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.”

It is, indeed, possible for a failure to act to provide the basis for involuntary manslaughter, but only where: (1)(a) there existed and (b) the defendant was aware (or should have been aware) that there existed a legal duty to act, (2) the defendant was aware the circumstances raised the legal duty, and (3) the defendant knew or should have known that the failure to meet their legal duty presented a substantial and unjustifiable risk to the victim’s life.

Note that all of these elements are necessary to reach a verdict of guilty on a charge of involuntary manslaughter.

In Porter’s case the prosecution is arguing that he violated two legal duties: (1) Porter failed to buckle Gray into the van, and (2) Porter ‘s alleged delay in providing medical care to Gray.

Let’s take each of those in turn.

A. Failure to Buckle Gray Into the Van

Let’s first look at Porter’s failure to buckle Gray into the police van and see if it meets the three criteria necessary for involuntary manslaughter. The questions that must be answered, and incidentally proven to the satisfaction of a unanimous jury beyond a reasonable doubt, become:

(1)(a) Did there exist a legal duty to buckle Gray into the van?

The prosecution is arguing that the Baltimore Police Department’s new rule that arrestees must be buckled into police vans, enacted days before Gray’s arrest, created imposed legal duty upon Porter, and that the failure to meet that legal duty constitutes a crime.

But did the new seatbelt rule impose a legal duty upon Porter?

One of today’s expert witnesses for the defense was Police Chief Timothy Longo, of Charlottesville VA, who among other things was a member of the Baltimore Police Department for 18 years, including command positions, and also an independent monitor for the Department of Justice consent judgment for the Cincinnati police department.

Chief Longo testified that the new seatbelt rule, indeed any simple departmental policy, could not create such a legal duty, if only for the simple practical reason that police officers are required to use their considerable discretion in the application of any departmental rule to the real-world circumstances they encounter. Longo noted that officers must use their discretion all the time, and routinely “run afoul” of official directives doing so. The only requirement is that are able to articulate a reasonable basis for doing so. Longo went on to testify that in his expert opinion Porter’s conduct in not belting Gray was, in fact, “objectively reasonable.”

We can recall from Porter’s own testimony yesterday that he was indeed able to articulate a reasonable rationale for not entering the van the buckle in Gray, including the very tight quarters that would require him to place his sidearm within Gray’s reach.

Longo also noted that even if there existed such a legal duty, that duty fell upon other officers. I expect he’s referencing the driver of the van in particular, Officer Goodson, as well as some of the more senior officers on the scene.

In addition, Longo testified that orders such as the seatbelt directive were grounds only for internal administrative discipline, not criminal liability. He reportedly stated numerous times that broken general orders should be dealt with administratively, not criminally (resulting in an objection from the prosecution).

Conclusion: It seems extremely unlikely that a reasonable jury could unanimously conclude that the prosecution has proven, beyond a reasonable doubt, that there existed a legal duty for Porter to buckle Gray into the van.

(1)(b) Was Porter aware (or should have been aware) that a legal duty existed to buckle Gray into the van?

Even if we were to concede that there existed a legal duty to buckle Gray into the police van (and I do not so concede), was Porter aware that such a legal duty existed?

The State claims that the new seatbelt directive was emailed to all officers, and thus that Porter was aware, or should have been aware, of the directive and thus the existence of the legal duty. Porter denies he ever saw such an email, or received any other notice of the seatbelt directive.

Porter himself testified that the Baltimore Police Department was a department in disarray, citing concrete examples such as the inappropriately low number of police officers and supervisors on hand at the time of Gray’s arrest.

The Department’s own head of IT described their computer systems as slow and poorly functioning. Even assuming that an email was sent, there is no evidence that it was received or seen by Porter.

One also can’t help considering the matter in the context of the department’s catastrophically failed response to the rioting following Gray’s death. There seem to be a great many people who feel the department did too much and others who feel they did too little, but nobody who seems willing to credibly characterize the Baltimore Police Department as a finely tuned law enforcement agency. The recent firing of the department’s head similarly attests to a troubled organization.

It is also notable that yesterday the prosecution displayed to Porter a directive, signed by the Porter, regarding the provision of medical care to arrestees, but that the prosecution is apparently unable to find any similarly concrete evidence that Porter was actually informed of the seatbelt directive.

Clearly the department has a procedure for documenting such notifications of departmental directives, why are they not able to provide such documentation with respect to the seatbelt directive?

Conclusion: It seems extremely unlikely that a reasonable jury could unanimously conclude that the prosecution has proven beyond a reasonable doubt that Porter was aware, or should have been aware, of the new seatbelt directive.

(2) Was Porter aware that the circumstances raised the legal duty?

I’ll skip this one in the context of the seatbelt directive, but will address it in the context of the alleged failure to provide medical care.

(3) Did Porter know, or should he have known, that the failure to meet that legal duty presented a substantial and unjustifiable risk to the victim’s life?

It is also notable that the Baltimore police department made do without seatbelt rule for the entirety of its 160 year existence until just a few days before Gray’s arrest. Is it credible now for the State to argue that the Baltimore Police Department was creating a substantial and unjustifiable risk to human life for that entire period?

Surely if that were the case arrestees would have been suffering life-threatening injuries at a sufficient rate that the seatbelt directive would have been put in place decades, not mere days, before Gray’s arrest.

On this point it is also worth noting yesterday’s testimony of both Porter himself as well as that of Baltimore Police Officer Zachary Novak. Porter had testified that he had personally been involved in some 150 arrests involving the use of a police van and had never seen an arrestee buckled in.

Officer Novak, interestingly, had been granted immunity by the State in exchange for his testimony, yet was actually called as a witness by the defense. The reason for this oddity may be the nature of Novak’s testimony: Novak agreed with Porter that few arrestees placed in police vans are belted into place.

This issue is, of course, one of the two keys the charges against Porter.

This afternoon the defense also presented the testimony of another Baltimore Police Officer, Mark Gladhill. Gladhill was among the officers at some points during Gray’s arrest and transport, but was not charged in the case. He was called to testify by the State before the Grand Jury. Like Novak, Gladhill had been granted immunity by the State, and had testified before the Grand Jury.

In his testimony in court today Officer Gladhill stated he has been involved in perhaps 75 arrests, most of which involved a police wagon. He went on to testify that prior to April 12, 2015, the date of Gray’s arrest, he had never seen an arrestee seat belted into a transport van.

“Never.”

If it is true that the actual practice of the Baltimore police department as an organization, and perhaps regardless of some new rule, was to not buckle arrestees into police vans, in order to believe the State’s “seat belt omission” theory of the case it is necessary to believe that the virtually the entire Baltimore Police Department was engaged in creating a substantial and unjustifiable risk to human life, every single day.

Conclusion: It seems impossible that a reasonable jury could unanimously conclude that the prosecution has proven beyond a reasonable doubt that Porter knew, or should have known, that the failure to buckle Gray in created a substantial and unjustifiable risk to Gray’s life.

B. Alleged Delay in Providing Gray With Medical Care

Now let’s look at Porter’s alleged delay in providing Gray with care. The questions that must be answered, and incidentally proven to the satisfaction of a unanimous jury beyond a reasonable doubt, become:

(1)(a) Did there exist a legal duty to provide Gray with medical care?

The answer to this question in general is surely affirmative, at least at the point at which it is evident that an arrestee is in need of medical care. The arrestee, being in custody, cannot seek their own care, and thus the duty necessarily falls to the officers who have him in custody.

(1)(b) Was Porter aware (or should have been aware) that a legal duty existed to provide Gray with medical care?

As noted above, the State is in possession of a directive, signed by Porter, on the duty to provide medical care to arrestees. In any case, Porter has never denied the legal duty to provide medical care to arrestees, when necessary to do so.

(2) Was Porter aware that the circumstances raised the legal duty?

And here’s the rub. Was Porter aware, or should he have been aware, that the circumstances raised the legal duty to provide Gray with medical care?

The key issue here becomes at what point in the interaction did Porter become aware that Gray had suffered an injury that clearly warranted medical intervention.

Given the nature of the facts of the case, the easiest way to describe the timing of relevant events is in terms of the sequential stops the van made between Gray being first loaded aboard (1st stop) and the van arriving at its final destination (6th stop, at which point Gray was provided with care).

The State claims that Gray suffered his sole injury, an 80% cleavage of the spinal cord, after the 2nd but prior to the 4th stop of the van. Per the autopsy report the State claims the injury occurred:

[A]fter the 2nd but before the 4th stop of the van, and possibly before the 3rd stop. … At this 4th stop, Mr. Gray was displaying symptoms of a high spinal cord injury; difficulties in breathing and movement.

Thus, they claim that Porter did observe, or should have observed, Gray suffering the consequences of his spinal injury at the 4th and 5th stops, yet Porter failed to provide medical care until the 6th and final stop.

The official autopsy report indicates that at the 2nd stop Gray was removed from the van and had his ankles shackled because he was yelling and shaking the van. He was then slid onto the floor of the van, rather than buckled into a seat. At that point Gray was still verbally and physically active.

At the 3rd stop stop Officer Goodson opened the rear of the van to observe Gray. There is no indication in the autopsy report of Porter observing Gray at that time.

Then van continued, then made a 4th stop when the van driver called for assistance to check on Gray. Gray complained that he could not breath, which of course is itself evidence that he could indeed breath. Porter himself testified that Gray asked for medical care, but was unable state a specific medical need, and that it did not appear to Porter that Gray was in great need of such care. It was at this point that Porter assisted Gray in raising himself to get into the van’s seat.

In any case, Porter testified, it was the practice of the police and medic community that medic would not normally transport an arrestee who was already aboard police transport. Instead, the practice was that the police themselves would transport the arrestee to the medic. Which is what the van continued to do in this case.

At the 5th stop Gray appeared lethargic, but was still at least minimally responsive to direct questions. In testimony today Officer Mark Gladhill stated that at the 5th stop he observed Gray from a distance of 10 feet kneeling, bearing his own weight, and holding his head up.

Interestingly, he also testified that he had recounted this observation to both the Grand Jury and the Force Investigation Team (FIT team) of the Baltimore Police Department, meaning that this testimony was known to prosecutors months before this trial began.

(It is notable that the FIT team had been put in place by now discarded Police Commissioner Anthony Batts specifically for the purpose of investigating police use-of-force cases. It has been widely reported that Prosecutor Mosby ran her own, clandestine “parallel” investigation into the Freddie Gray arrest, and it was on her “parallel investigation’s” findings that she charged six Baltimore police officers with criminal responsibility for Gray’s death. It has also been widely reported that the FIT team had come to markedly different conclusions that would not have supported criminal charges. Immediately following Commissioner Batts’ dismissal the FIT team was thoroughly crushed, every one of its members discarded, and a newly organized and named group established to assume the FIT teams’ mission. “Sow the soil with salt,” indeed.)

It was also at this stop that Donte Allan, another arrestee, was placed in the adjoining compartment of the police van. Allan would go on to report that he could hear Gray throwing himself around the inside of the van. The autopsy report notes “By report, [Allan] said that he heard Mr. Gray banging and kicking through the metal divider [separating the two compartments].”

(It is worth nothing that Gray apparently had a reputation for deliberately injuring himself when arrested in an effort to allege a legal claim against the police department.)

Allan would later rescind his initial statement, but it is noteworthy that there appears little reason for Allan to have fabricated the initial statement and a lot of incentive to falsely rescind one it was clear the initial statement was to advantageous to of the Baltimore Police Department. I mean here specifically the “snitches get stitches” culture of urban Baltimore, as testified to at this trial.

It was at the next stop, the 6th, that Gray was found unresponsive and not breathing, and medical care was immediately provided.

The question, then, is between which stops did Gray’s ultimately mortal injury occur? If it occurred only after the 5th stop, then in fact Porter and the other officers provided Gray with medical care as soon as they were aware he had suffered the injury.

If, however, the injury occurred at some point prior to the 5th stop then perhaps the police might have observed the injured Gray and improperly delayed providing him with medical care, this being of course the prosecution’s case.

The State’s medical examiner, Dr. Carol Allan, testified for the state that in her expert opinion the injury did, in fact, occur at one of the earlier stops.

(It is noteworthy that it has been widely reported that Dr. Allan was pressured by Prosecutor Mosby’s office to change her finding of cause of death from “accident” to “homicide” only hours before the report’s public release.)

Of course, for Dr. Allan’s opinion to be correct it must be the case that it was possible for Gray to suffer his catastrophic neck injury, an 80% cleavage of the spine, and still engage in the physical acts observed in later stops, such as verbalizing that he could not breathe, requesting medical care and cooperating with Porter to be lifted into the van seat at the 4th stop, as well as kneeling and supporting his body weight and head at the 5th stop.

Dr. Allan’s opinion that the spinal injury occurred between the 2nd and 4th stops is, of course, necessarily speculation on her part, as there was no witness in the compartment with Gray, and no working cameras inside the van (another indication, incidentally, that the Baltimore Police Department is not a finely tuned law enforcement agency). As speculation, this certainly seems insufficient to constitute proof beyond a reasonable doubt, even if the defense presented no credible contrary evidence.

Sadly for the prosecution, the defense has presented extremely credible evidence to the contrary.

Yesterday saw the testimony of Dr. Vincent Di Maio, a world-renowned forensic pathologist who testifies in a great many high-profile trials (including the trials of George Zimmerman and Phil Spector).

Dr. Di Maio utterly discounted the State’s claim that Gray could possibly have been injured at any time prior to the second to last stop, and instead testified that Gray must necessarily have been injured after the 5th stop. As reported by 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. “You had a head and a body and they were disconnected,” he said. “You aren’t feeling anything. You aren’t able to move. He was paralyzed. He was quadriplegic.” Di Maio said he believed Gray was injured between the fifth and sixth stops, and that his death was not a homicide as state medical examiner Dr. Carol Allan found, but an accident. “It’s just an accident,” he said, “and accidents happen.”

Today we heard from another defense expert witness, neurosurgeon Dr. Matthew Ammerman, who concurred with Dr. Di Maio’s assessment.

Dr. Ammerman testified that in his expert opinion Gray’s grievous spinal injury would have immediately paralyzed him and made it impossible for him to breathe. In his expert opinion Gray’s injuries:

“immediately rendered him paralyzed, stopped him from breathing, and unfortunately ended his life.”

Dr. Ammerman noted that if the injury had occurred earlier it would not have physically possible for Gray to use his legs to assist Porter at the 4th stop in lifting Gray into the van’s seat. He also testified that in his expert opinion no faster care for Gray would have saved his life:

“I don’t think it was a survivable injury.”

Conclusion: Given that the State’s evidence on this issue consists solely of Medical Examiner Allan’s speculative notions about what might have happened, and when, inside the van, and the defense evidence consisting of the testimony of two world-class experts who were absolute in their opinion that none of Gray’s observed physical activity during the 3rd, 4th, or 5th stops could possibly have occurred subsequent to the 80% cleavage of Gray’s spine, it seems impossible that a reasonable jury could unanimously conclude that the prosecution had proven beyond a reasonable doubt that Gray’s injury occurred prior to the 5th stop such that Porter could have called for medical care at an earlier time than the 6th stop.

(3) Did Porter know, or should he have known, that the failure to meet that legal duty presented a substantial and unjustifiable risk to the victim’s life?

This point becomes moot, given the reasonable impossibility of proving the prior point beyond a reasonable doubt.

In short, on neither of the prosecution’s claims of involuntary manslaughter by failure to buckle and delay in providing medical care do I foresee a reasonable jury unanimously coming to a verdict of guilty. Much the same applies to the lesser charges.

Of course, one can never really count on a reasonable jury.

That’s it for tonight folks. We’ll have more William Porter trial coverage tomorrow, and naturally there are many more trials to come after this one.

–-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.

“Law of Self Defense, 2nd Ed.” /Seminars / Instructors Course / Seminar Slides / Twitter /Facebook / Youtube



