempt, so the leaked information can't be validated. Officer Porter is, of course, subject to re-trial on all four charges: involuntary manslaughter, second degree assault, reckless endangerment, and misconduct in office. (Update: It's being reported that the parties will meet before an administrative judge tomorrow to set a date for the retrial of Officer Porter.) The mistrial must be seen as a stinging rebuke to State's Attorney Marilyn Mosby, who rushed to charge Porter and six other officers before the police investigation into the matter had even completed.  Many legal experts, including myself, have been of the opinion that not only were the prospects for a conviction slight, but that the charges should never have been brought in the first place. Page Crowder, a Baltimore State's Attorney for 21 years before retiring, has been perhaps the best-informed critic of Mosby's impetuous conduct in this case, noting at her blog during the trial:

UPDATE: (12/16/15, 3:16PM):  MISTRIAL, JURY HUNG ON ALL FOUR CHARGES.

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UPDATE: (12/16/15, 3:01PM):  Told that both Porter and Mosby are in the courtroom.

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UPDATE: (12/16/15, 2:43PM):  State's Attorney Mosby is in the courtroom, first time since deliberations began.

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UPDATE: (12/16/15, 2:34PM):  Another buzz from the jury.

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UPDATE: (12/16/15, 12:38PM): Jury breaking for lunch.

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UPDATE: (12/16/15, Noon): Jury requested a transcript of witness testimony. This request was denied. The identity of the particular witness was not released.

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UPDATE: (12/16/15, 11:54AM): Prosecution arrives at courthouse to hear what jury note is all about.

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UPDATE: (12/16/15, 11:38AM): There are reports of a "buzz" from the jury, and CNN is reporting that the jury has a message for Judge Williams.  WBAL TV reports the jurors have a question. Might be merely a lunch-related matter.

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Today begins the third day of deliberations in the "Freddie Gray" trial of Baltimore Police Officer William Porter. Porter is on trial for involuntary manslaughter (10 year penalty), second-degree assault (10 year penalty), reckless endangerment (5 year penalty), and misconduct in office (undefined penalty). These charges stem from the in-custody spinal injury of Freddie Gray in a police van following his arrest on April 12. Gray would die some days later. We've covered the "Freddie Gray" matter extensively from its inception, here at Legal Insurrection. We'll keep you updated here as news emerges over the course of the day. In the meantime, you can follow along with the day's developments in the Twitter feed embedded below.

UPDATE (5:37PM, 12/15/15): That's it for today, folks. No verdict, and jury sent home for the night. Deliberations start up again in the morning.

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UPDATE (4:01PM, 12/15/15): In a shocking statement, trial Judge William Barry told the hung jury to "Compromise if you can do so without violence to your own moral judgement," according to reporting by ABC News.

Such a statement coming from a trial judge is shocking because "compromise verdicts" in criminal cases are anathema to American concepts of jurisprudence and due process.

Each juror is sworn to vote for a guilty verdict on a charge only if they honestly believe that each and every element of that charge has been proven beyond a reasonable doubt.

If they do not so honestly believe this to be the case for a given charge, they are sworn to vote not guilty on that charge. Period.

This lies at the core of the legal mandate that the defendant has the presumption of innocence.

There is no proper room for compromise in such a judicial framework.

While it is true that criminal trial jurors do from time to time arrive at so-called compromise verdicts, such instances are considered defects in the judicial system, not legitimate outcomes.

If ever there were grounds for reversal of any conviction, this is it.

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At 3:40PM the jury in the "Freddie Gray" trial of Baltimore Police Officer William Porter sent out a note to Judge Williams that they were deadlocked.

As is normal in such cases the Judge essentially just told them to try again. It's reported that he re-read the jury charges to them prior to sending them back into deliberations, also normal. There was no word on whether he also read them an Allen charge, named after the 1896 Supreme Court case in which they first approved the instruction (Allen v. United States, 164 US 492). The Allen charge is a jury instruction used specifically in such circumstances in which the jury reports they cannot arrive at a unanimous verdict. It essentially reminds the jury of all the resources and time that have been put into this trial, notes that another jury is unlikely to be better suited to reaching a verdict than they are, and tells them to get their act together, get back into the jury room, and come back with a verdict, darn it!

The defense counsel for Officer William Porter has moved for a mistrial after discovering that the Baltimore City Public Schools sent home a letter with students cautioning parents in which the CEO of the school system wrote:

I am very concerned about the possibility of civil disorders following announcements of the verdict.

That full letter is embedded below.

UPDATE (12/14/15, 5:39PM): Jurors dismissed for the day, back to deliberations at 8:30AM tomorrow. UPDATE (12/14/15, 5:22PM): Both prosecution and defense agree with Judge Williams that no additional legal definitions will be provided to the jury. UPDATE (12/14/15, 5:11PM): Jury asks for legal definitions of "evil motive," "bad faith" and "not honestly."  That doesn't bode well for a conviction.  Hard to get a unanimous jury verdict on a charge if the jurors aren't even sure they understand what the required elements mean. UPDATE (12/14/15, 5:09PM): Jury asks for transcripts of radio recordings and of Porter's interview. Those transcripts were never introduced into evidence, however, but merely used for demonstrative purposes.  Judge Williams declines to provide them.   Today the jury in the “Freddie Gray” trial of Baltimore Police Officer William Porter was instructed by Judge Barry Williams, both the prosecution and the defense made their closing arguments, and the jury began their deliberations.  Keep your eyes here for breaking news on a verdict. Nothing I saw today served to change my opinion that, legally speaking, the defense was in far the superior position, and that indeed it appears most likely that not only did Porter do nothing illegal, he did more than he need have. Of course juries are unpredictable. Officer Porter on trial for involuntary manslaughter, second-degree assault, misconduct in office, and reckless endangerment following the in-custody injury and later death of local community drug dealer Freddie Gray. Gray had suffered an 80% cleavage of his spinal cord while traveling in a police van after being arrested, from which injury he would die some days later. An additional five Baltimore Police Officers face similarly serious charges arising from the incident, all of whom are scheduled to stand trial in coming weeks. [caption id="attachment_125787" align="alignnone" width="600"] [Baltimore Police Officers charged in Freddie Gray Case - William Porter lower left][/caption]

Today the defense wrapped up their case in the “Freddie Gray” trial of Baltimore Police Officer William Porter. The jury has been dismissed for the weekend, and closing statements will be completed on Monday. I would not be surprised if the jurors went into deliberations Monday afternoon, or Tuesday at the latest. In brief, it appears to have been another terrible, horrible, no good, very bad day for the State’s prosecutors. For a detailed analysis of the legal issues in the case, see yesterday’s post: Freddie Gray Trial: Defense Witnesses Further Crush State’s Case.  As in our previous posts, the following is based largely on the reporting from the Baltimore Sun. Officer Porter on trial for involuntary manslaughter, second-degree assault, misconduct in office, and reckless endangerment following the in-custody injury and later death of local community drug dealer Freddie Gray. Gray had suffered an 80% cleavage of his spinal cord while traveling in a police van after being arrested, from which injury he would die some days later.

We’re now into the second day of the defense’s case in the “Freddie Gray” trial of Police Officer William Porter, and it looks more and more like this prosecution has even less of a leg to stand on than did the prosecution of George Zimmerman. In the Zimmerman trial one could at least reasonably argue that Zimmerman made a tactical, if not legal, error in placing himself in an ambush zone, and got himself ambushed. In Porter’s case it looks increasingly like he did nothing, literally nothing, wrong in his interactions with Gray. For illustrative purposes, let’s consider the most serious of the charges for which Porter is being tried, involuntary manslaughter (essentially the same analysis applies to the lesser charges of second-degree assault, misconduct in office and reckless endangerment, as well, but I only have so much time for blogging). First let’s note that even the prosecution concedes that Porter committed no affirmative act that caused Gray harm. They are therefore attempting to convict him of involuntary manslaughter based on a failure to act, an “act of omission.”

Today the defendant in the "Freddie Gray" trial, Police Officer William Porter, took the stand from about 11:00am to 3:30pm to testify on his own behalf.  He testified both on direct examination by his defense attorneys and on cross-examination by prosecutor Schatzow.  (The following recounting, and particularly any quotes, is largely based upon the periodic tweets sent out by journalist Justin Fenton from his live Twitter feed (@justin_fenton) and from his end-of-day Baltimore Sun post with colleague Kevin Rector.  My independent remarks are in parenthesis.)

Direct Examination

Direct examination of Porter was begun by defense counsel Murtha.  He asked why Porter had not called for medical attention for Gray early on in the encounter, and Porter replied that he did not do so because Gray "was unable to give any reason for any kind of medical emergency," and  because he couldn't see any visible signs of a need for medical attention. Asked why he didn't seatbelt Gray into the van, Porter replied that no one gets a seat belt. He went on to explain that he has participated in one manner or another in 150 arrests involving a police van, and has never seen any suspect belted in.