credit: insider.foxnews.com

credit: insider.foxnews.com

I can’t say it often enough: I, and ever other analyst, am piecing this case together from the writings of reporters, most of which obviously–from what they include in their reports, the flow and focus of their writing, and what they omit–don’t understand the flow and currents of criminal cases. This case is also unique because of the extraordinary pressures any juror will face, the refusal of the judge to grant a change of venue in a situation that would be a textbook example for change of venue, the possibility of stealth jurors, several incidences of prosecutorial misconduct already exposed, and more likely to come, and the future of policing in Baltimore, and to a lesser degree, elsewhere, hanging in the balance.

The most significant news in this update is that the prosecution rested its case at midafternoon on Tuesday, 12-08-15. The Defense case will begin on Wednesday morning, and I suspect they will call more witnesses than the prosecution, and far more impressive and authoritative witnesses.

Prosecutorial Misconduct: 

The Defense revealed that the Prosecution did not disclose information that Freddie Gray claimed prior back injuries about a month before his death. Judge Williams denied a mistrial, which will, if necessary, provide the Defense with yet another significant incidence of reversible error, but did acknowledge the prosecution’s discovery violation and ruled that the violation could be used by the Defense as evidence.

credit: electricliterature.com

credit: electricliterature.com

Dr. Carol–Sherlock–Allan: Allan is the state medical examiner that did the autopsy in this case, and instead of confining herself to her field of expertise, has tried to play Sherlock Holmes.

Dr. Allan, who initially ruled Gray’s death accidental but changed it to “homicide” after speaking with Prosecutor Marilyn Mosby, testified that the officers may not have intended to kill Gray, but his death was a result of “police actions” and was not entirely accidental.

Allan, who earlier testified that Gray wasn’t injured during his arrest, testified that Gray was injured between the second and fourth stops of the van, and that she wouldn’t have ruled the death a homicide had Porter or the van’s driver, Officer Caesar R. Goodson Jr., sought medical care for Gray at the fourth stop.

She said her findings did represent a theory, but one based on her medical expertise and information from witnesses, including the testimony Porter gave to police investigators.

Among the serious problems with this conjecture, is that it was not until the sixth stop that Gray’s medical condition was clearly apparent, and when it was, Porter and others immediately called for emergency medical assistance and did their best to administer aid until they arrived. Not only does this not sound remotely like the actions of aloof, uncaring police officers, Allan’s supposition that Gray was injured sometime between the second and fourth stops demonstrates that she doesn’t have a clue when Gray was actually injured or how it happened. She’s guessing, and doing it in service of the Narrative, not forensic science and justice.

In cross-examination, Murtha asked Allan about a statement given to police by a man who was arrested and placed in a different compartment of the van during its fifth stop, before it arrived at the Western District station.

Donta Allen told police that he heard Gray ‘striking his head as if he wanted to hurt himself’ four or five times in the back of the van, Murtha said. Allen, who could not see Gray at the time, has since recanted that statement.

Dr. Allan said she does not believe that is what Allen heard, because it would have been inconsistent with the injury occurring between the second and fourth stops. She said the noise could have been caused by Gray having a seizure from a loss of oxygen to his brain.

Perhaps, but Allan could also be wrong, and Donta Allen–who is going to do substantial damage to the prosecution’s case by his behavior and perjury–could be entirely correct in his initial statement to police, a statement given when he had no idea how politically charged the case would become. It is also entirely possible Gray was trying to injure himself sufficiently to extort money from the City, but miscalculated, and what Donta Allen heard was Gray’s calculated attempt to do just that, ending between the fourth and fifth stops with his neck injury.

This is interesting: 

Murtha had asked Allan earlier in the day whether she was aware that an EMT administered Narcan to Gray.

Emergency technicians use Narcan when they believe someone is suffering an overdose of an opioid, such as heroin. Herbert [EMT] said that ‘the first thing that crossed my mind was overdose.’

Allan said she was aware of that, but added that the Narcan had ‘no effect’ on Gray. Allan also testified that a urine sample taken from Gray upon his initial admission to Maryland Shock Trauma Center tested positive for marijuana and opioids.

The Washington Post added a number of details omitted by The Baltimore Sun:

No one was there,’ Allan said. Cameras inside the van were inoperable. Witnesses and detectives offered only pieces of the story. Her judgment that Gray’s fatal injury was foreseeable and preventable, she said, was based on her experience, her autopsy and her investigation.

Gray, according to Allan, likely stood up in the van after he had been shackled, handcuffed and placed on his stomach in a compartment in the back. He then hit his head because of a dramatic acceleration or deceleration of the vehicle, she said, and was paralyzed from the neck or shoulders down while his ability to breathe slipped away.

If Gray had received medical treatment when he asked Porter, about halfway through the ride, Allan testified, his death would not have been a homicide. Instead, Officer Caesar R. Goodson Jr., the driver of the van, stopped to pick up another suspect and then drove to the headquarters for the Western District before Gray was found unconscious inside and a medic was called, prosecutors said. Goodson, also charged in the case, is awaiting trial.

This is perhaps the most obvious evidence of Allan’s attempt to play detective. If Gray did, in fact, choose to stand in the van, how is that the fault of the officers? Even if they did use a seatbelt on Gray, only people unusually inflexible or having arm or shoulder injuries or disabilities would be unable to open a seatbelt. Putting a seatbelt on a prisoner is no guarantee that it will remain on that prisoner if he or she doesn’t want it there. Even if Gray had been seatbelted, if he were determined to play “crash for cash,” it would have taken him mere seconds to open the belt.

And where is any evidence of “a dramatic acceleration or deceleration of the vehicle?” Apparently, no such evidence has been introduced. If it were, it’s highly unlikely media sources would have ignored it, as supportive of The Narrative as it would be.

Since no one knows when, or precisely how, Gray was injured, or the progression of symptoms following that injury, to suggest that he could have been saved if action “B” occurred as some specific time picked out of a hat is ludicrous. Sir Arthur Conan Doyle would never have put such an unsupported leap in Sherlock Holmes’ head. And it is this that determined whether Gray’s death is an accident or a homicide?

The Neurosurgeon: Dr. Marc Soriano, a neurosurgeon from Illinois, did his best to support The Narrative:

His brain would have likely survived’ had he been given a breathing tube sooner, Soriano testified. Instead, Gray suffered a ‘hunger for air’ as his condition deteriorated from the shifting of one of his vertebrae and the pinching of his spinal cord following a high-energy impact in the back of the van, Soriano testified.

Soriano agreed with Allan’s finding as to the timing of the injury, testifying it was ‘perfectly consistent’ with Gray being unable to lift himself up or breathe regularly when Porter found him on the floor of the van at the fourth stop.

This too is complete conjecture, and far from the only or most likely scenario. Soriano, like Allan, has no real idea when Gray’s injury happened or the progression of its physical manifestations. What Soriano testified might be “perfectly consistent,” if Allan’s guesses are correct and supported by irrefutable evidence. They are not. It’s interesting that Soriano’s qualifications were not specified in any media account I’ve seen. Being a neurosurgeon does not normally qualify one to speak to forensic issues, and one might imagine finding neurosurgeons substantially closer to home. Surely there are one or two in the Baltimore region?

But what of Officer Porter? What could he have reasonably known?

Murtha asked Soriano whether Porter would have been able to tell that Gray was in intense pain. ‘Not necessarily,’ Soriano said.

No kidding.

Murtha also asked Soriano if he could testify that Porter had ‘extensive knowledge’ of Gray’s injuries. Soriano said he could not.

Soriano also claimed that Gray could not possibly have sustained his injury by banging his head against the walls of the van, but if he were doing that, as Allan–and Allen–suggested, while standing, and the van accelerated, stopped, or turned and Gray lost his balance… It’s one thing to defend one’s theories, but this sounds like Soriano was doing anything necessary to defend The Narrative.

Apparently the Defense did not follow up these logical lines of questioning.  If not, it’s likely because they’re going to bring it all out, and in more convincing fashion, in their case.

If we assume that Gray had already been injured prior to the fourth stop, could a reasonable police have concluded this was due to a life threatening neck injury or merely Gray faking it? Speaking from personal experience, and considering that all of the officers believed Gray to be faking, that’s highly unlikely. I’ve seen exactly that kind of behavior, even people making an excellent simulation of not breathing, more times than I can count. Police officers often pick up some medical knowledge through self-study and exposure to EMTs and ER doctors and nurses, but most are far less well trained than even a beginning EMT.

It’s interesting that Angelique Herbert, one of the paramedics that initially treated Gray, at first believed that he overdosed. And Porter was supposed to have been far more accurate and insightful than that?

Paramedic Procedure:

In a videotaped interview Porter gave to investigators that was played last week in court, he told investigators that medics typically don’t respond to calls to treat prisoners if they are already in a police wagon. But Herbert said that in her 17 years as a medic, she has never refused a request to aid a prisoner.

I’m sure she hasn’t, but anyone experienced in street level law enforcement knows that officers and paramedics use their discretion every day. If the police don’t believe a suspect really needs medical help, they won’t call for it. Paramedics expect the police to transport anyone that is not a genuine emergency to the ER rather than tie up an ambulance and crew for someone that does not actually need emergency medical support. Officers will usually transport someone they believe to be faking–in no real hurry–just to cover their posteriors. If a doctor gives them a clean bill of health, they’re clear to take them to jail. Unfortunately, that normally takes hours and ties up several officers, but it’s normal procedure, and was what these officers were apparently in the process of doing.

DNA Follies: 

Crime lab technician Thomas Wisner processed the van in a forensic bay at Baltimore police headquarters. Wisner said he collected 15 blood samples from the van on April 20, one day after Gray’s death and eight days after his arrest.

Under cross-examination, Wisner couldn’t confirm whether anyone else was in the van before April 20 that could have contaminated evidence.

Remember that the lead detective in this case testified that she considered Porter to be a witness, and the van had not been taken into evidence. This renders any biological sample collected entirely useless as evidence. Absent a clear chain of custody, anything collected is presumed contaminated.

From the media stories, it’s not clear why DNA was introduced at all. No one is disputing that Gray was in the van, and even the Prosecution has not asserted that the officers beat Gray, nor did Allan apparently testify that blood patterns and placement in the van had anything to do with her analysis.

Final Thoughts:

Police officers live in a world where they mostly see decent people at their absolute worst, and criminals as they normally are: as examples of the worst impulses and excesses inherent in humanity. Decent people have no use for the police, unless they’re reporting a crime perpetrated on them by criminals. It’s difficult for them to understand a police officer’s world, and TV cop dramas are far more misleading than revealing.

As I’ve written in earlier articles (the SMM Freddie Gray archive is available here), the Prosecution was not withholding information from the public–and the Defense–out of concerns for justice and ethical purity, but because they had no case. Since they have rested, there can no longer be any doubt. They have no case.

Their entire theory relies on the idea that all police officers must be mindless slaves to policy, even if they are unaware of that policy.

Reminder: the new seatbelt policy was sent out more than a week before Gray’s arrest in an 80-page memo(!), in a computer system that was decrepit, non-functional, and had an inadequate number of terminals. The BPD IT head testified that there would be no way to tell if Officer Porter, or any officer, read any e-mail.

It also relies on the idea that by failing to follow a single policy, to use a seatbelt on every prisoner, Porter could not fail to foresee the specific means by which Gray would become injured and die, and is therefore culpable in multiple felonies.

The reality is that police agencies have a wide variety of policies. Some are merely documentation of necessary and rational police practice. These are followed because they work and protect everyone, officer and the public alike. Others are boneheaded administrative ideas, mandates that not only make effective and efficient police work harder, but can actually make it more dangerous. The more boneheaded the policy, the more likely it is written to deny officers discretion, and the more likely the administrators involved are to rigorously enforce it.

Among the Prosecution’s problems are it will be necessary to demonstrate that Porter must have known that not seatbelting Gray would have resulted in his death, and the specific mechanisms of that death. This is not only impossible, but stupid. It’s the result of a political prosecution, not a prosecution based on the law and the evidence. When officers have transported millions of people without seatbelts for more than a century all across America, how is it possible that any officer can be certain of such a thing in this, or any, case?

The Prosecution is arguing too that the very instant anyone claims a medical problem, officers are obligated, apparently without any exercise of discretion, to take them to an emergency room. After this case, Officers will do just that without fail. Police administrators, medical personnel, and the citizens of Baltimore will come to regret it. Criminals will not.

Another problem that the Prosecution has–and this is a problem that will inevitably affect everyone living in Baltimore–is that this theory, even if not a single officer is convicted, is going to cause every Baltimore PD officer to do as little as possible. They will understand that if they so much as touch the wrong person at the wrong time–and they’ll know who the wrong people are–they will find themselves being prosecuted for behaving as their peers do every day–for doing their jobs properly. An example that suggests why the Prosecution imported Soriano:

Soriano testified against Baltimore police in 2010, at the civil trial of three officers accused of failing to seat-belt a detainee who suffered a serious neck injury and died.

In that case, officers were alleged to have given Dondi Johnson a ‘rough ride,’ causing him to suffer a fracture of the C4 and C5 vertebrae — the same bones Soriano testified were damaged when Gray was injured.

No criminal charges were filed in that case, but the officers lost a $7.4 million civil judgment. An appeals court later lowered the amount.

The city has agreed out of court to pay a $6.4 million settlement to Gray’s family, who have been in attendance at Porter’s trial. The settlement did not acknowledge any wrongdoing on the part of the officers.

After the Freddie Gray case, what BPD officer can imagine that if an arrestee somehow ends up seriously injured, whether they did it to themselves won’t matter. Remember that the Obama DOJ has its hooks in Baltimore, and will never go away. The degree of micromanagement and racial privilege that is going to engender will be awesome to behold. Even if acquitted of all charges, none of these officers are going to quietly resume work in the BPD. Their careers in Baltimore are over, and perhaps, any hope of a police career anywhere. If they are convicted and jailed, they’re dead.

Anyone thinking that increasing crime in Baltimore has reached the high water mark isn’t paying attention. Based on the evidence thus far revealed, the charges against William Porter should never have been brought. That doesn’t mean he won’t be convicted of something. Considering the bizarre, racially charged and inherently hostile climate of Baltimore, I’ll be surprised if any jury doesn’t throw the Prosecution–and more importantly, the raving crowds whose chants they could hear in the courtroom–a bone in the form of a conviction for something, anything.  Reasonable doubt and justice may not prevail where social justice has already rigged the game.

I also suspect they’re going to learn all too soon that the mob doesn’t really know what it wants, that its demands are nebulous and that ultimately, no mob can be appeased. Baltimore is in for a very rough ride that may last a generation or longer, and it’s not going to be the fault of six cops.

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