‘There was no intent in this case of fear, harm or death. It was an accident, and accidents happen.’
Dr. Vincent Di Maio speaking to Freddie Gray’s death
If the jury believes that–and there is every reason they should–William Porter will be acquitted on all charges. Of course, the unusual circumstances surrounding this case mean that reason and justice may not triumph over social justice.
As readers no doubt know by now, the Defense in the trial of Baltimore PD Officer William Porter has rested. Closing arguments will be done on Monday and deliberations will begin. I doubt they’ll take long regardless of the outcome. In virtually every respect, this is not at all a complicated case.
I predicted the prosecution theory long before the trial began. There has been no new evidence, no dramatic facts or plot twists beyond what was known to the public–other than the fact that the prosecution illegally concealed information about Gray’s contemporaneous complaint of a back injury from the Defense–before the trial. The prosecution’s theory and hope of conviction rests on these shaky props:
Porter had a duty to use a seat belt on Gray, but did not.
Porter had a duty, the instant Gray suggested any medical difficulty, to immediately secure medical treatment for him, but did not.
Porter should have known, indeed, any reasonable person must have known, that failing to put a seatbelt on Freddie Gray, and failing to immediately secure medical treatment, would inevitably–not merely possibly–lead to the 80% crushing of his spinal cord and his death. This was not a mere possibility, but an absolute certainty.
Porter’s failure to do those things–not anything he actually did to Gray–rises to the level of criminal–even felonious–negligence.
The Prosecution’s Evidence: The prosecution implied and argued all of this from its opening statement until it ended its case. It offered a instructional booklet Porter filled out during basic academy training suggesting that police officers should obtain medical aid for people, and a document signed by Porter in 2012 acknowledging receipt of the BPD’s general orders (which did not include the newest update of the seatbelt policy). BPD Chief Of Staff Captain Martin Bartness testified that policy is as important as catching criminals, and also suggested that all officers must rigorously follow policy.
Coroner Dr. Carol Allan testified that Gray’s injury occurred sometime between the 2nd and 4th stops and Gray would have been able to move and talk to some degree thereafter. Interestingly, she initially called Gray’s death an accident, but changed her mind after conferring with Mosby. Neurosurgeon Dr. Marc Soriano agreed with Allan’s testimony.
Porter’s taped initial interview and his own testimony confirmed that he did not use a seat belt on Gray, and did not recognize that Gray legitimately needed medical assistance until the 6th stop.
While there were several other prosecution witnesses, none of them gave significant testimony that had any real bearing on Porter’s potential guilt. The prosecution’s case was ridiculously simple, and nonsensical: Because Porter didn’t use a seat belt and didn’t call for medical help as soon as the prosecution preferred–they didn’t know exactly when that should have been–Porter is criminally negligent.
In normal, social justice/backward case style, the prosecution argued not the law or the facts, but what ought to have been, because social justice–Freddie Gray was black and died while in police custody.
The Defense Theory Of The Case: William Porter, who was not aware of any change in seat belt policy, acted reasonably and entirely in line with normal police procedure as he, and virtually every other BPD officer understand and apply it, by not using a seat belt on Freddie Gray, which was the ultimate responsibility of the van driver, Officer Goodson. He repeatedly checked on Gray and inquired about his condition, and reasonably believed that Gray was faking. He told Off. Goodson and Sgt. White that Gray should be examined, all agreed they would transport him to the hospital as soon as possible, and as soon as he understood that Gray was actually injured, called for help and administered what aid he could until help arrived.
The Defense Evidence: Porter’s initial taped interview and his testimony were in agreement. Porter asked Gray several times if he needed medical help, but Gray never gave him a credible reason to believe he needed it, nor did his observations of Gray. Porter was not aware of a change in policy regarding seat belts, and having helped with van transport of prisoners some 150 times, never saw a seat belt used with any prisoner.
Officer Zachary Novak, who was given immunity to testify at the grand jury and during the trial, said he always seat belts prisoners, but said that he had seen prisoners in transport vans belted only about 10% of the time. Prosecutor Janice Bledsoe treated Novak as a hostile witness and claimed he changed his testimony.
Officer Mark Gladhill, like Novak, was given immunity and testified at the grand jury. He testified that he had been involved in about 75 arrests, most using transport vans, and he had never seen a seat belt used on a prisoner.
Former BPD Commander and current Charlottesville, VA Police Chief Timothy Longo confirmed that policies, including the seat belt policy, were merely “guiding principles,” and officers must always use their discretion in applying them. He also confirmed that they are not matters of criminal law, but internal agency policy, matters to be decided only administratively. He said: “I believe his actions were objectively reasonable under the circumstances he was presented with at the time.” He also testified that Porter acted reasonably in not calling for medical help because he had not observed any signs of injury and had reason to believe Gray was faking.
Porter testified that the computer equipment at his station was antiquated and didn’t work. BPD IT director Andrew Jaffee testified that the April 9 change in seat belt policy was sent out in an 80 page e-mail–it was only one small portion of that much larger mailing—but he had no way to know if Porter opened or read it. He also testified that the equipment was antiquated and not in good working order at the time.
Training Officer John Bilheimer admitted that not following a given PD policy was not grounds for criminal prosecution.
Porter testified that he told Officer Goodson and Sgt. White that Gray needed to be examined, and all agreed to take him to the hospital. He testified that it was not until the 6th stop that he realized that Gray needed immediate help, and he immediately called for it. Det. Syreeta Teel testified that as soon as Porter realized Gray needed medical help, he called for it within 10 seconds. EMT Angelique Herbert initially thought Gray had overdosed and took awhile to understand that he had other problems. In fact, drug screening at the hospital revealed that Gray had been using opiates and marijuana.
Dr. Di Maio, arguably the foremost forensic pathologist alive, testified that Gray’s injury was an accident that must have occurred after the 5th stop, and that once injured, Gray would have been unable to breath and speak. Neurosurgeon Dr. Matthew Ammerman’s testimony supported Di Maio’s.
Current BPD Captain Justin Reynolds testified that Porter acted reasonably and that policies are not absolutes, nor are they grounds for criminal charges. He noted that officers must always use their discretion and sometimes have to violate policies. “You have to use common sense,” he said. “It prevails over everything else.”
Reynolds confirmed that this is understood within the BPD. Capt. Reynolds testified that getting in close proximity to arrestees is inherently dangerous, and that he had been bitten, spat upon and kicked. Reynolds testified that by helping Gray to a sitting position on the bench, Porter did more than most officers would have done. He also noted that when he recently worked at Central Booking, he found that 20-30% of arrestees complained of medical issues, but only 1.5% of those complaints were found to be legitimate. Capt. Reynolds repeatedly testified that everything Porter did was objectively reasonable.
Character And Credibility:
The Defense presented several character witnesses. Virtually all of the information included in this, and every other, article, came from reports by The Baltimore Sun, CNN, WBALTV and several other news sources (listed at the end of this article). Every one of those articles was sadly lacking in competent analysis of witness credibility. Media outlets are seldom shy about trumpeting the credibility of witnesses if they support the social justice narrative. When they pretend to be fair and balanced, when they do not speak at all about the credibility of Defense witnesses (as in this case), one can reasonably infer that those witnesses were very credible, effective and deadly to the social justice narrative.
By this measure, and by the testimony disseminated by the media, I believe Porter presented himself as an earnest, honest and believable police officer. He testified that he became a police officer to help people in his community and to treat them fairly, and that because he was brought up in the community he served, he was well qualified to do just that. He wasn’t Gray’s friend, but testified that they respected each other, and when Gray “wasn’t dirty”–when he wasn’t high on drugs–he would come out and speak with Porter as he came by. He also testified that he knew that Gray had been violent in a recent, prior arrest. Putting a police officer on the stand is always dangerous, but it appears that Porter was a very effective and believable witness, and the media did not report on any testimony the prosecution was able to elicit from him that would have been in the slightest damaging to the Defense case.
Likewise, the character witnesses called in Porter’s behalf, including an older woman that saw Porter as “like a grandson,” another witness that described Porter as one of his best friends, Porter’s first-grade teacher, and even his mother, portrayed Porter as precisely the sort of person the black community–or any community–would want as a police officer. It’s important to remember that character witnesses are usually accorded little weight–particularly when compared with hard evidence–by juries, however in this case, the prosecution presented essentially nothing to contradict those witnesses and their very favorable testimony.
Very important are four witnesses. The most important is Dr. Di Maio, whose testimony obliterated the prosecution theory of when Gray might have been injured, and his condition after receiving that injury. It also obliterated Dr. Allan’s Mosby coerced labeling of Gray’s death as homicide. Not only is Di Maio the foremost forensic pathologist alive, he is an exceptionally effective and likeable witness. He treats all lawyers with respect, but is unfailingly authoritative and believable because he rigorously sticks to his field of expertise, testifies only to what he can reasonably prove, and has the experience to back up his testimony. No prosecutor can fluster or discredit him, particularly in this case, where the prosecution had no evidence in the first place. Dr. Ammerman’s testimony, which precisely supported Dr. Di Maio’s testimony, was also very convincing.
Former BPD Commander Longo’s testimony was also very significant and believable. He laid the foundation for what is reasonable police behavior in this case. Not only was he a BPD executive, he is a current police chief, ultimately responsible for holding officers accountable, and determining what is and is not reasonable police behavior. He writes policy. I have to conclude that he was believable and likeable because of a complete lack of any indication that the prosecution was able to discredit him or his testimony.
More important than Longo’s testimony was that of current BPD Captain Reynolds. His testimony is credible for the same reasons as that of Longo, and also because he is currently involved in judging BPD officers and their adherence to policy. But mostly he is credible because the jury must understand that by testifying to the truth, by failing to fully support the social justice narrative, Reynolds is not only putting his career, but his life, in jeopardy. He will rise no higher in the BPD, and may very well be retaliated against. He had every reason to curry favor by doing as Capt. Barness did, and unrealistically demand that officers mindlessly adhere to all policies regardless of circumstances, yet Reynolds spoke about reality, about what was actually reasonable, and about what police actually do and why they must do it.
I’ll not list the elements of each of the offenses with which Porter is charged. Suffice it to say that given the evidence in this trial, there was no probable cause to arrest Porter, and there is no evidence proving the elements of those offenses beyond a reasonable doubt.
The Missing Witnesses: The dim and tragicomic Donta Allen was not called by either the Prosecution or the Defense. Considering how well things obviously went for the Defense, Allen would merely have muddied the waters, perhaps even confused the jury. Ultimately, he was a self-impeaching witness, and perhaps the fact that he is currently being held on other charges out of state had some bearing on his absence. This does not mean he may not appear in one of the five following trials, but it seems more unlikely now.
Also missing were any first or second line supervisors: sergeants or lieutenants, supervisors that actually wear uniforms and patrol the streets, working directly with officers and enforcing policy. This is almost certainly so because none of them wanted to be anywhere near this case. Testifying against the officers–and they would have to take the politician/social justice line if they did–would destroy their credibility with the troops. Testifying to the truth, that officers must use their discretion in applying any policy, and that Porter’s actions were inherently reasonable, would have ended any chance of advancement, and possibly, their careers.
There is little doubt that closing arguments will follow the patterns already set. The Prosecution will argue not the facts or the law, but the social justice narrative. They will play on the jury’s emotions, arguing that something happened while Gray was in police custody, so the police are somehow responsible, so Porter needs to be convicted of something because social justice! They will insinuate, mislead, and may be so unscrupulous as to suggest that failing to convict Porter will cause civic discord. If they’re that stupid, it could easily lead to a mistrial, but I wouldn’t put it past them. Their only hope is to construct an alternate, social justice reality that attacks the police as the enemies of the people, and that posits what should be rather than what is.
The Defense will argue the facts and the law. They will faithfully summarize the evidence, and in so doing, create far more than reasonable doubt for each of the four charges.
It may not be enough.
Remember that I was not present in the courtroom. I didn’t hear the tone of voice of the lawyers or the witnesses. I didn’t see their facial expressions or body language. I didn’t hear all of the testimony or the reactions of the jury, and in trying to understand what happened, am reading between the lines, and assuming that the media are behaving as they virtually always behave where a social justice issue is involved.
But what is most impressive is what the media have not written. Even if we believe they left out a significant amount of evidence favorable to the Defense, the evidence they did provide to the public is so overwhelming that no rational jury could vote to convict on any of the charges, yet they may convict anyway.
The alternative to acquittal is the virtual certainty of rioting, arson, and civil strife. Even worse, the jury must know that when rioting breaks out again, the police will do little or nothing to stop it. They know they’ll be on their own. They’ve seen the skyrocketing crime rate after the last riots. They know the police are staying as much under the radar as possible. And if they’re particularly astute, they’ll understand that the media are fanning the flames of anarchy. Should you doubt this, gentle readers, by all means, visit my next article, which will be posted tomorrow, Sunday, 12-13-15, which discusses the pleas of Baltimore officials for calm, and which analyzes a Baltimore Sun editorial about the Porter Trial.
The jurors–particularly the black jurors, also know that an acquittal will mean social ostracism at the least. It could also endanger not only their 15 minutes of fame, but possibly even a significant payday or two for selling their stories.
But this is far from the only potential damage. Ethical prosecutors file charges against the police only after careful and professional deliberation. They understand that the police will not only forgive, but support them if they prosecute corrupt cops, but if they unnecessarily prosecute honest police officers, if they prosecute, and worse, convict them for nothing more than the reasonable exercise of their professional discretion, they will utterly destroy their relationship with the police department. What officer can possibly trust them in the future? To be sure, officers will still do their jobs to at least the minimum standard, but losing the support, friendly aid, and even the protection of the police is a very destructive and dangerous thing, not just for individual prosecutors, but for the safety of the public.
In the Freddie Gray case, the damage has already been done. The BPD rank and file will not trust prosecutors for a very long time, long after Marilyn Mosby is a bad memory. All that remains to be determined is the depth and ferocity of the animosity the prosecution continues to build in BPD officers.
This prosecution has also pitted working police officers against their own brass, their supervisors and administrative officers. There is always conflict there, but in this case, any supervisor or administrator that obviously supports Mosby, the Mayor, or social justice politicians, will be seen as the enemy for as long as they have any position in public service. This is why Captain Reynolds’ testimony is so potentially powerful and convincing. He is directly at odds with the politicians that run the BPD. Most higher ranking officers are politicians first and police officers a distant second. Lines will be drawn, alliances made.
The net effect of this will be officers that believe–and they will have more than sufficient evidence to believe it–they cannot trust their supervisors and leaders, the politicians that run Baltimore, and the prosecutors. Accordingly, most BPD officers will slide even more deeply under the radar. They will take no chances, they will cease being proactive, they will do the minimum, and absolutely avoid contact with anyone they perceive to be a member of a politically favored victim group.
Officers driving vans will not drive an inch without demanding that every prisoner be buckled in, which will require calling multiple officers to manhandle every resisting prisoner to avoid injury to anyone. At the slightest hint, ridiculous or not, of so much as a hangnail, they will demand assessment by supervisors and demand that they immediately transport prisoners to the hospital, which will take vans off the street for hours, tying up not only multiple officers, but medical personnel. They would be fools to do otherwise. They will also begin videotaping–using their own smart phones, cameras, etc., any and all such situations, which will also require additional police manpower.
Baltimore politicians are about to get the social justice they crave. They’re probably too stupid to recognize the damage they will have done, and too venal to do anything about it, but the public will, eventually, get the message. They won’t like it, if they survive.
Criminals? They’re going to think they died and went to criminal heaven. I wonder what chants will be heard in the courtroom when the verdict is known?
The prosecution demanded that Porter be tried first because they wanted to use him as a material witness against the other charged officers. After learning of the lack of depth and quality of their evidence, and what Porter can possibly testify about, it’s difficult to imagine what they were thinking. But that assumes, as with all else in this case, they were thinking as dispassionate professionals rather than incompetent political hacks.
The Freddie Gray SMM archive is available here.