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Freddie Gray Tag

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.

The defense has opened with a bang in the "Freddie Gray" trial of Police Officer William Porter, bringing to the stand as their first witness noted forensic pathologist Dr. Vincent Di Maio, who is testifying that Gray's death should have been ruled an accident, not a homicide. As reported by Kalani Gordon at the Baltimore Sun:
Dr. Vincent Di Maio, a forensic pathologist and former chief medical examiner in San Antonio, said Gray's injury was "so violent, it's so high-energy," that it would have immediately caused Gray to lose control of his body and his diaphragm, which is critical for breathing and speaking. "This has all the appearances of a single catastrophic injury," he said. Gray could not have suffered his severe spinal cord, then, at the fourth stop of the van in which he was injured, when Porter found him on the floor of the van and Gray allegedly asked for help, said he couldn't breathe and said he needed a medic. The injury had essentially "cut off the head from the body" in a neurological sense, Di Maio testified. He said Gray's spinal cord was 80 percent crushed.

UPDATE (2:17pm): The prosecution has rested its case, Judge Williams denied a defense request to dismiss the charges, and the court has recessed for the day. The defense will begin presenting its case to the jury tomorrow.  None of today's testimony for the State was particularly notable. The legal arguments remain clear, and the State's case about weak as their refusal to release evidence to the public had suggested. As reported by the Baltimore Sun the State's position is:
Chief Deputy State's Attorney Michael Schatzow said Porter showed a "callous indifference for life" when he deviated from department policies. Defense attorneys have said other police officers routinely break such policies, but Schatzow said those officers should not be considered "reasonable."
I've noted frequently in covering the Freddie Gray maelstrom that I'd yet to see any evidence that any of the officers had committed an actual act that could be the basis for the most serious of the charges brought agains them--including, in the case of van driver Officer Goodson, second-degree murder.  And now it seems we know why:  the State hasn't any. Also as reported by the Baltimore Sun, the defense position is:
Gary Proctor, one of Porter's defense attorneys, said prosecutors had not proved that Porter's failure to seatbelt or seek immediate medical attention for Gray rose to a "gross, wanton, deliberate" act necessary to prove involuntary manslaughter.
I look forward to the defense's presentation of its case beginning tomorrow.

Cross-examination of Medical Examiner Carol Allan, continuing from last Friday, was the highlight of this fourth day of the trial of Baltimore Police Officer William Porter over the in-custody death of Freddie Gray. The officer is charged with involuntary manslaughter, second-degree assault, misconduct in office and reckless endangerment. Prosecutors based these charges on their claim that Porter was negligent for not seat belting Gray into the police van following his arrest, a task the Baltimore Police Department did not officially require for all of it's 160 year history until a few days before Gray's injury. They also claim that Porter was negligent because of his alleged failure to seek medical care for Gray when the arrestee asked for help. The defense argues that mere police regulations are not properly the foundation for felony criminal charges, and that Porter in fact showed concern for Gray's welfare but did not perceive Gray to be seriously injured until later in the van's travels to the police station, at which time Porter did request medical assistance.

Today is day three (excluding two days of jury selection) of the trial of Baltimore Police Officer William Porter, charged with involuntary manslaughter, second-degree assault, misconduct in office and reckless endangerment following the in-custody injury and later death of community drug dealer Freddie Gray. As part of the day's proceedings the jury heard a video recorded statement given by Officer Porter to investigators only 5 days after Gray's injury. Unfortunately, given the primitive nature of Baltimore's judicial system that actual recorded statement is not accessible to the public for independent assessment.  We must therefore rely on "journalism" to inform us. The Baltimore Sun reports today that:
Baltimore Police Officer William G. Porter told investigators that he saw no reason to call a medic for Freddie Gray, but was poised to take him to a hospital for treatment. ... Porter said he knew Gray from prior interactions and that he had a reputation for being difficult to arrest. He said Gray seemed lethargic, but responded to questions and did not articulate a specific medical problem. "I said, 'What's your deal, what's wrong with you. .. He doesn't say anything, just 'help,'" Porter told the investigators. Later, he said, "He doesn't ask to go to the hospital ... I offer, he says yes."
Yesterday, according to CNN, Police Instructor Alice Carson Johnson had testified that "If you recognize someone needs medical assistance, always call 911 or EMS.  A police officer is provided with the ability through appropriate training to make a determination if someone is in a medical emergency." Upon cross-examination, however, she conceded that someone like Freddie Gray who is verbally complaining that they could not breath, and who was therefore necessarily speaking, most certainly must also be breathing.

UPDATE: In response to numerous requests, we provide additional information on the demographics of the jury selected for the trial of Officer Porter:

Three white women (all over the age of 50) Three black men (all over the age of 50) Five black women (range of ages) One white man

And thanks to commenter Ragspierre:  Additionally, three white men and one black man were chosen as alternates. As we emerge from day two of the Freddie Gray trial of Police Officer William Porter, we have yet to see a compelling narrative of guilt from the prosecution, particularly on the more serious charges brought against Porter.There is no live remote access to the court room, so the information below is largely obtained from the reporting of the Baltimore Sun newspaper:
Porter's charges stem from his decisions not to seat-belt Gray in the back of the van despite his being handcuffed with shackles on his legs, or failing to provide him medical assistance when he requested it, prosecutors have said. Porter was not the van's driver, but responded to assist other officers with Gray at multiple stops on the van's route.
Porter did not personally assist in Gray's arrest, nor was Porter responsible for the operation of the police van (that duty fell to the driver of that van Officer Goodson). Interestingly, jurors had the opportunity to actually inspect that police van today, when it was towed into the courthouse. Curiously, the Baltimore Sun reports that while the jurors were allowed to closely inspect the van, the vehicle itself was not entered into evidence. For 160 years (not a typo) the Baltimore Police Department left to the discretion of the officers on the scene whether to belt a suspect into a van (whether horse-drawn or motorized).  In fact, while seatbelt use in passenger cars is now de rigueur, there are perfectly valid and rational reasons for not belting in a prisoner in a police van.  In particular, that belting the prisoner in can lead to greater, not lesser, injuries in the event of a crash. (See my earlier post on this issue:  Freddie Gray Case: Autopsy report further undermines prosecution.) Then, a mere week prior to Gray's arrest a new policy was promulgated by the Baltimore Police Department that all prisoners in vans were to be belted in. The prosecution in this trial has argued that Porter was "trained" in this policy, but it appears that "trained" in this context merely means that Porter was sent a single group email, one of scores officers receive from the department each day, and that was in no way particular noteworthy.

[Correction: An earlier version of this post characterized the defendant, Officer Porter, as the driver of the police van in which Gray was riding. In fact, the driver of the van was Officer Goodson. Porter's role has been corrected, below.] Yesterday jury selection began in the first of the six expected trials over the in-custody death of Freddie Gray. This first case tries 26-year-old Officer William Porter, who like Gray is black. The trial is being presided over by Judge Barry G. Williams, who is also black. (I mention the races of those involved only because the case has been racially-charged from the first riots.) Unfortunately, Maryland does not allow cameras in the court room, and even reporters who are present are permitted to access electronics (and thus tweet, etc.) only on breaks, so we don't expect there will be much of the blow-by-blow coverage we've done in other high-profile trials. (Reporters in the overflow room also cannot use electronics, but are permitted to enter and exit as they please.) Nevertheless, a few general observations can be made based on yesterday's reporting.

Protestors Chants Heard Clearly in Court Room

A major issue in all these trials has been whether, due to the extensive riots and looting that erupted in Baltimore a week after Gray's death and continuing for many days thereafter, it would be in the interests of justice to change the venue of the trial to a location outside of the city. Defense attorneys for the six police officers to be tried have made repeated motions for a change of venue.

Baltimore's Democrat mayor Stephanie Rawlings-Blake has decided not to seek another term. Donna Owens of Reuters reports:
Baltimore mayor says will not seek re-election Baltimore Mayor Stephanie Rawlings-Blake, whose city was rocked by riots earlier this year over a black man's death in police custody, will not seek re-election when her term ends next year, she said on Friday. Rawlings-Blake, who became something of a flashpoint in the troubled city, was criticized by the public for her handling of the April riots that followed the death of Freddie Gray, which saw dozens of cars and buildings burned. In a hastily arranged City Hall press conference, the Democrat, who is black, said her decision was not directly related to the Gray case but acknowledged the past six months have been a "tough time" for Baltimore. "While certainly I would not have chosen (the unrest), you don't choose ... you play the cards you're dealt," said Rawlings-Blake, 45, who spent 12 years on city council before becoming mayor in 2010. "I have chosen to govern for the next 15 months rather than campaigning."

Just minutes ago Baltimore Circuit Court Judge Barry Williams denied the defense motion brought on behalf of the six police officers charged int the death of Freddie Gray to have their trials held outside the city of Baltimore, reports CBS Baltimore and other news sources. The officers' lawyers had argued that it would be impossible to select an unbiased jury in the city, because jurors would be very much aware that anything but a guilty verdict could lead to a resurgence of the riots and looting that occurred last April following Gray's serious injury while in police custody.

The evidence that police committed a crime in the handling of Freddie Gray is far from beyond a resonable doubt. In fact, as Andrew Branca has analyzed here many times, based on publicly available information there seems to be serious doubt that police did anything wrong, much less anything criminal. So what explains the Baltimore Mayor's decision to pay $6.4 million to Freddie Gray's family? The Baltimore Sun reports:
Mayor Stephanie Rawlings-Blake's decision to pay Freddie Gray's family a $6.4 million civil settlement drew praise and criticism Tuesday, with some Baltimore leaders saying the move will help heal the city and others calling it premature. Former Mayor Kurt L. Schmoke said the settlement — expected to be approved Wednesday by the city's spending panel — was a "very positive development for the city." "The mayor and her staff are trying to do all they can to heal the wounds in the community, and this is a step in the right direction," said Schmoke, president of the University of Baltimore. "This settlement will give some people in the community at least some sense of justice."
Superficially, peace through money seems to be the goal, because the dollar amount is hard to explain relative to other settlements, as the Baltimore Sun further explains:

Yesterday Judge Barry Williams made several important rulings on the Freddie Gray case, in which six Baltimore police officers have been charged with various felonies in the death of the arrested drug suspect, reports the Baltimore Sun. Key among these are that each of the officers will receive a separate trial, and that Prosecutor Marilyn Mosby will not be forced to recuse herself from the proceedings. Left unanswered until a successive hearing next week is whether the trials will be held in Baltimore, where the alleged crimes occurred, or outside the city where defense lawyers argue a less tainted jury pool is available. These rulings strike me as being consistent with reasonable due process as well as political decision-making. The six officers charged were each involved in some, but not all, of the activities around Gray's arrest and later apparent injury while being transported in the police vehicle. This is reflected in the differing charges against each of them. As a result, the evidence relevant and admissible in one officer's prosecution might well not be either in another officer's prosecution. Expecting a jury to keep all this straight in a simultaneous trial of six defendants would be unrealistic, to say the least. Indeed, I very much expect the press and the general public will find doing so all but impossible. (I anticipate we'll be seeing a lot of bad legal analysis as a result.) To refresh our recollection, here's a table listing the six defendants, the charges against them, and their defense counsel. This might well prove a handy reference moving forward:

The Baltimore Sun newspaper has obtained a copy of the autopsy of Freddie Gray, they report, at a time when Prosecutor Marilyn Mosby is still refusing to provide that report and other purported evidence to the defense lawyers of six Baltimore police officers charged in the death of Freddie Gray.  The deadline for defense counsel to receive the report is Friday. The Sun did not release the report itself, but merely reported on its "take home" finding that Freddie Gray's neck injury was caused by a "high energy" impact to his head.  As the paper reported:
The state medical examiner's office concluded that Gray's death could not be ruled an accident, and was instead a homicide, because officers failed to follow safety procedures "through acts of omission." Though Gray was loaded into the van on his belly, the medical examiner surmised that he may have gotten to his feet and was thrown into the wall during an abrupt change in direction. He was not belted in, but his wrists and ankles were shackled, putting him "at risk for an unsupported fall during acceleration or deceleration of the van." The medical examiner compared Gray's injury to those seen in shallow-water diving incidents.
(emphasis added)

A trial date of October 13 has been set for the six officers charged with a plethora of felonies following the death of Freddie Gray while in police custody this past April, reports the Baltimore Sun.  The same report notes that each of the officers has pleaded not guilty, and requested a jury trial. Baltimore City Circuit Judge Barry G. Williams has been assigned to preside over the case.  Warren Alperstein, an attorney representing the city's bar association, characterized Williams as having a reputation for favoring neither the prosecution nor the defense, stating:
He is a no-nonsense, fair and practical judge who will no doubt control that courtroom, neither state- nor defense-oriented . . . He will not be persuaded by media. He will not be influenced by public sentiment. He will rule as the law will require him to do. Period. There will be no outside influences.
That would be refreshing, considering the high-profile basking in the limelight still ongoing by Baltimore State's Attorney Marilyn Mosby, who today is given a fawning profile in Vogue magazine.  The caption to her featured image in the Vogue article (photo taken by no less than Annie Liebowitz) reads "“The unrest had nothing to do with my decision to charge,” says Mosby. “I just followed where the facts led.” These facts would, presumably, be the same facts Mosby continues relentlessly to deny the public.

Prosecutors in the case of six Baltimore police officers charged in the death of Freddie Gray continue their farcical efforts to deny evidence to the officers' defense counsel, according to a report yesterday in the Baltimore Sun. The deadline for Prosecutor Marilyn Mosby's office to meet its discovery obligations to the defense is Friday, June 26, now less than two weeks away. Granted, it is possible that some discovery is still being gathered.  Other evidence, however, is explicitly available right now, such as Gray's knife, his autopsy results, and surveillance video of the scene. There seems no rational basis for delaying the sharing of such evidence with the defense for another two weeks, except that the sharing will expose that the prosecution utterly lacks the evidence needed to support the charges it has brought against the officers. Indeed, the notion that the State simply lacks the evidence to support its charges is not an unusual one.  The Baltimore Sun just ran a poll asking people that exact question:
Do you believe the Baltimore prosecutors have the evidence to support the harshest charges against the officers who interacted with Freddie Gray?
The results as of the writing of this post? Over 88% responded "No," as shown in the featured image, above. Inspires confidence, no?  No.

Baltimore is caught in a law enforcement conundrum. People rioted over what they claimed was police brutality and as a result, cops are doing less than they used to. Can you blame them? Public backlash and fear of prosecution have caused them to switch from proactive policing to a reactive mode. This chart from the Baltimore Sun illustrates the gravity of the situation by comparing arrests from 2014 and 2015: Allahpundit of Hot Air points out some grim statistics:
There were 23 homicides and 39 nonfatal shootings in Baltimore in May 2014. Through 29 days of May 2015, there were 42 homicides and 104 nonfatal shootings. Gulp.
Gulp indeed.

Once again information emerges that Prosecutor Marilyn Mosby is an integral actor in the circumstances surrounding Freddie Gray's arrest and death, rather than an objective prosecutor simply addressing a criminal case. Roughly three weeks before Baltimore police officers arrested Gray for possession of an illegal knife Mosby herself was strongly advocating for substantially increased policing in the very neighborhood where Gray would be taken into custody, according to a report by the Baltimore Sun. Lt. Kenneth Butler, a shift commander for more than a decade, and a representative for an advocacy group for women and minority officers, is quoted in the Sun report as saying that he had never before seen such orders come from the state's attorney's office.  Further, he expressed no uncertainty about what the consequences would be: "Once you're given an order, you have to carry it out. It's just that simple."  And in terms of the tactics that would necessarily be involved?
They want increased productivity, whether it be car stops, field interviews, arrests — that's what they mean by measurables. You have to use whatever tools you have — whether it be bike officers, cameras, foot officers, whatever you have — to abate that problem. So you're going to have to be aggressive. (emphasis added)
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