The jury in the trial of William Porter consists of eight women and four men. There are five black women, three white women, three black men and one white man. On the third day of the trial, with only opening statements and the testimony of a single witness completed, there have been no surprises.
From the beginning of this case I’ve maintained that unless the prosecution has somehow come by additional, very damaging evidence, there can be no convictions. In fact, charges should never have been brought. Even the prosecution’s own probable cause statements are devoid of probable cause. Judging by the opening statement of the prosecution by Deputy State’s Attorney Michael Schatzow, there is no such additional, damaging evidence.
As expected, the prosecution case will revolve around seat belts, and the argument that because no one used a seat belt on Gray, they were criminally negligent, such negligence amounting to murder and various lesser crimes. Chief Deputy Prosecutor Michael Shatzow began the prosecution’s expected litany of mischaracterizations and lies by saying:
There was no reason not to put him in a seat belt, unless you simply didn’t care.’ [skip] ‘The defendant is on trial for what he did, and more important, what he didn’t do.
Schatzow also said that Gray was not injured when he was put into the van, and actually admitted:
…Gray was later banging around the back of the van, so much so that it caused the van to rock back and forth, which he again pointed to as evidence that Gray was uninjured.
Schatzow alleged that Porter was present for four of five of the stops the transport van made, and at the fourth stop, heard Gray say “help,” and claimed Gray told Porter he couldn’t breathe. It was at that stop that Schatzow said Porter helped Gray to a seat and did not seat belt him.
More on the seatbelt issue:
Police protocols in place since 1997 have required detainees posing no threat to officers to be seatbelted, and just days before Gray’s arrest were updated to require seatbelting of all detainees, Schatzow said. Either way, Gray wasn’t fighting the officer and posed no danger, he said,
‘When those van doors closed, Mr. Gray was in a lot of trouble,’ Schatzow said.
Gray suffered a high-impact injury to his neck as the van continued, his autopsy states. Prosecutors were not able to pinpoint that moment, but said Gray was likely standing or kneeling when he hit his head with the impact akin to diving into a shallow pool, Schatzow said. That injury to his spine caused nerve damage that affected his ability to breathe, Schatzow continued, but the medical examiner’s office believes he was able to continue breathing for a time with the help of assessory muscles.
When the van made a fifth stop, Porter peered into the back and Gray was on his knees, slumped over. Porter described Gray to police investigators as ‘limp,’ and responded in the affirmative when Porter asked if he needed to go to the hospital, Schatzow said.
Police picked up a second arrestee, Donta Allen, and returned to the Western District police station. Allen was unloaded first, and when police looked in on Gray, he was in the same position as he had been at the fifth stop, Schatzow said.
Schatzow also claimed that Gray wasn’t combative and was no danger to the officers.
Again, as I predicted, the defense will be sticking to the truth, actual procedures rather than what administrators think to be ideal, reason, logic and the law.
Proctor, however, painted the Baltimore Police Department as a poorly trained, short-staffed agency where officers learned on the street from others. Proctor said a police officer will be called as a witness to testify that he had made 2,000 arrests and had seatbelted only a handful of those detainees.
‘The state seems to think [the police department is] this well-oiled machine,’ when it isn’t, Proctor said.
Proctor said Porter is a good cop with no record of misconduct, who was born and raised in West Baltimore and wanted to help his community. He said Porter showed discretion on the streets — he refrained from writing citizens tickets for open containers because he knew few could pay, but he wrote them up for loitering in an effort to get them off corners and home safe.
‘He didn’t become a police officer to swing a big stick,’ Proctor said. [skip]
‘He said police officers are bombarded with emails, and Porter had never seen the new directives on seatbelting that were e-mailed just days before Gray’s arrest. Proctor described the police academy as a crash course in police procedures — he also noted a 2013 incident in which a trainee was shot in the head by an instructor at an unsanctioned training exercise — and said officers instead ‘learn by doing’ on the streets.
Humanizing a defendant for the jury is always a primary defense goal, and in this backward case, being sure to introduce evidence the prosecution will ignore or suppress is equally important, such as:
Porter knew Gray from prior interactions, and Proctor said he had weeks earlier observed Gray trying to kick out the windows of a police transport van. ‘It was always a big scene when you tried to arrest Freddie Gray,’ Porter told investigators.
Schatzow also told the jury that Gray was violently banging the van, making it rock back and forth. Proctor mentioned it as well:
Porter saw Gray rocking the police van, Proctor said. He noted Gray was 132 pounds.
‘Think of the energy it must have taken to make the wagon shake,’ Proctor said.
Giving a hint of upcoming defense testimony and tactics, Proctor noted:
For that reason, Porter was suspicious of Gray showing ‘jailitis,’ or feigning injury to avoid going to jail when he later seemed to be lethargic, Proctor said. Porter believed Gray was experiencing an ‘adrenaline dump’ after running from police and knocking around the back of the van, and saw no other reason to believe he was hurt.
Proctor said police procedures are not clear on when to get someone medical attention, offering them discretion for when they believe it is ‘necessary.
Another dose of defense reality:
EMTs who arrived at the Western District station when Gray was found unresponsive initially believed he may have suffered a drug overdose, Proctor said.
‘If trained EMS misdiagnosed him, how’s a two-year veteran of the force supposed to know?’ Proctor said.
This is a telling point. Police officers are given only the most rudimentary first aid training.
Witness: Officer Alice Carson Johnson
Carson Johnson was an instructor at the BPD academy in 2013 and taught “medical response training” to Porter’s class. Her testimony established a pattern that will occur throughout this, and every other, trial:
Carson Johnson said she teaches that officers should call for a medic when someone says they can’t breathe or specifically requests a medic.
Notice how that Academy/rule book admonition changes in reality:
However, on cross examination, defense attorney Joseph Murtha stressed parts of the training that tell officers to use their discretion to assess a situation, and asked Carson Johnson whether circumstances surrounding a person’s request for assistance – such as the person running for an extended period of time before saying they were having trouble breathing – should be considered. She said such circumstances can be part of an officer’s assessment of an individual’s needs.
Keep this fact in mind: Proctor is absolute correct. Officers learn far more from actually doing the job than they do from academy training and rule and procedure manuals, even in the best agencies with the best training. I suspect the BPD is not among the best, and this fact will play a role in these trials. The defense will have to be careful not to present that failing as an excuse for poor performance, but as impeachment for the prosecution’s claims of administrative rule brilliance.
In the opening statement of the prosecution, apparently missing was mention of an inhaler Gray supposedly requested. The prosecution initially made much of this, but apparently not now. Perhaps it will make an appearance later, or perhaps the prosecution discovered that Gray was using no inhalers and any such request was part of a scam, something they would not want the jury to hear about.
The issue of a notice about changes in seat belt policy being e-mailed to officers is significant. Officers have their own internal e-mail address, but there are normally few computers. It would not be at all unusual for officers to go days or weeks without checking e-mail, or having the opportunity to do so, making Porter’s claim never to have seen the e-mail entirely plausible.
As I’ve frequently written, the seat belt issue is a loser, unless the prosecution has managed to seat a jury willing to hang officers regardless of the evidence. Unlike Schatzow’s claim, there are a great many reasons not to use a seat belt on an arrestee other than not caring about their welfare. In fact, caring about an arrestee’s welfare may very well mandate no seat belt. I’ve no doubt the defense could produce hundreds of officers that have virtually never used seatbelts on arrestees. This exactly mirrors my police experience. We virtually never used seatbelts, and there was never a single injury incurred as a result. The defense will be able to show convincingly that seatbelts were not an issue, or a cause of Gray’s injury.
Admitting in the opening statement that they cannot tell when Gray was injured is deadly for the prosecution. This leaves enormous room for entirely reasonable possibilities for Gray’s injuries, which means more than enough reasonable doubt on that issue alone.
Arguing what Porter didn’t do is also a very difficult tactic. The prosecution will surely argue–as they have pre-trial–that because Porter didn’t use a seat belt on Gray, Gray’s death was foreseeable. This will quickly be exposed as nonsense. The prosecution will be hard pressed to produce evidence of any substantially similar injury suffered in a transport van–because Gray’s injury was likely a freak occurance–while the defense will be able to produce evidence of tens of thousands, perhaps hundreds of thousands, of transports that resulted in no injury whatsoever.
To successfully argue criminal negligence it is not sufficient to argue that an outcome was possible. The outcome, instead, must be so obvious and inevitable that no reasonable person could fail to foresee it, which was obviously not the case here.
Proctor’s mention of EMT’s suspecting a drug overdose when they examined Gray is also a clever tactic. He will no doubt use the prosecution’s own witnesses to introduce the fact that Gray had opiates and pot in his system, as well as the amounts. The prosecution will almost certainly avoid mentioning that and the defense will have to pull it out of prosecution witnesses, which will help to convince the jury that the prosecution is withholding evidence. something honest juries tend not to like at all.
Perhaps, as I’ve often written, the prosecution will produce previously unknown evidence that will change everything, but based on the opening statement and the first day of the trial, that seems even more unlikely than ever.
I’ll continue to report on the case, but probably won’t add another update until Saturday the 8th, after the first week of testimony. As you read these articles, please keep in mind that unlike the George Zimmerman trial, where I watched the entire trial via videotape, I’m relying on media accounts for this trial. That will surely require some reading between the lines and speculation. I’ll do my best to make it clear what is speculation and what is fact.
The Freddie Gray Case Archive Is Available Here.
Officer Goodson: Matthew Fraling, Sean Malone, Andrew Graham
Officer Miller: Catherine Flynn
Officer Nero: Marc Zayon
Officer Porter: Joseph Murtha, Gary Proctor
Lt. Rice: Michael Belsky, Chaz Ball
Sgt. Alicia White: Ivan Bates, Tony Garcia
Chief Deputy State’s Attorney Michael Schatzow
Deputy State’s Attorney Janice Bledsoe
Deputy State’s Attorney Antonio Gioia
Assistant State’s Attorney Matthew Pillion
Assistant State’s Attorney Lisa Goldberg