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A common police transport van configuration. credit: dailymail.com

A common police transport van configuration.
credit: dailymail.com

The Freddie Gray saga continues with the leaking–by sources unknown–of the Autopsy report to the Baltimore Sun. In addition, a tentative trial date–October 13–has been set, but that’s unlikely to be met, particularly if Prosecutor Mosby continues to obstruct discovery.

Disclaimer: As you read, remember please that as this article is written, no one, including the defense, actually has a copy of the evidence upon which Marilyn Mosby is relying to obtain convictions on the six officers charged. I suspect no such evidence exists. Therefore, my analysis of events is based on what little information can be gleaned through media sources filtered through my knowledge of and experience in the criminal justice system. When and if more accurate and complete information is available, I’ll update appropriately.

The Baltimore Sun reports: 

Freddie Gray suffered a single ‘high-energy injury’ to his neck and spine — most likely caused when the police van in which he was riding suddenly decelerated, according to a copy of the autopsy report obtained by The Baltimore Sun.

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.

Those not familiar with autopsy reports may not notice the strange tone and content of the report. Autopsy reports are medical documents, and are normally confined to medical issues. The coroner or medical examiner involved do not speculate on specific charges, but merely list the specific injuries, and perhaps note that they were caused by X number of gunshots, or that the injuries were consistent with multiple impact with a heavy, blunt object, that sort of thing. This medical examiner appears to be, with a high degree of specificity, trying to help Mosby build a case. Unfortunately, he seems to have very little more information than I do, and he is opening himself up to questioning that will quickly reveal just how out of his depth he is in venturing away from his area of expertise.

Remember that in order to obtain convictions, Mosby will have to be able to prove, beyond a reasonable doubt, exactly what each of the officers did to fulfill the elements of each of the crimes with which they are charged, and the jury must be unanimous in their decision about each charge. Notice that already the medical examiner is focusing not on what the officers actually did, but on what they may or may not have failed to do “through acts of omission.” In other words, Mosby is sticking to the theory that not seatbelting Gray, rather than any affirmative action the part of the officers, is the proximate cause of his injuries, and that amounts to murder.

Here’s an interesting tidbit:

The autopsy report was completed April 30, the day before State’s Attorney Marilyn J. Mosby announced criminal charges against the officers. The autopsy has not been made public, and the deadline for releasing evidence in the case to defense lawyers is Friday. A copy of the autopsy was obtained and verified by sources who requested anonymity because of the high-profile nature of the case.

The chief medical examiner, Dr. David Fowler, declined to comment, as did the defense attorneys for the officers, who said they have not received the autopsy.

a statement, Mosby denounced the release of the report. She has sought a protective order to keep evidence in the case out of public view. ‘I strongly condemn anyone with access to trial evidence who has leaked information prior to the resolution of this case,’ Mosby said.

The autopsy was completed April 30. What possibly justification is there for keeping it from the defense all of this time? Did Mosby think it would magically transmogrify into something more favorable to her? Or were her ”investigators” struggling to find something, anything that might be helpful?

Baltimore police union president Lt. Gene Ryan said details in the autopsy raise questions about the charges, demonstrating why the union didn’t want prosecutors to ‘rush to a decision.’

‘Why not wait till all the facts are in before you make a decision?’ he asked. ‘Let’s just sit back and take a breath and let’s see everything unfold. I want to see all the evidence come out, because I believe our guys have nothing to hide.

Apparently the medical examiner also constructed a chronology of events, which is the job of the police investigators handling the case. Mosby is keeping evidence from the police and keeping them in the dark.

The medical examiner relied upon witness statements, videos and an examination of the transport van.

Gray tested positive for opiates and cannabinoid when he was admitted to Maryland Shock Trauma Center, according to the autopsy. The report makes no further reference to the drugs found in his system.

The report does not note any previous injuries to Gray’s spine.

Apparently there is no additional medical information. It will be very interesting to know the level of drugs–all surely illegal–in Gray’s system. I suspect they were high enough to account for his resistance and aggressive and violent behavior in the van. If so, Mosby would not want that known. However, little has been publicized about Gray’s background, so it may safely be assumed it would be very unfavorable to the social justice narrative. There may be little about Gray that would tend to humanize him. It is also vital that Gray’s complete medical history be known, which will surely be done by defense experts, and should have been known to Mosby before any charges were filed.

In ruling Gray’s death a homicide, the medical examiner has gone out on a short limb that will be sawed off. Accidental death cannot be ruled out, and homicide can’t be proved with the known evidence, but they make the assertion anyway:

Baltimore-Officers

In concluding his death was a homicide, Assistant Medical Examiner Carol H. Allan wrote that it was ‘not an unforeseen event that a vulnerable individual was injured during operation of the vehicle, and that without prompt medical attention, the injury would prove fatal.

Again, this kind of speculation and certainty is not something medical examiners normally do. Hundreds of thousands of arrestees have been transported, for decades, in Baltimore Police vans, virtually all without seatbelts or injury. How then could Gray’s death be somehow automatically foreseeable, particularly when the officers made multiple stops to attend to Gray and assess his condition?

As I’ve noted in past articles, the report concludes from videos that Gray had not been injured as he was being initially loaded into the van. Gray began to yell and bang and actually rock the van, according to the report, and at a second stop to check on Gray, officers put on ankle restraints and an identification band.

Reportedly, Mr. Gray was still yelling and shaking the van,’ the medical examiner wrote. ‘He was removed from the van and placed on the ground in a kneeling position, facing the van doors, while ankle cuffs were placed, and then slid onto the floor of the van, belly down and head first, reportedly still verbally and physically active.

According to the report, Officer Goodson made a third stop, got out, and looked into the back of the van. At the fourth stop, Goodson called for help and Officer Porter responded.

The assisting officer opened the doors and observed Mr. Gray lying belly down on the floor with his head facing the cabin compartment, and reportedly he was asking for help, saying he couldn’t breathe, couldn’t get up, and needed a medic,’ the autopsy says. ‘The officer assisted Mr. Gray to the bench and the van continued on its way.’

The van made a fifth stop at North and Pennsylvania avenues to pick up a second arrestee, where Mosby has said White helped check on Gray.

‘Mr. Gray was found kneeling on the floor, facing the front of the van and slumped over to his right against the bench, and reportedly appeared lethargic with minimal responses to direct questions,’ the report says.

If we assume all of this is accurate, it appears Gray was still uninjured at this point. Remember that Gray was reported to have asked the officers for an inhaler–some media sources and social justice cracktivists have taken this as evidence of cruel cops denying medical care–but the report apparently does not address that issue. Did Gray have a chronic condition requiring an inhaler? We don’t know. Unless he was carrying one, and the officers should have found that during their search of him before loading him into the vehicle in the first place, they would have had no way to meet such a request even if it were true. With no inhaler, the officers would reasonably have concluded that Gray was faking.

At this point, Gray was probably beginning to crash after a period of violent stimulation and activity, common in people using not only opiates–heroin? Prescription meds?–and pot. Cops working the drug beat–in this case at Marilyn Mosby’s request–would surely have believed Gray was drugged, and that was the source of whatever he was claiming about his condition. They would have seen just that hundreds, if not thousands, of times before: the effects of drug use and faking medical conditions.

The medical examiner concluded that Gray’s most significant injury was to the lower left part of his head. Given the descriptions of his demeanor and positioning in the van, it most likely occurred between the second and fourth stops made by the van driver, and possibly before the third stop, according to the autopsy.

Again, without the actual report, it’s difficult to make conclusions, but this paragraph seems to contradict the previous time frame, in essence suggesting that Gray suffered his mortal injuries, which would have rendered him immediately inert, much earlier than the account suggests. And here is where the medical examiner gets into real trouble with playing Sherlock Holmes rather than sticking to medicine:

While it’s possible Gray was hurt while lying on the floor and moving back and forth, Allan determined that his body likely couldn’t have moved in that position with enough force to cause his injuries.

Allan surmised that Gray could have gotten to his feet using the bench and opposite wall. With his hands and ankles restrained, and unable to see out of the van and anticipate turns, she said, he was at a high risk for an unsupported fall.

van-witness

It will be particularly interesting to read the statement–I assume one was taken; even Mosby couldn’t be that incompetent?–of the man that was in the van with Gray and to learn what he could have seen in concert with what he heard. If this witness is credible, they are likely the best and most accurate source capable of identifying when Gray was injured, and perhaps even how. Unfortunately, as the Drudge headline reveals, he is apparently under substantial pressure to give the “right” kind of testimony.

credit: dailymail.com

credit: dailymail.com

This is a general, generic representation of the back of a Baltimore police transport van. I do not know the exact configuration of the van used to transport Gray, but we can be reasonably certain it is very close, if not functionally identical. Vans configured for transport tend to be very much alike.

Though the report seems a bit confused, we can be reasonably certain that when Gray was put in ankle restraints and loaded onto the floor of the van, he was uninjured, and probably remained that way for some time. We can also be reasonably certain that if there were any evidence of bad driving, or driving purposely intended to cause harm to Gray or the other arrestee, that information would have been in this report as well. Therefore, it’s not unreasonable to believe that Officer Goodson drove in a manner normal to transporting prisoners in a van: gentle acceleration and braking, and equally gentle cornering.

Seat Belts: I’ve addressed this issue in previous updates, and Mosby continues to make this the centerpiece of her theory of the crime, and of her case, claiming that BPD procedure required the use of seatbelts, and when the officers didn’t use them, that omission was the direct cause of Gray’s death. Any competent prosecutor should know that won’t fly. Why not?

Such procedures are not absolutely mandatory in all circumstances. They can’t be. Particularly with aggressive and resisting arrestees, officers must avoid getting too close to them, in range of teeth, saliva, kicks and head butts. Even Mosby’s side admits that description fits Gray. What to do with an arrestee with a medical condition that prevents the use of a seatbelt, or one too obese for a seat belt to work? Obviously, such procedures must be a general guideline that allows officers substantial use of professional discretion.

As I previously mentioned, the seatbelt procedure had been in place only nine days prior to Gray’s death. Prior to that, huge numbers of prisoners had been transported in Baltimore police vans without seatbelts or injury. Were all of those officers potential murderers? Is a driver that does not force everyone to wear a seatbelt a potential murderer?

Handcuffs: It’s also important to remember that handcuffs are only temporary restraining devices, and cannot be relied upon to absolutely protect officers, or to make prisoners helpless and incapable of causing harm to themselves or others. Few prisoners are incapable of reaching to their front–even if they’re not particularly limber then can turn their body in the seat–and unbuckling a seat belt at will.

Seating Position: Referring back to the diagram, notice that anyone riding in the van would have been sitting sideways. Such vans have lap belts only; shoulder belts are impractical and dangerous. Anyone belted in, exposed to a violent stop–and there is no known evidence of such a stop–could easily have been torqued sideways and struck their head in such a way as to produce Gray’s injuries. In fact, considering the circumstances, placing Gray on his stomach would probably have been the safest way to transport him, something well known to experienced officers. Remember that he was still violent and reasonably intent on harming himself or the officers.

Medical Alternatives: Then why did the officers help Gray to the bench, helping him sit up when he was complaining of breathing difficulties? Positional asphyxia. Some people in restraints, particularly in a face-down posture, can experience trouble breathing, even suffocate. Some have actually died in police custody due to this phenomenon. The numbers are small, but awareness of it is a common part of police training. There is evidence to suggest that people that are drunk, drugged, or obese may be more likely to experience this, and the officers may have suspected this rather than genuine medical distress, and helping Gray to sit up, his breathing–to whatever degree he actually had a problem–may have more or less immediately resolved. That’s usually what happens. Feeling they had dealt with whatever issues Gray had, the officers went on their way.

Do I know that’s what happened? Of course not, but it does explain the officer’s actions, occurs commonly enough to be a reasonable possibility, and would certainly make the officer’s actions seem far different and much more benevolent than the social justice narrative would prefer.

The Real Deal? What’s a likely cause of Gray’s injuries? Freddie Gray. Again, this is speculation, but it fits what is known. After the final stop before they found Gray in bad shape, the van drove again. Momentarily reviving–perhaps he was so drugged Gray wasn’t consciously aware of what he was doing; that’s why knowing the levels of drugs in his system is so important–Gray managed to get to his feet, and when the van cornered or stopped, entirely normally, Gray fell, as much as six feet, with all of his weight, striking his head against the hard metal interior of the van as in a shallow water diving accident. It’s nothing more than a matter of leverage and inertia. The higher was Gray’s head above the floor or other surface his head struck, the greater the force imparted by the fall. It’s possible that if he got to his feet, Gray could simply have lost his balance and toppled over even with no motion by the van, also causing the injury. Remember that earlier reports suggested injury to Gray’s head from a protruding bolt, but this report apparently makes no mention of this.

But that’s why he should have been seatbelted! Again, remember that Gray was violent and aggressive, and because he was obviously drugged–I’m sure the officers recognized or at the least suspected this–unpredictable and dangerous. One can’t reasonably require officers to put themselves in danger merely to dot each “I” and cross each “t.” Remember too that even if belted, Gray–virtually anyone–could easily unbuckle themself. Even if seatbelted, there is nothing known that would have made impossible the scenario of the last paragraph.

Perhaps the van had locking seatbelt buckles, but this is unlikely. Locking buckles would make it difficult to release prisoners, or for them to release themselves, in case of an accident or fire. Police officers have to think of such things.

Remember too that there is apparently some evidence that Gray had substantial lead exposure when younger, which can not only cause brain damage, but may also contribute to bone fragility, making any impact more likely to cause serious injury. Again, we don’t know this with any degree of certainty, and apparently, the autopsy doesn’t address it, probably because it would not tend to support the social justice narrative. Certainly, the defense will deal with this as well.

Final Thoughts:

credit: patdollard.com

credit: patdollard.com

Notice that this article raises a great many questions and issues that are apparently unanswered, and were surely unanswered when Mosby rushed to file felony charges against six officers, charges her probable cause statements could not support even to the level of probable cause.

Mosby, for each officer and each charge, must prove beyond a reasonable doubt, each and every element, and the jury must unanimously accept that proof. If I, an old retired cop can raise these issues, perhaps even explain what happened, from afar and without access to all potential evidence, we begin to understand how dangerous rushes to judgment are. Competent investigators don’t develop a conclusion and then work up evidence to support it, they develop all possible evidence first and then figure out how it all fits. In this case, they ask, knowing every possible medical fact, and every possible fact about the van, the officer’s actions and the time frame, how Gray could have received those injuries. They work it out, perhaps even putting someone in restraints and working through various scenarios to see what is and is not possible and reasonable.

Ultimately, they have to ask–and answer–whether Gray died as a result of criminal action, or accident, or as I have suggested as a possibility, whether he was the cause–a kind of accident.

In this case, Marilyn Mosby apparently went no further than this: dead Freddie Gray. Passenger in police van. Cops must have killed him. Six cops involved; six cops charged. End of story. She would not have had time for anything else.

It will cost her, and tragically, it will cost the officers, Baltimore, and race relations in America.

The Freddie Gray case archive may be found here.

Dr. DiMaio

Dr. DiMaio

UPDATE, 062615, 1630 CST: Dr. Vincent DiMaio actually wrote the book on forensic pathology. In fact, he wrote many of the definitive texts used in that field. He is universally recognized as the expert. I watched his testimony in the George Zimmerman trial, and his reputation is well-deserved. Not only is his experience and acumen evident and impressive, he presents himself as every inch the expert he is. His involvement would be very bad news for the prosecution, as the Baltimore Sun demonstrates: 

Asked about the Maryland medical examiner’s conclusion that Freddie Gray’s death from injuries sustained in police custody was a homicide, Dr. Vincent DiMaio, one of the nation’s leading forensic pathologists, said: ‘I’d have to respectfully disagree, and I know a number of other medical examiners do. It would be more appropriate to have classified this case as either an accident or ‘undetermined,’ because the way it’s being called a homicide is, in a way, something that a jury has to decide. A medical examiner is not a lawyer, is not a jury. … They’re saying [Gray’s death] was not an unforeseen event. That’s something for a jury to decide, not the doctor to decide.

I seem to remember having made similar points…

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