Prosecution has another terrible, horrible, no good, very bad day; conviction on any charge seems unlikely

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.

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.

Prosecution and defense theories of the case

The prosecution’s theory of the case is that Porter committed two acts of omission of a legal duty—failing to seatbelt Gray into the police van and failure to provide timely medical care—either or both of which created a substantial and unjustified risk of death to Gray.

The defense theory of the case with respect to the seatbelt issue is that the department’s seatbelt rule, enacted only days before Gray’s in-custody injury, was in effect a guidance subject to reasonable discretion, and that Porter was able to articulate a reasonable basis for not belting Gray in. Further, if any of the six officers on scene had responsibility for belting Gray in the van it was the driver, Officer Goodson.

The defense theory of the case with respect to the provision of medical care is that Porter provided timely medical care as soon as possible after Gray was injured and the time anyone could have been aware of that injury, which the defense claims occurred only after the last of the van’s penultimate stop (the 5th stop) prior to reaching its destination (the final 6th stop). Care could not have been provided at earlier stops for Gray’s neck injury, they claim, because the injury had not yet occurred.

Testimony and evidence to date

With respect to the seat belt issue, the defense has brought to the stand numerous police officers both from Baltimore and elsewhere who have command experience in the application of directives such as the newly adopted seatbelt rule and/or personal experience how the Baltimore Police Department’s directives are applied in practice. Their testimony has overwhelmingly supported the defense position that such directives are, and must be, subject to the reasonable discretion of the officers on the scene. In addition, the State failed to document that Officer Porter was aware of, or should have been aware of, the new seatbelt rule.

With respect to the alleged delay in medical care the defense introduced the testimony of two renowned medical experts, a forensic pathologist and a neuroscientist, who were adamant that the nature of the injury meant that Gray would have been immediately paralyzed from the injury site down. Both prosecution and defense witnesses testified that Gray retained voluntary control of his body through every van stop prior to the vehicle arriving at its destination. Thus Gray’s injury could not have occurred prior to the penultimate stop of the van, and the need for medical care could not have been known until the van reached its destination.

Today’s continuation of the defense case only served to further the prosecution’s difficulties.

Character witnesses: Porter “like a grandson,” “upstanding gentleman”

The defense first brought to the stand a series of three character witnesses, none of whom were fellow police officers. They each described Porter as a caring and honest person.

One of these was an older woman who was a Department of Corrections employee who said she considered Porter “like a grandson” and thought him “an outstanding member of the community.” A second self-described Porter as one of his best friends, and described him as an “upstanding gentleman” and a “peaceful person.” The third, a first-grade teacher, testified that Porter was “very truthful and honest” and “very peaceful,” and a kind of person that was “very hard to come by.”

Baltimore PD Captain Reynolds: Porter did MORE than was required of him

Next up was Captain Justin Reynolds of the Baltimore Police Department, as an expert on police policies. Captain Reynolds has held numerous leadership positions in the department and has experience crafting general orders of the same type as the newly adopted seatbelt directive.

Reynolds testified that general orders are frequently violated as part of normal police practice, with the sole expectation that officers will use common sense and good judgment in doing so. Officers, he explained, sometimes have to break with general orders to do their jobs.

“You have to use common sense. It prevails over everything else.”

In this case belting Gray into the van would have involved Porter climbing into the van himself, which presented unnecessary risks to the officer.

In describing his own experience in loading arrestees into police vans Reynolds testified that:

“I’ve been bit, I’ve been spit on, I’ve been kicked. It only happens once before you don’t want to put yourself in danger again.”

Indeed, Reynolds testified that not only did Porter’s conduct not fall short of that of a reasonable officer, Porter actually went above and beyond what police department policies require, given his rank and his role in Gray’s arrest.

Lifting Gray off the floor of the van to the seat was “beyond what many other officers would have done.” Further, at the penultimate stop Porter had advised his supervisory Sergeant Alicia White of Gray’s request for medical care, after which any responsibility for the matter was transferred to her:

“An officer expects that when they tell a supervisor something, the supervisor is going to act upon that.”

Reynolds also spoke to the issue that Gray might have been exaggerating his claimed need for medical injury earlier in the van ride. He testified that when he recently worked at Central Booking about 20% to 30% of arrestees complained of illness and injury, but only 1.5% were found in actual need of medical care.

Reynolds also testified that he has sat on departmental trial boards tasked with evaluating violations of general orders by patrol officers, and that such violations were punished administratively, if necessary, not criminally.

On cross-examination Prosecutor Schatzow directed Reynolds to language in the department’s general orders stating that officers should “adhere resolutely to their requirements” and “adhere to them as rigidly as possible.” It is notable that neither of these statements is absolute and both arguably allow for an officer’s reasonable discretion.

On re-direct the defense had Reynolds reiterate his expert opinion that Porter had acted as a reasonable officer.

On re-cross Prosecutor Schatzow in effect tried to “create evidence” by referencing “testimony” of his own making. With respect to Porter having notified Sergeant White of Gray’s request for medical care, Schatzow asked if Porter might not instead have referred to Gray as a “malingerer” and suggested there was “no rush” to get Gray medical care. The defense objected, and the question was appropriately struck.

Prosecutor Schatzow then attempted to have Reynolds testify as to a variety of alternative, purportedly more reasonable, courses of action that Porter might have taken. The defense objected each time, and each objection was sustained by trial Judge Williams.

The line of questioning was properly objected to because the relevant question in the trial is not whether Porter’s conduct was the most reasonable course of conduct, but merely whether it was a reasonable course of conduct. The fact that additional, perhaps superior, reasonable options were available does not mean that Porter’s choice was therefore unreasonable.

Officer Porter’s mother, Helena Porter

The final witness for the defense was Porter’s mother, Helena Porter. She testified only briefly, stating that Porter “gets along well with the community and all the neighbors” and “is the peacemaker in whatever situation goes down.”

Following Mrs. Porter’s testimony the defense rested.

Not called to testify: van co-occupant Donta Allen

Notably not called to testify by either the prosecution or the defense was Donta Allen, the second arrestee who had been placed in a separate compartment in the prison van at the van’s penultimate stop.

Allen had reported soon after the event that he had heard Gray throw himself around the inside of the van. Such violent movement could have been the direct cause of Gray’s injury, and thus was unfavorable to the prosecution’s narrative and favorable to the defense narrative. Some time later Allen recanted his earlier statement, potentially because he feared appearing as if he had cooperated with the police (“snitches get stitches”).

Allen’s contradictory accounts, along with the fact that Allen is currently in custody in Pennsylvania awaiting trial for theft and forgery likely led each side to conclude that the risks of having him testify outweighed the benefits.

Conviction seems unlikely, but juries are unpredictable

It seems impossible given the testimony and evidence as reported that a reasonable jury could unanimously conclude, beyond a reasonable doubt, that Officer William Porter was guilty of involuntary manslaughter, as charged, or second-degree assault, misconduct in officer, or reckless endangerment.

Indeed, the evidence would seem to prove, beyond a reasonable doubt, that Officer Porter literally did not only do nothing wrong but did more than his job required of him.

Juries are always a crapshoot, however, especially when one choice of verdict potentially carries a real and demonstrable risk of weeks of rioting, arson, and looting.

OK, folks, that’s it on this case for the week. See you all again on Monday.

–-Andrew, @LawSelfDefense

Attorney Andrew Branca and his firm Law of Self Defense have been providing internationally-recognized expertise in American self-defense law for almost 20 years in the form of blogging, books, live seminars & online training (both accredited for CLE), public speaking engagements, and individualized legal consultation.

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