The State may finish up its case against William Porter today, and soon thereafter we might be faced with the very real possibilities of partial or total acquittals in the case. This is a quick-and-dirty overview of the elements of the offenses for you to compare and contrast with the evidence that’s been presented at trial.

I say all of this in full support of those (including myself) who have been on the streets in Baltimore fighting for more police accountability and less police brutality. That fight is a good, noble, and needed one.

From a technical, legal point of view, this case (along with those against many of the other officers) has been on tenuous ground, at best, since its inception. In lieu of a law-review length article, let me summarize the issues as such: the law controlling the case is (1) amorphous and (2) difficult to prove.

The most serious offenses facing Officer Porter are “common law” offenses—that means that a precise description of the offenses don’t exist in any criminal code book in Maryland. The elements and interpretation of the crimes charged is left entirely to the judiciary.

Involuntary Manslaughter: Grossly Negligent Omission to Perform a Legal Duty

Assuming that the state is proceeding under this theory of negligence, it has to prove the following:

That William Porter failed to perform a duty for which he had a legal obligation; William Porter’s failure to act caused the death of Freddie Gray; By failing to perform a legal obligation, William Porter acted in a grossly negligent manner at the time of the killing, that is, William Porter’s failure to act created a high degree of risk to the life of Freddie Gray; and William Porter was aware that his failure to act created a high degree of risk to human life, that is, William Porter was conscious of the life-endangering risk involved.

The rest of the model instruction for this offense (and the controlling legal standard) reads as follows:

To establish the crime of involuntary manslaughter, you must find that the defendant’s failure to act, for which he had a legal obligation, was grossly negligent. The standard for gross negligence is higher than that for ordinary negligence. The standard is both subjective and objective. First, the defendant must have known or been aware that his failure to act created a high degree of risk to the life of Freddie Gray, and consciously disregarded that risk. Second, the risk involved must have been objectively substantial, amounting to a gross deviation from the standard of a reasonable, law-abiding person under similar circumstances. If the defendant’s failure to act that resulted in death was due merely to simple negligence or carelessness, an honest error of judgment or an accident, then you must conclude that the defendant was not grossly negligent and you must find him not guilty of involuntary manslaughter. Criminal liability cannot be based on mere carelessness or an accident, even if it results in injury or death to another.

Think of the state’s case so far. In all honesty, have they met this burden? Does the failure to follow a police order to buckle in offenders, without more, rise to the level of gross negligence described above? Is there reasonable doubt about the timing of the injury? Is there reasonable doubt about whether the ultimate responsibility to ensure Gray was buckled fell on Porter (as opposed to Goodson, the driver)? Is there reasonable doubt about (or really, any evidence at all) as to whether Porter knew that Goodson would be taking Gray on a ‘rough ride’?

Second Degree Assault

Again, this is a common law crime. Its elements are as follows:

William Porter caused physical harm to Freddie Gray; The physical harm to Freddie Gray was the result of an intentional or reckless act of William Porter and not merely accidental, mistaken, or careless; William Porter’s actions were not consented to by Freddie Gray; and William Porter’s actions were not legally justified.

The instructions go on to say:

The standard for recklessness is higher than that for ordinary negligence. First, the defendant must have known that his conduct created an unnecessary risk that might cause the harmful contact and disregarded that risk. Second, the risk involved must be objectively substantial, amounting to a gross deviation from the standard of a reasonable, law-abiding person under similar circumstances.

Reckless Endangerment

The elements of this offense are as follows:

William Porter’s conduct created a substantial risk of death or serious physical injury to another person; William Porter engaged in the conduct while being conscious or aware of the risk involved; and The level of risk involved was objectively substantial, that is, William Porter’s conduct amounted to a gross departure from the standard of conduct that a reasonable, law-abiding person would observe in William Porter’s position under similar circumstances.

As you review the evidence of the case, has the State made out a prima facie case to get the matter to the jury?

Given how Judge Williams has handled the case so far, I’d be surprised if he tossed any charges at a motion to strike (motion to dismiss the case at the close of the state’s evidence).

Assuming the case does get to the jury, what elevates this particular case from ‘simple’ negligence to ‘gross’ negligence? Does the failure to buckle in a prisoner create a ‘high’ (manslaughter) or ‘substantial’ (assault) risk of death or serious physical injury?

This is a tough case to make. I’ll save my opinions on how it should have been handled for another day.

In the meantime—Baltimore, this is precisely the moment where you may begin to realize that your State’s Attorney has failed you, by creating hope for a conviction that might never come—because the evidence was never there to begin with.

If acquittals do come, it is neither the fault of the jury nor the judge--not in this case. If acquittals do come, it is because of prosecutorial overreach—no more, and no less.

And if convictions come—we are at the beginning of years and years of appeals. And no other officer whose prosecution is dependent on Officer Porter’s statement being entered will be able to be tried until those appeals are done. Again, that hope for rapid-fire prosecution of 6 officers was a promise that Marilyn Mosby was never going to be able to keep.

No matter what comes, we must continue to fight like hell for better police treatment for everyone in Baltimore. And if folks are in the streets, I will be there with them, fighting like hell for their voices to be heard without being subject to police brutality.