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Freddie Gray Tag

In a single-page per curiam decision, the Maryland Court of Appeals (the state’s highest court) ruled today that Baltimore Police Officer William Porter can be compelled to testify in the trials of Caesar Goodson and Alicia White, the two officers who like Porter were most closely involved in Gray’s transportation, according to reporting by CBS News and other sources.  (That order is embedded at the bottom of this post.) It was in the course of this transportation that Gray would suffer the traumatic neck injury that is believed to have ultimately taken his life. In a second order the court reversed the trial court’s early decision that Porter could not be compelled to testify against the three officers most closely associated with Gray’s arrest (but not his transport): Officers Garrett Miller, Edward Nero, and Lt. Brian Rice. The Court provided no rationale for the rulings, noting merely that the decision was made “For reasons to be stated in an opinion later to be filed …”

The Baltimore Sun reports today that city officials will finalize approval of a contract this week to install video cameras inside the Police Department's 23 transport vans, at a cost of $187,000. The impetus for this effort is found in numerous cases of suspects suffering injuries while being transported in the vans. The best known case of this type is, of course, that of Freddie Gray, who suffered a severe spinal injury last April while being transported in a police van. Gray would die some days afterwards. Riots wracked the city following Gray's death, leading to Prosecutor Marilyn Mosby's precipitous criminal charging of six officers involved in Gray's arrest and transport.

Maryland's Court of Appeals (the state's highest-level "supreme court") ruled yesterday that the trials of the Baltimore police officers charged in the Freddie Gray incident will be postponed while they decide whether one of those officers, William Porter, can be compelled to testify against the others. We covered the legal issues in a prior posts: The next officer to be tried was scheduled to be Officer Edward Nero, in whose case jury selection was to have begun this coming Monday. The difficulty in this case, and an area of law without precedent in Maryland, arises because Porter remains vulnerable to criminal prosecution. Porter was the first of the officers to be tried, last fall, but the trial resulted in a hung jury without verdict, and prosecutors immediately stated they would retry the case.

This week saw a flurry of motions from both the State prosecutors and defense counsel in preparation for the upcoming "Freddie Gray" trial of Baltimore Police Office Edward Nero, scheduled to begin February 22.  These were primarily in limine motions, which are motions asking the court to exclude particular evidence from the trial, often because the evidence is arguably irrelevant or prejudicial. One of these motions by Nero's defense counsel, Marc Zayon, asks the court to prohibit the State from presenting arguments and evidence about on the issue of the legality of the spring-assisted knife the arresting officers found in Freddie Gray's pocket.  (This motion is embedded at the bottom of this post.) The defense noted that the State had identified an expert witness on knives, presumably for the purpose of testifying on the legality, or lack thereof of Gray's knife.  Their motion seeks to prevent such evidence and argument on this issue at trial. You may recall that in initially bringing charges against the police officers involved in Freddie Gray's arrest and transport, State prosecutors initially argued that the claimed probable cause for that arrest--Gray's possession of a purportedly unlawful "spring-assisted knife" -- did not in fact exist because the knife in Gray's possession was not illegal as a matter of law.

Judge Barry Williams, the trial judge in the "Freddie Gray" cases, yesterday ruled that Officer William Porter is not required to testify against the three white officers charged in the case: Edward Nero, Garrett Miller, and Brian Rice, reports CNN. Those officers were primarily involved in the initial arrest of Gray, and less so in his transport during which Gray would suffer his traumatic neck injury. Brian Rice Garrett Miller Edward Nero

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.

A reader alerted Professor Jacobson that Legal Insurrection and I got a mention on the Mark Levin Show.  Naturally we tracked down the mention in order to crow about it and share it with you loyal readers (but mostly to crow about it). In fairness, it's probably more accurate to say that Andrew McCarthy mentioned us in his (as always) very good blog post over at National Review about the Freddie Gray prosecutions, The Travesty in Baltimore.  Levin essentially reads McCarthy's post on the air and so includes that mention. Levin does, however, also throw in a bit of a kudos of his own into the mix, interjecting "Legal Insurrection, another great web site." Here's that audio clip.  First there's just the short bit in which we're actually mentioned, then a pause, and then the clip starts playing the entirety of the ~6 1/2 minute segment in which Levin reads McCarthy's post (starting with "I want to address this.").  Enjoy:

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. http://baltimore.cbslocal.com/2015/11/19/officer-william-porter-to-take-stand-in-freddie-gray-trial/ 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.
UPDATE: (12/16/15, 3:01PM):  Told that both Porter and Mosby are in the courtroom.
UPDATE: (12/16/15, 2:43PM):  State's Attorney Mosby is in the courtroom, first time since deliberations began.
UPDATE: (12/16/15, 2:34PM):  Another buzz from the jury.
UPDATE: (12/16/15, 12:38PM): Jury breaking for lunch.
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.
UPDATE: (12/16/15, 11:54AM): Prosecution arrives at courthouse to hear what jury note is all about.
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.
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.


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.


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.
Baltimore school letter 12-14-15 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"]Freddie Gray Baltimore Police Charged Mug Shots [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.
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