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

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

The first week of the trial of Officer William Porter ended without the prosecution making any obvious headway. In cases such as this, what is often most interesting and important is not what is said, but what goes unsaid, and so it is thus far in this case. The SMM Freddie Gray archive can be found here. 

As I said in Update 26, it’s important to remember that I have no direct information sources, and am relying on the media, primarily The Baltimore Sun, for information about the case. As a purveyor of The Narrative, it is remarkable that The Sun’s coverage has been as negative toward the prosecution as it has, however, there is probably no real way around reporting reality in this case. If The Sun tried, there would be little to report, so weak is the prosecution’s case.

WHAT’S MISSING (so far):

(1) Any mention of an inhaler used by Freddie Gray. An inhaler was an important part of the prosecution/media narrative before the trial. Gray was said to have, at least several times, plead for an inhaler, an inhaler denied him by cruel, evil cops bent on his destruction. What was missing at the time was any evidence that Gray actually had an inhaler or was actually using one, prescribed by a doctor, for a chronic condition. As I noted in past articles, unless Gray was actually carrying an inhaler that officers could reasonably believe was actual medicine actually prescribed for him, there is no way any officer could fulfill Gray’s supposed request for an inhaler. If Gray were not carrying one, there would be no way for an officer to obtain one for him, even if Gray could tell him precisely what kind of medication it was. No one provides prescription medication without a prescription, even to the police.

Apparently, the prosecution has dropped that issue. This would be expected if they looked into Gray’s medical history and found no prescribed inhalers. If Gray were using an inhaler, the prosecution would surely be using this part of The Narrative. If not, they would bury it as quietly as possible. Again, I’m relying on the absence of any mention of an inhaler in media accounts, and the trial is not over, but it’s interesting how The Narrative is falling apart so early in this trial.

(2) The opiate and marijuana indicators in Gray’s blood. Perhaps they were mentioned in court and not in media accounts, but apparently even the coroner did not mention them, and the defense has apparently not made them an issue as yet. There are several possibilities: in the George Zimmerman trial, the defense never raised the marijuana indicators in Trayvon Martin’s blood, and the prosecution absolutely did not. I suspect this was so because the prosecution so badly bungled the case–and there was no evidence in the first place–that the defense did not want to appear to be unnecessarily piling on Martin. That may be a factor here, however, I doubt it.

Gray’s level of drug influence may be a significant factor in this case, as it could at least partially explain his violent and self-destructive behaviors in the van, and provide more than adequate motivation for him to run from the officers in the first place. They didn’t know he was high, but he certainly did. Perhaps the defense is waiting for their expert witnesses regarding the autopsy for this, and if they have Dr. Vincent DiMaio, he is going to make the prosecutors wish they had never been born.

(3) Any mention by the prosecution that the initial pursuit, arrest and stop were illegal. These were absolutely vital elements of the pre-trial narrative, but apparently have yet to be mentioned. As I previously wrote, given the facts in the public domain, there seems no question that the officer’s stop and detention of Gray was entirely lawful under Terry, and finding a knife that they reasonably believed to be illegal under Baltimore–not Maryland–law, their arrest was entirely lawful too. Porter had no part in the pursuit and arrest, so this may account for the absence of this so far, but it would be unusual for the prosecution not to raise this issue as a means of claiming everything every officer did was unlawful from the initial pursuit. That it was not, and even a first year law student would know that, matters little to these prosecutors, and the trial is young.

(4) Any mention of the knife Gray was carrying. Enormous emphasis was put on this in the pre-trial Narrative by the prosecution. They refused to allow the defense to examine it for quite awhile (odd if it really were illegal; in that case, the prosecution should want the defense to realize it as soon as possible) and continued to claim it was not illegal, but that issue vanished from public view months ago, as it appears to have vanished at trial. Again, Porter had nothing to do with it, and the trial is far from over.

(5) Any evidence produced by the prosecution that any officer physically abused Gray during his arrest and initial placement in the van. I suspect this is so because video shows no such abuse took place, and because they need Gray to be uninjured until some, undefined and unknowable point during his ride in the van.

(6) Any hint of what evidence Porter might be able to give the prosecution against any other officer. The Prosecution has maintained that they wanted to try Porter first because they intend to use him as a “material witness” against his fellow officers. Thus far, there has been no indication of any evidence he might possess that would be useful. His recorded statement to the BPD is not apparently helpful.

WHAT’S UP:

The van involved was towed to the courthouse and viewed by the jurors, who asked no questions. Strangely, that vehicle has not been entered into evidence. The prosecution continued to try to equate any variance with police policy with criminal conduct: 

Deputy State’s Attorney Jan Bledsoe introduced as evidence a copy of a training booklet that Porter had filled out and asked Officer John Bilheimer, a police academy instructor, to read a section.

‘We do not transport injured people,’ the instructor read to the jury. ‘We render aid’ while calling for a medic.

This is, of course, the kind of thing one would find in a trainee’s most basic instructional material. What is not in that material is specific information about an officer’s broad discretion, nor the facts that it is officers, and virtually never anyone else, that must decide if someone is actually injured, or faking it, which is extraordinarily common. If an officer believes someone to be faking, there is obviously no need to render aid or to refuse to transport them.

This is interesting:

Joseph Murtha, one of Porter’s attorneys, asked Bilheimer who has responsibility for a person in the back of a police transport van, such as the one in which Gray was injured.

‘It lies on the shoulders, it is actually the responsibility of the wagon operator, is that correct?’ Murtha asked.

‘Yes,’ Bilheimer said.

This does not necessarily indicate an attempt to blame Goodson. There is no question that the transport van driver bears primary responsibility for the prisoners he transports, but, no officer is omniscient. No officer can know it all at all times, and as I’ve often noted, officers across the nation, and in Baltimore, have transported millions of people without the slightest injury. Enormous numbers of police agencies still have no seatbelt mandates, for good and professional reasons. Failing to follow a given policy, particularly one about which everyone in the agency recognizes is subject to substantial officer discretion, never constitutes the commission of a crime. That the prosecution in this case is trying to make possible policy violations felonies is one of the reasons so many Baltimore officers are flying under the radar, and the crime rate is skyrocketing, these days.

Bilheimer acknowledged on cross examination that violations of the department’s general orders are not typically the basis for criminal charges. Murtha read Bilheimer a passage of text indicating that violations are only the basis for internal police discipline.

Murtha asked the instructor if that was accurate.

‘Yes, sir,’ Bilheimer said.

This was an interesting exchange:

Tuesday also included testimony from Capt. Martin Bartness, the police department’s chief of staff, who was subjected to a barrage of questioning from another of Porter’s attorneys, Gary Proctor, about the complexity and inanity of internal police rules.

‘Would it be fair to say policy and procedure is not Baltimore police’s top priority?’ Proctor asked.

When Bartness didn’t answer, Proctor added, ‘They’re more interested in catching bad guys?’

‘They’re both priorities,’ Bartness said.

I’ve previously suggested that the police will be pitted against each other in this case, high-ranking brass against line officers. This is an example. Refusing to answer a question will be noticed by the jury, and will not help the credibility of Bartness or of the prosecution. For the brass, policy is life. It’s what they know and care about. For working officers, it is too often an unnecessary and idiotic impediment to efficiency and safety.

The idea that Porter knew all about the seat belt policy and ignored it took a beating:

Another state witness, Andrew Jaffee, director of information technology for the police department, testified that he downloaded an archive of Porter’s emails for a period of days surrounding Gray’s arrest.

Porter received an email on April 9 updating the department policy for seat-belting detainees. That update required all detainees to be seat-belted, removing a previous provision that dangerous detainees who posed a threat to officers did not have to be seat-belted.

Jaffee said the archive showed Porter received the email, but could not show whether he had opened it or read it.

‘And you certainly don’t know if he understood it, do you?’ asked Proctor.

‘I can’t speak to that,’ Jaffee said.

This will reduce the prosecution to the argument that Porter is responsible even for things he didn’t know and could not be reasonably expected to know. People in every job understand that people can’t be held accountable for what they didn’t know. Officers in large agencies know that internal communication is one of the worst problems, and a problem that is never solved. For example:

Proctor also questioned Jaffee on a slew of computer problems the department was having around the time of the policy change.

Computers at the Western District station were ‘functional but not optimal,’ Jaffee said. A virus was detected that made opening some links difficult. Computers were slow and antiquated.

Oops. 

A crime scene tech., Off. Jennifer Anderson testified that she photographed the van, but was told it was only an investigation, not a crime scene. She testified that she took no biological samples, which makes the prosecution’s notice that it intends to introduce DNA evidence interesting, to say the least. Who collected it, where and when? If the van were not adequately protected as an active crime scene, any biological evidence taken would be inevitably contaminated and useless. And as I’ve previously written, it’s difficult to imagine what part DNA evidence might possibly play in this case.

REVERSIBLE ERROR, EXAMPLE 2349:   

As the grainy video of police lifting Freddie Gray by his arms and ankles and putting him into the back of a police van played in court Thursday, his mother let out a sob and burst into tears.

Brandon Ross, who recorded the footage and was on the witness stand, stood up and wiped at his eyes to hold back tears.

The 31-year-old from Sandtown-Winchester, the West Baltimore neighborhood where he grew up with Gray — ‘We were like brothers,’ he testified — turned his back to the court and walked into a rear corner to the side of the judge’s bench.

Judge Barry Williams called a recess as family members ushered Gray’s mother, Gloria Darden, out of the courtroom. Prosecutor Janice Bledsoe went to Ross’ side to lead him out as well.

Should Porter be convicted, allowing this kind of inherently prejudicial behavior in the courtroom will encourage an appeals court to overturn Judge Williams. It will be interesting to see if it continues.

The prosecution played two grainy videos of Gray’s arrest, and Brandon, Ross, apparently the man who was with Gray minutes before he ran and was arrested, testified:

Ross described being with Gray the morning of April 12, walking with him and another friend toward the intersection of West North Avenue and North Mount Street. Ross said he was on his way to see a man about a carpentry job.

‘As we was turning the corner, Freddie started running,’ Ross said. The next time he saw Gray, he was in the custody of police.

Bledsoe asked Ross what he saw at the intersection of Mount and Baker streets, where he recorded the video and where Porter is seen arriving in his patrol car.

Ross said officers picked Gray up by the ankles and wrists ‘and threw him onto the [van] floor like he was hogtied.

Missing from The Sun’s account is the cross examination the Defense surely must have done, such as asking why Gray ran, asking about Gray’s drug use before his arrest, and a variety of other, very obvious issues.

Gary Proctor, one of Porter’s attorneys, pointed out that the video showed Ross and Porter knew each other by name.

He asked Ross why he turned to Porter — of all the officers on the scene — to call for a supervisor in order to make a complaint about Gray’s treatment.

‘The person you trusted with that complaint was Officer Porter?’ Proctor asked.

‘I wouldn’t use the word ‘trust,’ but …’ Ross responded.

‘The person you went to?’ Proctor said.

‘Yes,’ Ross said.

This is particularly interesting:

Is there anywhere in that video where Officer Porter lays a finger on Freddie Gray?’ Proctor asked.

‘Objection!’ said Bledsoe.

‘Overruled,’ said Williams.

‘No,’ said Ross.

Baltimore Prosecutor Janice Bledsoe credit: sodahead.com

Baltimore Prosecutor Janice Bledsoe
credit: sodahead.com

Bledsoe is the prosecutor who actually represented Gray on criminal charges before she went to work as a prosecutor. She also tried to steer police investigators away from the fact that Gray was known for “crash and cash” scams when arrested in the past.

Bledsoe also introduced a form signed by Porter in 2012 indicating that he had received the department’s general orders.

Those orders instructed police to ‘ensure the safety’ of anyone arrested, and to make sure detainees receive medical treatment if necessary.

These are obviously foundational issues, but will be meaningless in the jury’s eventual decision. People sign all manner of things–police officers more than most–when they take a new job. Virtually no one remembers them.

PORTER’S INTERVIEW:   

Porter was interviewed by BPD investigators shortly after Gray’s death. Interestingly, they testified that they did not consider him a suspect, but a witness. The tape of his interview was played in court.

Officer William G. Porter told investigators in a recorded interview played for jurors Friday that he did not believe that Freddie Gray was truly injured as the 25-year-old asked for medical attention in the back of a police van.

Porter, speaking to detectives in April as Gray lay in a hospital bed with a spinal injury, said he knew Gray from previous incidents and that Gray had a reputation for being difficult during arrests. He said Gray seemed lethargic inside the van but responded to questions and did not articulate a specific medical problem.

‘I said, ‘What’s your deal, what’s wrong with you? … He doesn’t say anything, just ‘Help,’ Porter told the investigators in the video recording.

I suspect jurors will give considerable weight to this tape, whether Porter testifies or not. Would he be more or less likely to be candid if he believed himself to be a witness or a criminal suspect? The answer is obvious.

Police training instructors have testified that it is department policy to call for a medic for anyone who appears injured or asks to be taken to a hospital. But Porter told investigators in the recording that arrestees regularly feign injury to avoid going to jail, and that medics routinely did not respond when requested unless an ‘exigent’ situation was apparent.

Instead, Porter said, he told the van driver and later a supervisor that Gray would not be accepted at Central Booking if he were complaining of an injury and would require a trip to the hospital. Officers agreed that Gray would be taken by police van to Bon Secours Hospital, he said, and Porter would be assigned to stay with him.

‘The medic won’t take a prisoner if we already have a transport vehicle,’ Porter told the investigators. ‘You transport them in the wagon.

This is common police practice. Why send an ambulance to transport someone, unless their injuries are so obvious and life threatening that they immediately need professional medical care? A police van can take a non-emergency potential patient to the hospital as easily as an ambulance, and without unnecessary tying up an EMT crew. EMTs in a city like Baltimore are as busy as the police, often even busier. They too know that most people under arrest complaining of vague injuries or illness are faking. However, when Porter had cause to believe Gray was actually injured, he immediately acted:

Before they got there, Porter said, Gray was found unconscious and not breathing. Porter demonstrated Gray’s position in the van by putting his hands behind his back and slumping into the interview table. Porter recalled someone saying at that point, ‘Oh s—, we need to call for a medic.

This is interesting too:

Porter’s video interview with detectives was recorded five days after Gray’s arrest. Porter first spoke to Syreeta Teel, the lead detective in the department’s investigation, over the phone. On the witness stand Friday, Teel recounted that Porter had told her that Gray had said he could not breathe. Prosecutors have focused on that statement as evidence that Porter should have known that Gray had a serious medical problem.

In his recorded interview, Porter told Teel that Gray had no trouble breathing. Defense attorneys questioned the accuracy of Teel’s notes of the phone conversation, but she stood by her account.

Is Teel lying? Is Porter? It’s most likely neither is. Gary may have said that, but Porter didn’t believe it, which is entirely reasonable. Anyone who has been genuinely unable to breath understands why: if you really can’t breath, you can’t speak. If you can speak, you are breathing and in no danger of imminent death.

Porter described arriving on the arrest scene in West Baltimore after responding to a call for additional units. He first tried to track down someone who was with Gray, but returned to the scene as other officers were putting Gray into a transport van. Porter described a scene where a crowd was growing, yelling “police brutality” as Gray wailed in pain. Onlookers said Gray had been shocked with a Taser, which investigators later found no evidence of.

If Gray had been tasered, there would have been physical evidence, as Taser barbs usually leave small burns. If he had been tasered, the prosecution surely would be trumpeting it.

Prosecutors have said they do not believe that Gray was seriously injured at that point, saying that video shows he was able to lift his head and support his weight.

In the recording, Porter said he did not see anyone use force as Gray was loaded into the van on his stomach, with his hands shackled. The three officers involved in Gray’s arrest have also been charged and are scheduled for trial next year.

Why did the officers load him on his stomach? People often go limp and passively resist, playing to the crowd, and seeing if they can work a “crash for cash” scam. Try getting someone playing “wet dishrag” into a seated position in a car. Most officers are not injured in fights, but while dragging the Freddie Grays of the world, who often “wail in pain” as long as they know they have a sympathetic audience.

Porter said in the video interview that people who are arrested frequently go limp and ask to be taken to the hospital, where doctors determine there is nothing wrong. He said he believed that Gray was simply being uncooperative and that he had witnessed Gray during a previous arrest trying to kick out the windows of a police vehicle.

Once Gray was inside the van after his arrest at Gilmor Homes, he began rocking the vehicle back and forth violently, Porter told investigators.

‘Is there any way it’s possible he needed medical attention right there and then?’ Anderson asked Porter, to which Porter replied that he saw no sign of that.

It was Porter’s bad luck to end up repeatedly assisting others with Gray. This is likely for no reason more sinister than he had the bad fortune to be patrolling the area along the van’s route.

Porter later responded to another intersection, where the van’s driver — Officer Caesar R. Goodson Jr., who has also been charged — had asked for help checking on Gray. Porter said Gray was on the floor of the van and that he helped Gray up.

He and Goodson agreed, he said, that Central Booking would not take Gray in that condition. But Porter thought Gray just seemed ‘lethargic,’ as if he’d had an ‘adrenaline dump’ after fighting in the van and running from police.

What Porter meant by that is that people often become exhausted after experiencing an “adrenaline dump” such as he did in running from and resisting the officers. Considering the drugs in his system, one might expect his highs and lows to be more profound than normal.

Asked why he didn’t put a seat belt on Gray at that point — police vans are equipped with 10 seat belts — Porter said he ‘left before the [van] doors were shut’ to respond to the last stop before the Western District station, where another arrestee was placed in a separate van compartment.

This is an entirely reasonable and highly likely explanation.

Defense attorney Gary Proctor asked Teel about her impression of how Porter had handled the situation once they reached the district station and noticed that Gray was unconscious.

‘As soon as Officer Porter noticed medical symptoms, within 10 seconds, a medic was called. Is that fair to say?’ Proctor asked.

‘Yes,’ Teel said.

The prosecution could not have been happy with that exchange.

FINAL THOUGHTS:

There remains much ground to cover, but the defense is surely as pleased as possible with this initial week. Porter, thus far, has been portrayed as a young, idealistic and decent officer who touched Gray only once to help him sit up, and who actually assessed Gray several times, while maintaining a constant concern for his welfare. He was also experienced enough to believe Gray to be faking, and to know when he was not, and took appropriate action in both situations.

Remember that testimony has established that the officers always planned to take Gray to the hospital when they could–just for liability reasons–but none of them, including a supervisor–Sgt. White–believed that to be immediately, medically necessary.

That being the case, where is the negligence? Where is the criminal intent? Where is the violation of the law?

We’ll see soon enough whether justice, or social justice, reigns in Baltimore.

Prediction: It won’t matter if the first five officers are acquitted. The prosecution will shake this dead rat until the bitter end.

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