credit: cnn.com

credit: cnn.com

Closing arguments have been made, and the jury has deliberated for a few hours and gone home for the night. One can never be certain how long a jury will deliberate, or to what conclusion they’ll come, but I suspect it’s entirely possible they’ll decide sometime tomorrow.

Interestingly, the jury asked the judge for radio transcripts and the interview done with Porter, but because those items had never been entered into evidence at trial, Judge Williams properly declined to provide them. I suspect the prosecution, despite referring to both, and particularly Porter’s interview, didn’t want them in evidence because they were not only not useful to the prosecution, but actually helpful to the defense. Better never to allow the jury to see them so the prosecution could characterize them any way they pleased.

As I’ve been gathering information for this post throughout the day, I’ve been struck–and appalled, but not surprised–by media reporting. If one relied only on the mainstream media’s reporting today, they would believe Porter as guilty as sin, and wonder why he hadn’t already been executed. Every source I sampled, local and national, focused almost entirely on the prosecution’s closing and rebuttal, and said little about the facts of the case or the defense closing. The imbalance is truly obscene, but all too common for a media composed almost entirely of Progressives with bylines.

In a brief article, The Baltimore Sun reported this from the Defense:

The state is attempting to attack the credibility of Officer Porter,’ Joseph Murtha, one of Porter’s attorneys, said Monday. Murtha argued that ‘external facts’ show Porter is telling the truth.

The Sun almost entirely neglected telling the public what those facts might be. This represents the general, hyperbolic tone of the article:

On Monday, prosecutor Jan Bledsoe argued, ‘When Officer Porter failed to call for a medic, when that van door closed, that wagon became [Gray’s] casket on wheels.

The Washington Post, in a much longer article, was even more biased toward the social justice narrative:

Prosecutor Janice Bledsoe borrowed a quote from a famous French writer and a Hollywood blockbuster to conclude her closing argument in the case against William G. Porter, the first Baltimore police officer being tried in connection with Freddie Gray’s death.

‘With great power comes great responsibility,’ Bledsoe said. ‘Voltaire said that — and Spiderman.

Actually, it was Spiderman’s uncle that said it, but Bledsoe, and The Post, were rolling:

She told jurors that Porter had the power to save Gray at least four times but didn’t.

‘He abused his power,’ she said. ‘He failed in his responsibility. Hold him responsible. [skip]

Bledsoe had begun her closing argument with just a sound — a quick, quiet click.

‘How long does it take?’ she asked. ‘How long does it take to click a seat belt? And click a radio and ask for a medic? Two seconds? Three seconds? Maybe four.’

She continued: ‘Is two, three, four seconds worth a life? It’s all it would have taken.

In Update 26.4, I predicted that the Prosecution would avoid the law and the evidence, and focus on emotional manipulation and heated rhetoric (the SMM Freddie Gray Archive is here). Based on media accounts, I was clearly right, but that took no clairvoyance. Nothing I’ve seen relating to the closing arguments in any way changed my opinion of the lack of evidence and the lack of credibility of prosecution witnesses. There was no probable cause to arrest Officer Porter, and no evidence to try him. Another example from Bledsoe:

The only defense William Porter has is to say ‘I can’t breathe’ never happened at [the fourth stop],’ Bledsoe said.

She asked jurors to remember the testimony of Detective Syreeta Teel, who interviewed Porter soon after Gray’s arrest and who testified that Porter told her Gray said he couldn’t breathe during that stop.

She called Teel ‘the most credible witness in this trial.

She neglected to mention–though the Defense did–that Det. Teel admitted that there were errors in her notes of her interview with Porter, who she considered a witness, not a suspect. More on this interview later.

Bledsoe attacked Porter’s assertion that he thought Gray was faking an injury.

‘Officer Porter knew how serious the injury was,’ Bledsoe said, arguing that Porter’s claim that Gray had ‘jailitis’ was ‘a bunch of crap.’

She also pointed out that it was Porter, not Gray, who raised the issue of a medic. ‘He’s not playing the jail card,’ Bledsoe said of Gray.

‘Officer Porter knew that Freddie was hurt badly … but he did nothing.

WBAL TV was no different:

Baltimore Prosecutor Janice Bledsoe credit: sodahead.com

Baltimore Prosecutor Janice Bledsoe
credit: sodahead.com

She [Prosecutor Janice Bledsoe] questioned Porter’s credibility and pointed out discrepancies between his testimony and his statement to police.

WBAL made no effort in the article to list any of those alleged discrepancies, but did well cover the Prosecution rebuttal (NOTE: because the state bears the burden of proof, they deliver a closing first, the Defense delivers its closing, and the prosecution has an opportunity to rebut the Defense argument. They get the last word):

Chief Deputy Prosecutor Michael Schatzow (right)

Chief Deputy Prosecutor Michael Schatzow (right)

Prosecutor Michael Schatzow delivered a rebuttal, saying, ‘The defendant had a duty to keep Mr. Gray safe and he just didn’t care.’

Schatzow said, ultimately, Porter didn’t care whether Gray lived or died.

‘A callous indifference to human life is what killed Mr. Gray,’ Schatzow said.

Schatzow said Porter has credibility issues based on inconsistencies in statements to police and on the stand. Schatzow said the biggest reason not to believe Porter is because he has something at stake and he has a motive to lie.

If Schatzow had any examples of these supposed lies, WBAL didn’t mention them.

Schatzow defended the autopsy findings that Gray suffered his injury between the second and fourth stops of the police transport van.

Schatzow pointed out that Donta Allen was also a prisoner in the van between the fifth and six stops and was unharmed. Schatzow asked how one man can suffer a broken neck and how another not have a scratch between the fifth and sixth stops like the defense claims.

Perhaps because as dense as he is, Allen was smart enough not to stand up in a moving vehicle?  Perhaps because he was at least somewhat less stoned on pot and wasted on opiates than Gray?

Would anyone be surprised to learn that The New York Times was even more over the top?

A prosecutor dangled a bloody seatbelt…the very thing that could have helped save Mr. Gray’s life,’ Ms. Bledsoe said, holding up a seatbelt from a police van in which Mr. Gray suffered a spinal cord injury that both sides agree killed him. ‘It’s got Freddie Gray’s blood on it.

The Times was less impressed with the Defense:

Mr. Murtha laid out his counterargument in almost plodding fashion, taking jurors through a trial that, he said, produced ‘no evidence’ that his client had anything to do with Mr. Gray’s death. And Mr. Murtha took aim, although not by name, at Ms. Mosby, saying, ‘This case was premised on fear and a rush to judgment.

Murtha’s argument has the very real advantage of being the truth.

It’s astonishing, and it’s scary,” he [Murtha] said, pointing to the officer. ‘This man’s life actually is in the hands of myself and soon to be your hands, and the state is asking you to make a judgment and decision based on speculation.

Note The Times Final shot at Porter:

Officer William G. Porter credit: abc2news.com

Officer William G. Porter
credit: abc2news.com

Officer Porter curtly shook the hand of Ms. Bledsoe before joining a group of trial spectators, including his mother, and rubbing his eyes. As he walked out of the courtroom alongside a sheriff’s deputy, Officer Porter said, ‘I’m just hanging out.

It would be interesting, and I suspect, revealing, to learn the actual context of that comment. Later in the day, The Washington Post added more detail, and actually added more of the Defense closing, perhaps as a function of the much longer article. The tone was still very much in favor of the Prosecution.

The Baltimore Sun, in a later article, was true to the tenor of its coverage of the case:

Chief Deputy State’s Attorney Michael Schatzow in closing arguments accused Porter of lying about his account and suggested a ‘coverup.

This “coverup” apparently related to Porter’s inability to identify–during his initial interview–every officer that might have been in the area during Gray’s arrest. The lies to which Schatzow referred appear to be based almost entirely on Det. Teel’s recollection that Porter said Gray claimed he couldn’t breath at the fourth stop, and Porter’s recollection that he never said that and only heard Gray saying that when he was initially arrested. No evidence was ever introduced to suggest that was anything more than a difference in recollection, certainly not a lie.

The state’s case leans heavily on testimony from one of the police investigators, Det. Syreeta Teel, who said Porter told her that Gray complained that he could not breathe. The comment came in an unrecorded, informal phone conversation days after Gray was hurt, and Porter contends that Teel misunderstood him.

When Porter came in days later to give a formal taped statement that lasted an hour, he did not repeat the comment and was not pressed by investigators. Teel ‘did not waver’ in her account of the phone conversation, however, Bledsoe said.

That comment, along with the medical examiner’s determination that Gray was injured early in the arrest van’s journey, have been put forward by the state that Porter’s failure to quickly summon a medic for Gray cost him his life. Schatzow said that Porter showed a ‘callous indifference to human life.

The Sun managed this bit of reasonably balanced reporting:

The charges against Porter put a rare question to the jury of when a police officer’s failure to act rises to a crime.

Porter’s lawyers have said in court that they cannot find any other case in the country where not putting someone in a seat belt was determined to be manslaughter. Legal experts also say it’s difficult to find criminal cases against police officers accused of inaction.

As I’ve previously written, it is these facts, and the vehemence with which Bledsoe and Schatzow have attacked Porter in this trial, that have surely convinced every Baltimore officer that they cannot trust the prosecutors, and that they could find themselves being prosecuted for the reasonable exercise of professional discretion. Should the Prosecution win even a single count, they will be, like all true believers, unable to recognize it as a Pyrrhic victory. As “A Maryland Attorney”–who is indeed a Baltimore area lawyer–succinctly noted in his comment in Update 26.4:

Officers are fleeing Baltimore City, either by retiring or transferring to other departments (if they can)

–The elected States Attorney is considered a joke within the legal community. She has little experience, an amazing attitude, and clearly interested in ‘serving’ only one segment of her constituency!

One thing that has been missing from all reporting on this case, are the facts that virtually all public transportation–busses, school busses, trains, etc.–have no seat belts. Also, even if Porter had used a seatbelt on Gray, Gray–and virtually every other arrestee–could easily have unbuckled himself at will. These seat belts are not locking; they can’t be for obvious safety reasons. I can’t imagine Porter’s attorneys, sharp lawyers both, could have missed these obvious and important points. I can imagine why the media would not want to report on such things.

Here are examples of some of the coverage of the Defense argument, from the various media outlets. In every article, far more words and inferences were devoted to the Prosecution argument than that of the Defense.

In defense attorney Joseph Murtha’s closing argument, he called Gray’s death a ‘horrific tragedy,’ but not one for which his client is responsible. He alleged that prosecutors had ‘preyed upon the fears’ jurors might have regarding the case.

Which is exactly what the Prosecution did.

Defense attorneys have argued that Porter was a conscientious officer who acted reasonably given what he knew at the time. They asserted that Gray showed no obvious signs of injury and did not articulate any specific problems. Despite that, his attorneys said, Porter twice asked if he needed a medic and told other officers Gray should go to the hospital. Several officers testified that arrestees were rarely — if ever — buckled into police vans.

‘I understand that there’s this need to find somebody responsible, to hold somebody accountable for the death of Freddie Gray. That is a natural human reaction. But we sit and stand within the walls of a courtroom,’ Murtha said, adding later that there was ‘an absence — an absolute absence — from any testimony from a state’s witness that Officer Porter acted in an unreasonable manner.’

Murtha reminded jurors that his client must be presumed innocent.

‘The absence of real evidence raises much more than a reasonable doubt,’ he said, focusing much of his time on attacking the state’s ‘star witness’ — Carol Allan, the medical examiner — who Murtha alleged had ‘made a rush to judgment’ when she determined the timing of Gray’s injury.

These are important, telling points:

Murtha also reminded jurors that his client must be presumed innocent.

‘The absence of real evidence,’ he said, ‘raises much more than a reasonable doubt.’

‘You’re making a legal decision — not a moral, not a philosophical — a legal decision,’ he said. ‘You set aside the sympathies, you set aside the passions, you look at the cold, hard facts that aren’t there in this case.

This is eloquent evidence of the backward nature of this case. It is usually the Defense the accuses Prosecution witnesses of lying, the Defense that ignores the facts and evidence, and relies instead on inflaming the Jury’s passions, on trying to get them to emotionally decide the case. Just as the Prosecution in the George Zimmerman case continually accused Zimmerman, who did not testify, of lying, but produced no evidence to prove that assertion, so too is the Prosecution in this case.

Jury Instructions:

Earlier, Williams instructed jurors on how to deal with the charges beyond involuntary manslaughter.

To find Porter guilty of assault, Williams said, the jury will have to find that Porter was aware he was putting Gray ‘in a high degree of risk’ with his behavior and again was ‘grossly negligent.’

To find Porter guilty of misconduct in office, Williams explained, they must find that he failed to do something required by the duties of his office, not as an honest mistake but as ‘a willful act, with an evil motive and in bad faith.’

Finally, to find Porter guilty of reckless endangerment, they would have to agree that ‘a reasonable officer … would not have engaged in that conduct.’

The jury should not judge his conduct from the perspective of a civilian, Williams said, but from that of ‘a reasonable police officer in a similar situation.’

The jury can consider police policies and general orders as factors in their decision-making, he said, but merely violating those orders is not enough to make Porter guilty of a crime.

It appears, at least from this reporting, that Williams is playing it straight, if for no reason other than trying to avoid being overturned on appeal.

A Review Of The Charges:

Involuntary manslaughter: The killing of another unintentionally while doing an unlawful act (not a felony), a negligent act or by negligently failing to perform a legal duty. Maximum 10-year sentence.

Assault, second-degree: If you touch someone else in an unwanted manner that could be perceived as unwanted, offensive or potentially harmful (whether or not it causes injury), you could be charged with this offense. Maximum 10-year sentence.

Misconduct in office: Corrupt behavior by an officer in the exercise of the duties of his or her office or while acting under color of office. This definition is also found in case law, and there are no statutory penalties prescribed in Maryland for this offense. Penalty up to the judge.

Reckless endangerment: Engage in conduct that creates a substantial risk of death or serious physical injury to another. Maximum five-year sentence.

Final Thoughts:

The interviews Porter willingly gave to Det. Teel and other BPD officers were done in part because he didn’t believe he had anything to hide, but also because he was told, repeatedly, that he was a witness, not a suspect. This touches on a danger faced by police officers not faced by the general public.

A citizen facing criminal charges can invoke his Fifth Amendment right and suffer nothing for it. The fact of his refusal to speak with the police cannot so much as be suggested at trial. A police officer enjoys the same right, but refusal to cooperate with an investigation can, and often does, result in discipline, including termination, and even revocation of one’s certification as a police officer, essentially making one unemployable in that career anywhere.

In this case, the Defense argued that Porter’s statements should not be allowed, obviously trying to defend the principle. It’s one thing to be told you’re only a witness, but suddenly find the statement you gave used against you in a criminal trial. Porter’s statements obviously were not harmful to him at trial. Judge Williams allowed the statements. In case of an appeal, this too will be a potentially powerful argument for reversal.

William G. Porter, unlike most defendants, appears to be just as the Defense has portrayed him: a young, decent, dedicated police officer, doing the job because he wants to serve, wants to make a difference, and wants to make sure people get a fair shake.

Now we wait. In a sane world, acquittal on any of these charges should be acquittal on all. In Baltimore these days, who knows? Will the jury acquit on the three most significant charges and convict on the least punitive as a means of coming to some agreement?

I believe, based on what I know, that there is no way a sane jury could convict on any of these charges. Not only was there no evidence to prove the Prosecution’s case beyond a reasonable doubt, the Defense witnesses, including Porter, were far more believable and credible than any Prosecution witness, and in large part because their testimony was entirely supported by the evidence. This reduced the Prosecution, rather than citing a litany of irrefutable, factual evidence, to waving a bloody seat belt in front of the jury.

More as early as tomorrow.

NOTE: You’d always be well served by visiting Andrew Branca’s posts on this case at Legal Insurrection.  We tend to come to pretty much the same conclusions, but complement each other.

Advertisements