Baltimore-OfficersA recent Baltimore Sun article has provided perhaps the most complete narrative to date of what may have happened in the Freddie Gray case. Despite the Sun’s attempts to put a prosecutorial smiley face on things, this account, if accurate, will not be good news for the prosecution. It is, in this case, always worth remembering that what we are seeing is nothing less than a cultural battle between the rule of law and social justice. Under the rule of law, no charges would have been filed. Under social justice, it’s surprising only six officers were charged.

The Sun has apparently gotten ahold of “police” reports, but it is not clear whether these are internal documents—which generally cannot be used in court—or part of a criminal investigation. Interestingly, this is also an issue, with at least some of the officers suggesting that they were misled, and statements taken in what they thought were an internal investigation where they were being questioned as witnesses, might be improperly used in the criminal case where they are suspects. From The Sun:   

Officer William Porter told police investigators that after being summoned to check on Gray on the morning of April 12, he told the van’s driver that the city booking facility would not process Gray because he was in medical distress.

‘Help me. Help me up,’ Gray said.

Porter helped Gray up and asked, ‘Do you need a medic or something? Do you need to go to the hospital?’

When Gray responded affirmatively, Porter said he told the van’s driver, Officer Caesar Goodson, Jr., that Central Booking wouldn’t accept Gray. Porter also told investigators he wasn’t sure if Gray was in distress, or trying to convince officers to take him to the hospital instead of jail.

The Sun suggests that these statements “shed new light” on the case, but in reality, they reveal nothing but the most common and mundane police procedure. Porter was apparently summoned by Goodson, which does not indicate an officer trying to harm Gray, but one concerned for his welfare. The picture being painted by this newest article is not one of a conspiracy between six officers to harm Gray, but of police officers who reasonably believed Gray was faking medical problems—like so many people arrested do—but were taking reasonable measures just in case he wasn’t faking. This is what competent police officers do every day.

The Baltimore Sun was granted exclusive access to the Police Department’s investigation, in which detectives outlined the officers’ statements and scrutinized Gray’s arrest and transport — days before any charges were filed in the case or any court proceedings began.

Police did not show or provide The Sun with the actual statements given by the officers. Some of the officers’ statements conflict, and the police summary might not reflect the full account of each officer.

It would appear that these statements were taken by Baltimore Police as part of an internal investigation. The hasty and almost certainly incomplete investigation upon which Prosecutor Marilyn Mosby relied was done by the local Sheriff’s Office, Mosby’s office, and at least one discredited former police officer.

“Some of the officers’ statements conflict.”  Brilliant deduction Sherlock. All witness statements in every case conflict in some ways, even those of police officers. That The Sun is not trumpeting any significant contradictions in statements indicates that any contradictions are of the nature one normally finds: differences of perspective, not indicators of deception.

Prosecutors have asked that Porter go on trial first because they say he will be called as a witness to testify against two other officers. In a letter to Judge Barry Williams, Chief Deputy State’s Attorney Michael Schatzow said Porter is ‘a necessary and material witness in the cases against’ Goodson and Sgt. Alicia White.

As we’ll see later in this article, Porter’s testimony may amount to nothing more than a police officer’s reasonable use of caution. There is no known deal between Porter and the prosecution. There may be more than we know at the moment, but what is known, and revealed in The Sun’s article, is not at all damning, quite the opposite.

Attorneys for the officers who provided statements have argued in motions — unsuccessful to date — that the statements should be suppressed because they were not properly advised of their rights against self-incrimination or their rights under the Law Enforcement Officers’ Bill of Rights. Some officers have argued that they made their statements under duress because they feared losing their jobs, or were led to believe they were providing statements as witnesses rather than suspects.

The sequence of events in The Sun’s article is somewhat more definitive than any previously known, including that included in the incomplete and non-specific probable cause statements:

The officers’ statements recounted the basic timeline of events, which began with Gray being arrested at the Gilmor Homes public housing complex and loaded into the van. In the days following Gray’s death, a 30-member task force used those statements and other evidence to recreate the van’s journey of approximately 45 minutes through West Baltimore, scrutinizing details of Gray’s arrest and transport.

The prosecution will surely claim that because the van carrying Gray took 45 minutes to get to central booking, the officers were clearly trying to harm him. In reality, it’s common for transport vans in larger cities not to drive a single prisoner directly to jail. They often pick up other prisoners, which is a normal procedure that allows the officers making arrests to return to their duties as quickly as possible. A 45 minute ride would not be unusual or indicative of wrongdoing.

Task force members said that after Gray was placed in the van it was driven away to avoid a crowd that was forming, drawn by Gray’s vocal protests. The van stopped at Mount and Baker streets, about a block south of the arrest site.

Several arresting officers followed, and according to some of their statements, they could see Gray rocking the van, beating on the doors and yelling. The officers told Gray to move away from the doors, and when he didn’t, they opened them. Rice and another officer grabbed Gray and pulled him to the ground, face down. Gray kicked and squirmed as officers put flex cuffs and leg irons on him.

Officers put him back into the wagon, where he was left cuffed and shackled, face down on the floor. The van drove away.

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

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

All of this describes normal, prudent police procedure. Gray was obviously playing to the crowd—a common criminal tactic—and the officers needed to promptly leave that area. Remember that the very corner where Gray was arrested was a known drug trafficking area, in a district known for drug trafficking and related crimes. Remember too that the officers were there specifically because Marilyn Mosby directed the police to provide enhanced patrol in that area, which is, coincidently, her city councilman husband’s district.

credit: hellobeautiful.com

credit: hellobeautiful.com

It takes little imagination to foretell the prosecution’s take on this, but this sounds very much like Gray was still trying to play to a crowd he probably thought was still around, perhaps hoping they’d rush the officers and free him. Gray’s prior attempts at “crash for cash” scamming of the police also inform what he was likely doing. Gray was obviously being uncooperative and the officers couldn’t allow him to rock the van while it was moving, or to potentially harm himself. Let’s not forget that Gray was also self-drugged; there were narcotics and THC–pot–in his system.  Taking an obviously violent and uncooperative Gray to the ground and more securely restraining him was exactly what the officers should have done. Officers may use whatever force is necessary to make an arrest, and to transport a arrestee to jail. Likewise, putting Gray prone on the floor of the van was calculated to make it more difficult for him to rock the vehicle or to injure himself. All of this is what reasonable, professional officers should have done.

Soon after that stop, Goodson asked dispatch to send an officer to check on Gray. Porter met the van near the intersection of Druid Hill Avenue and Dolphin Street, peeked inside and saw Gray face down. Police say that according to Porter, that led to his exchange with Gray and his comment to Goodson about Central Booking.

Though Gray indicated he wanted medical help, Porter told investigators in his statement that he wasn’t sure the detainee was in distress. ‘Everybody plays the ‘I need to go to hospital’ thing when they get arrested,’ Porter said in his statement.

Soon, Gray seemed better, Porter told investigators. ‘He was calm,’ the officer said.

Again, Goodson is obviously concerned about Gray’s welfare, not trying to harm him. Porter too carefully assessed Gray, but had his doubts about Gray’s supposed medical condition. Notice that The Sun’s account is not at all specific about what Gray’s “condition” was at any point until he was discovered to be apparently unresponsive.

Moments later a call came across the police radio for ‘10-16’ — an officer in distress.

Goodson climbed back into the van and drove to a location near the intersection of West North Avenue and Pennsylvania Avenue, more than a mile away.

A call of this kind requires all available officers to immediately respond.

There, Goodson picked up another detainee, Donta Allen, whom officers had arrested. White — who had been called to the area to investigate citizen complaints about Gray’s arrest — arrived and walked to the rear of the van. Porter, Rice and other officers also were there.

Donta Allen credit: baltimoresun

Donta Allen
credit: baltimoresun

It is here that The Sun’s social justice narrative shines through. The account does not say anything about Allen’s testimony about Gray again rocking the van and beating on its walls. Allen’s supposedly told officers he was upset with them for putting him in a van with a “crazy man.” It now seems clear that not only did Gray do things that could have caused his injury immediately after being arrested and before he was restrained hand and foot, but sometime later, after Allen was picked up. Obviously he could not have suffered his injuries prior to that point, and he was clearly doing things no officer could have seen, or stopped, without stopping the van and opening the compartment that held Gray.

The police account also noted some of the conflicts in the officers’ statements.

According to White’s statement, she could not see Gray’s face because his head was turned away from the van’s door. She asked Gray, “Sir, what’s going on?” He didn’t say anything, White told investigators, adding that she assumed he was being uncooperative.

In her statement, White recalled Porter saying that Gray’s medical problem was ‘jail-it is’ — a reference to not wanting to be confined. She said none of the officers informed her that Gray had asked for a medic.

Porter told investigators that White asked Gray if he needed a medic or wanted to go to the hospital. Gray did not respond to that question. He simply said, ‘Yeah,’ when she called his name, according to Porter.

And the “conflicts” are?

Porter told investigators that White directed officers to get medical care for Gray, after Porter told her that Gray appeared to be in distress. Porter said White told him to follow the van to the Western District police station, drop off Allen and follow the van with Gray to a hospital.

Police said Allen told officers, who were trying to determine how Gray was injured, that the van didn’t drive recklessly or make any fast turns while he was in it.

According to the police investigators’ account, at the district station, Porter, Goodson and Officer Zachary Novak opened Gray’s side of the wagon. Gray was on his knees facing the van’s cabin, with his head leaning against a wall. It looked like he wasn’t breathing.

They called his name, but he did not answer.

An ambulance was summoned. Porter said, ‘He’s not looking too good,’ according to his statement. Gray was unresponsive when he was taken out of the van and driven to a hospital.

Again, there are no conflicts in officer’s testimony to be seen in this account. One wonders about what The Sun is talking. Wishful thinking? This brief passage, however, speaks volumes about what may have happened.

Sgt. White’s direction is, considering the flow of events, entirely reasonable and the right thing to do. Prior to that point, there was no clear evidence to tip the potential balance over the “faking/hurt” threshold. Keep in mind that White need not have been convinced that Gray was actually in real distress. She was almost certainly working on the CYA (Cover Your Ass) principle, sending Gray to medical care just in case, and to avoid letting Gray set up the BPD and herself for a scam lawsuit. Remember, officers deal with this sort of thing every day. That she did not direct the officers to immediately take Gray to the hospital, or immediately call an ambulance, obviously reflects her lack of conviction that he was in immediate and significant medical distress, which under the circumstances, was entirely reasonable.

Some, at this point, may be thinking “Oh yeah? He obviously was in real distress, wasn’t he?” Twenty-twenty hindsight is a wonderful thing, but cannot be applied here. The law judges officer’s actions based on what they—or any reasonable police officer–knew or reasonably should have known at the time. If the rule of law holds in this case, that standard will go a very long way toward acquitting the officers.

We also now know—to the degree we can know anything about this case with confidence–that Gray’s injury must have occurred only after Donte Allen was placed in the van, and during that time Gray was once again rocking the van and violently beating himself against its interior, a fact The Sun somehow thought to be unworthy of inclusion in its article. Yet Allen’s testimony makes clear that during that brief and pivotal time, the van was not being operated recklessly or unprofessionally. Where is there any evidence to support a charge of second-degree—“depraved heart”—murder against Goodson?

As I’ve previously pointed out, Allen has recanted some of his previous testimony, but defense attorneys will have no difficulty impeaching him to the officer’s benefit and the prosecution’s detriment. Any reasonable person will understand that it was Allen’s first statement that was honest and uninfluenced. His second was a response to the very real threats of the Baltimore community to anyone breaching the social justice narrative.

Significant too is Gray’s posture when he was next seen at the District Station. Obviously, he had been moving around the van—his posture and position in the vehicle would make this obvious even without his rocking the van and beating himself against its interior—and apparently, he had caused his injury at that point. He may not have appeared to be breathing, but obviously was, as he did not perish for approximately a week.

Charging documents state that Gray ‘was no longer breathing at all’ by the time officers tried to remove him from the van at the Western District station. ‘A medic was finally called to the scene, where upon arrival, the medic determined that Mr. Gray was now in cardiac arrest and was critically and severely injured,’ according to the documents.

The idea that Gray wasn’t breathing at all at that point is unlikely as he would probably have died before medics could arrive. It’s likely that actual medical testimony will be sufficiently different to severely damage the prosecution’s case.

Final Thoughts:

It is not enough to show that a police officer did not do everything he might have done in a given situation absolutely perfectly. As long as an officer is following policy, the law, and acting within the reasonable limits of the exercise of professional discretion, he should never be held liable. Indeed, in many circumstances we all might have done something better, or might have acted a little more quickly, but failing in such things is not evidence of malice, nor should it destroy our careers or put us in prison.

Clearly, during the brief time that Gray’s injuries likely occurred, he was causing them himself. In addition, by that point in the transit, the officers had already checked Gray several times, and were clearly taking reasonable steps to try to determine if he was in any real medical distress or merely faking. None of this bodes well for an argument of a conspiracy by six officers to harm Gray.

As I’ve maintained from the beginning of this series (the Freddie Gray Archive is here), if real evidence of criminal conduct on the part of the officers is made known, I’ll adjust my analysis accordingly. I’ve yet to see any such evidence, and everything that has been revealed to date supports the officers.

As to Porter being an important witness against other officers, it seems, for the moment, not that Porter is going to testify that any other officer did anything illegal, or lied, but that the prosecution is going to try to twist his statements and testimony in any way that might tend to create a kind of reverse reasonable doubt in the minds of the jury. Again, this is a backward case, where the prosecution will try to create reasonable doubt, and will argue that the jury should ignore the law and make their decision on emotion. The defense will argue reasonable police procedure, logic and the law.

Because this is a social justice case being tried in a social justice jurisdiction, what should be a pre-ordained verdict will be, until it is delivered, very much in doubt.

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