Officer William Porter

Officer William Porter

It’s interesting indeed to see how reliable Progressive media outlets see the mistrial of BPD Officer William Porter. This, from The Atlantic, is the first of two I’ll be analyzing. The second, which I’ll post after Christmas, will be an analysis of an editorial in The Baltimore Sun.

This article was written by David A Graham. It could easily have been titled: “Porter Mistrial! Activists, Prosecutors Hardest Hit!”

The trial of officers charged with killing Freddie Gray has moved quickly all along: The prosecutor brought charges with nearly unprecedented speed, within two weeks of Gray’s death. And now the first trial has ended just as quickly, with a judge declaring a mistrial because of a hung jury, following only three days of deliberation.

It’s a stunning result all around. [skip]

The result is a serious blow to activists who’d hoped the trial would pave the way for new accountability for police, and it’s a huge blow for prosecutors. Still, the result could have been much worse, and some observers of the trial expected Porter to be found not guilty.

Notice that Graham, and one presumes, every Progressive/Social Justice Warrior (SJW), believes that the only “just” outcome would be a guilty verdict. The point is not the rule of law, but paving the way for “new accountability for police,” in whatever form that might take. Readers of The Atlantic are no doubt supposed to be aghast at the idea that “some observers… expected Porter to be found not guilty.” No doubt such observers, and I count myself among them, expected it because there is no evidence to convict Porter beyond a reasonable doubt. One must always remember that in such cases, people like Graham are never speaking about upholding the rule of law and equal justice for all, but social justice, which is about political advantage and the advancement of progressive goals.  With social justice, some animals are always more equal than others.

Graham outlines four primary issues, but the next paragraph is a virtual encyclopedia of progressive assumptions:

It isn’t enough to have officers on the beat, in the neighborhood.

It’s common to hear that many of America’s policing problems could be solved if there were more police out on the beat, in neighborhoods, getting to know people. The first Porter trial, and the Gray case in general, show the shortcomings of that theory. Start with the precipitating incident: Police spotted Gray and vice versa on April 12, and both he and the officers knew each other, setting the stage for mutual suspicion. When Gray ran, the officers gave chase; it’s still unclear whether there was any valid reason for his arrest, though Mosby says there was not.

What a straw man. No one argues that merely putting bodies on the street will solve every problem. Graham makes scant reference to the idea of “community policing,” which is basically an emphasis on police officers getting to know the neighborhoods they patrol well, and working more closely with residents. There was no “mutual suspicion” involved. Freddie Gray was a petty drug dealer and user, high on pot and dulled by opiates when he saw the officers. His own guilty conscience, or perhaps the possibility that he was contemplating dealing when he saw the officers, caused him to run. Either Graham knows little about criminal justice issues or is ignoring Terry v. Ohio, the Supreme Court decision that gave the officers all the cause they needed to catch and detain Gray, to say nothing of the illegal knife that gave them probable cause for arrest.

One might infer that Mosby was wrong by the fact that after making an initial fuss about the officer’s stop and arrest, and the knife, the prosecution said nothing at all about those issues during Porter’s trial. If the officer’s actions were truly illegal, all that followed was improper as well. One night think the prosecution would deign this worthy of mention at trial–if any of it were true.

Race is important, but it’s complicated.

And who, pray tell, is making it complicated?

credit: Annie Lebowitz for Vogue

credit: Annie Lebowitz for Vogue

The Gray case comes amid a long string of examples of police violence against people of color, but it always complicated the simple narratives. In Baltimore, people of color had a long list of grievances against the police department, and there was a litany of evidence of how police mistreated black citizens. But it wasn’t just black versus white. Baltimore’s mayor and its then-police chief are black, as is Marilyn Mosby, the state’s attorney in charge of the prosecuting the case. Although Baltimore’s police department is still whiter than its population, it scores better than many big-city departments, and three of the six officers charged in Gray’s death—including Porter—are black.

Jury selection in a case like this is especially fraught in a city like Baltimore, where so many members of the jury pool are likely to have come into some contact with the criminal-justice system, whether as victim, suspect, or convict. Half of the 75 potential jurors in this case fell into one of those categories. The jury ultimately included seven African Americans and five whites.

For the operators of the black grievance industry, keeping people at each other’s throats is their reason for being. Graham writes as though there is no question that the Baltimore police department, and by extension, all police officers everywhere, are racists, and that any use of force against black people is by its very nature “police violence against people of color.” He provides no examples of such “violence.” He also appears to presume that everyone sees life through a racial prism.

Remember that in the Freddie Gray case, several black people complained that Gray was abused when arrested, which caused Sgt. White–a black woman–routinely to check on Gray, throwing her into the racialist meat grinder in this case. There is no evidence whatever that Gray was in any way abused during his arrest–or thereafter–and even the Prosecution has made no such claim, yet this is doubtless representative of the kind of “a long string of examples” of police violence about which Graham speaks.

Screen-Shot-2015-04-25-at-9.59.38-PM-600x291

Until the Age of Obama, race was a non-issue for most Americans. They were comfortable with that, and proud of it. It’s partly why they elected Barack Obama. The Civil Rights Movement, thankfully, won. Actual racists are few and far between. People of good will rightly treat them as social pariahs. But Mr. Obama and the Democrat Party found keeping blacks in a perpetual state of paranoia and outrage politically useful, and the Freddie Gray case, like the Trayvon Martin case before it, was merely a useful club with which to beat one’s political enemies and keep the Democrat base aroused.

Even though the complaint of black Baltimoreans was with the police as an institution—regardless of whether individual officers were black or white—the racial dynamic in the courtroom caused some discomfort anyway. Unless and until jurors begin speaking out, there’s no way to know how race affected their deliberations, but NPR’s Jennifer Ludden reported on the unease over the weekend:

An African American studies professor was sitting in on some of the testimony this past week. And he said he had really mixed emotions. He was glad the state had brought charges to hold police accountable, but at the same time, he told us he was uncomfortable watching white prosecutors basically trying to discredit a black police officer.

Again, notice the complete focus on race, and the total ignorance of the evidence. Why should a black professor be the slightest upset at prosecutors trying to discredit a black police officer, or an officer of any race of gender, if that officer were actually criminally liable and there was sufficient evidence to prove it beyond a reasonable doubt? Any “problem” with race rests uncomfortably on the consciences of Graham, the unnamed “African American studies professor,” and those like them that refuse to accept the rule of law.

It’s still very hard to prosecute police officers.

Very little is known about police violence; the FBI just announced a plan to track it, but that won’t start until 2017. But there are reliable statistics on two things: Officers are seldom charged when suspects are killed, and when they are charged, they are seldom convicted. One gauge of the success of the police-reform movement underway in this country is whether those numbers shift over time. On a case-by-case basis, any individual case is likely to fail, as it did in Porter’s trial. In an ironic twist, Judge Williams himself is a former prosecutor who tried a high-profile police-brutality case and was twice confounded by hung juries.

A substantial part of the problem is that the public knows little about the law relating to the use of force, and the moment an officer must use force to subdue a resisting criminal, people cry “police violence.” Notice that Graham believes that the “police-reform movement” will be successful only when officers accused in the deaths of suspects are increasingly convicted, apparently regardless of the evidence. He laments the fact that most are not convicted in such cases, but obviously doesn’t understand why, or chooses to ignore it. He assumes that police officers charged in such cases should be convicted and if they are not, it is prima facie evidence that “reform” is necessary.

Oh yes: what a shame for poor Judge Williams.  Those darned juries just aren’t always willing to convict without evidence beyond a reasonable doubt, confound it!

Prosecutors are wary of charging officers, because they rely on police to gather evidence and build cases. Juries, even in cities like Baltimore where the grievances against police are clear, are reluctant to find cops guilty unless a case is black-and-white. The jury in the Porter trial forced an especially difficult challenge; the central question of what happened to Gray remains largely unanswered.

Graham misses the point. Prosecutors are rightly “wary of charging officers” if there is insufficient evidence to charge them, and because the police generally deserve the benefit of the doubt because of the very nature of the tasks society demands of them. Again, Graham begs the question, assuming that every accusation against Baltimore police must be true. His comment about juries is particularly revealing. “Black-and-white?” Well yes. The rule of law requires that suspects–even police officers–be presumed innocent until proved guilty beyond a reasonable doubt. Social justice, on the other hand, is entirely black-and-white, in every way. If a black person makes an accusation, or if they die during an arrest, the police are guilty. The evidence doesn’t matter, in fact, it’s an impediment to social justice accomplishments.

The fact that we can’t be absolutely certain how Gray was injured is a matter of reasonable doubt, not obvious guilt.  Remember: the defendant is presumed innocent. But the cause is not “largely unanswered.  He broke his neck while alone in that section of the vehicle between the 5th and final stops.

Prosecutors focused on Porter’s failure to seatbelt Gray in a police van, but Porter didn’t dispute that. He just argued it was standard practice, even if it did breach departmental policy. Jurors may have been unwilling to convict Porter alone for the sins of the department at large.

Porters argument has the very great advantage of being the truth. Policy is not holy writ, nor is it law, and is often reasonably ignored because it’s impossible, even dangerous, to follow. Graham’s turn of a phrase again reveals a great deal he probably didn’t intend to reveal. Does he really want juries to convict people for the sins–real or imagined–of larger groups to which they might belong? Do we convict every insurance agent because many people dislike insurance companies? Do we convict every Doctor because some people dislike doctors? Do we convict every police officer because the police are supposedly in need of “reform?” That’s a perfect social justice outcome, but how does it comport with the rule of law?

Prosecutors MIchael Schatzow (umbrella) and Janice Bledsoe (red scarf)

Prosecutors Michael Schatzow (umbrella) and Janice Bledsoe (red scarf)

The prosecutors may have miscalculated.

As soon as Mosby announced her set of charges, there were serious questions raised about them. First, she had brought them very, very quickly. Critics complained she’d done so under pressure, hoping to assuage protestors; she said her office had been investigating since Gray’s injury, nearly a week before his death. Second, many observers felt that Mosby had overcharged, bringing a stronger set of charges than she could really prove. (That’s hardly unusual for prosecutors.) [skip]

But whatever advantages Porter’s testimony might have given them in a future trial, he proved impossible to convict—at least on the first try.

As I’ve often written, no competent, ethical prosecutor would have brought any charges against these officers. Even Mosby’s pet medical examiner ruled Gray’s death an accident until Mosby convinced her of the wisdom of climbing on the social justice bandwagon.

Again, Graham demonstrates his ignorance of the criminal justice system. Charging anyone with any crime the prosecution knows it cannot prove is unethical, an abuse of power, and a betrayal of the rule of law. Prosecutors sometimes “overcharge,” charge more offenses then they intend to have to prove, but offenses they can prove if necessary. This is often done to encourage defendants to accept a plea bargain. This may not be usual in a given local criminal justice system, but as long as each charge is actually provable, it is legitimate. What happened in the Freddie Gray case is the prosecution made charges any competent, ethical prosecutor must have known they could not possibly prove. That’s never legitimate, anywhere.

But hey, not to worry! We’ll just keep trying Porter until we find the “right”, socially just, jury!  That’s why it’s so important to keep the trials in Baltimore.  It’s much more likely a jury willing to ignore the evidence and do the right thing will come along.

But they have said they intend to retry the case. As more information emerges over the next hours or days, it may become easier to gauge the likelihood of their success. Was the jury hung 11-1 in favor of acquitting? If so, prosecutors may not even bother. Or did 11 jurors want to convict, while one steadfastly refused? If so, Porter might still be in deep trouble. The answer will have important implications for the rest of the prosecution’s strategy and hopes for convicting the other five officers—including Caesar Goodson, who faces a charge of depraved-heart murder. That answer will also have important implications for the city of Baltimore, and for the police-reform movement around the nation.

Ah yes, the hopes of SJWs everywhere of convicting the officers regardless of the evidence. How noble. Graham is blissfully unaware of the irony inherent in mentioning the “depraved heart murder” charge lodged against Goodson. That is the single, most obviously unethical and abusive prosecutorial overreach in this case.

Graham, like all SJWs, also ignores the “implications for the city of Baltimore.” The rampant crime and chaos throughout Baltimore since the Gray riots is the most glaringly obvious “implication” of prosecuting innocent officers in the name of “police-reform.” Regardless of the outcome of the trials, Graham’s “hopes” have already done enormous damage to the ability and willingness of our nation’s police to effectively do their jobs. In the near future, citizens of Baltimore may wish they elected a prosecutor more interested in the rule of law and equal justice for all rather than in boosting her social justice credentials.

Obviously, police officers that knowingly break the law should, with some exceptions, be prosecuted. Ethical prosecutors, by applying the law, know when to do that. Marilyn Mosby does not, and people like Graham only encourage people like her, to the detriment of the very people they claim to champion. Perhaps they really believe they serve the public good. More’s the pity.

The SMM Freddie Gray case archive is available here.

UPDATE, 12-22-15, 2110 CST: A number of readers have been wondering whether William Porter can be compelled to testify in upcoming trials. This is an issue that has become even more interesting when one considers his re-trial has been set for June 13, 2016. Absent mistrials and do-overs, the trials of the remaining officers will be over long before his retrial.

In brief, no, he can’t be compelled, absent grants of immunity. It’s the pesky, outmoded, racist 5th Amendment standing in the way of social justice once again! For a more in-depth exposition of this issue, visit Andrew Branca’s post at Legal Insurrection. 

There are a few other items of interest as well. Officer Goodson is the next to be tried, and following him, Sgt. White. It is noteworthy the first three officers to be tried–Porter, Goodson and White, are black, and the remaining officers–Officer Miller (trial set for 02-09-16), Officer Nero (02-22-16), and Lt. Rice (03-09-16)–are white. Normally, I wouldn’t comment on this, but considering the Prosecution, and political motivation of this case, race is surely a factor in this, as it is in every other related, decision.

Did Mosby think it would be easier to convict three black officers when public rage and interest in the case were most intense, and that once they were safely convicted, it would be no effort at all to convict three white guys? If Mosby thought it most important to try the black officers first, people who had no active hand at all in the arrest of Gray, what does that say about the supposed illegitimacy of the arrest? There’s no doubt the three white officers didn’t injure Gray. The Prosecution’s entire case against Porter was built in large part on that assertion. What’s left?

And as I’ve said over and over, even if the Prosecution could get a willing and unscrupulous judge to compel Porter’s testimony, we’ve heard all of it. He has nothing to say that is any more dangerous to Goodson than it was to Porter.

I have a feeling this case isn’t yet nearly as backward as it is going to become.

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