William Porter and his attorneys. credit: reuters

William Porter and his attorneys. credit: reuters

Someone–apparently one of the jurors–has finally talked, though Judge Williams has no power to compel their silence, and we now know, assuming the information is accurate, how the jury voted on the four charges filed against Baltimore Police Officer William Porter. According to The Baltimore Sun: 

In addition to the final 11-1 split in favor of acquittal on involuntary manslaughter, sources said the jury split the following ways:

They voted 8-2 in favor of acquittal on second-degree assault, with two jurors remaining undecided.

On reckless endangerment, the jury split 7-3 in favor of conviction, with two jurors undecided.

On misconduct in office, the jury split 10-1 in favor of conviction, with one juror undecided, sources said.

‘This was the vote that was on the board when the jury conceded to deadlock,’ the juror said. ‘Had we continued discussions, there’s great likelihood that the numbers could have switched, but I couldn’t say which way.’

Members of the panel had changed their votes multiple times during the deliberations, the juror said. For example, a few more jurors wanted to convict Porter of manslaughter at the start of the deliberations but later changed their minds, the juror said.

In Update 26.8, I wrote:

The most likely situation was the majority, perhaps all but one, ready to acquit on all charges–we do know that the deadlock was on all charges–and one or two stubborn holdouts for conviction. That the issue was every charge suggests this. It’s hard, given the overwhelming lack of evidence for proof beyond a reasonable doubt, to imagine the opposite situation, but stranger things have happened, and this is mere speculation on my part.

It appears my speculation was reasonably accurate, but there is no gloating to be had in this situation. More on that shortly.

In order to find Porter guilty of manslaughter, Williams told the jurors they would have to find Porter acted in a “grossly negligent manner’ and that his conduct was a ‘gross departure’ from what a ‘reasonable police officer’ would do in a similar situation.

Williams said the charge of misconduct in office would require a finding that Porter had ‘corruptly failed to do an act required by his duties,’ and that it was ‘not a mere error in judgment’ but involved an ‘evil motive and bad faith.’

‘You must apply the law as I describe it,’ Williams told the jurors. He also told them they ‘should not be swayed by sympathy, prejudice or public opinion,’ and should consider each other’s opinions but not ‘surrender’ their own ‘honest opinion.

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Obviously, Porter–and the other officers–was hit with many charges, from misdemeanor to felony, because the Prosecution at least suspected it would never get felony convictions. The evidence is simply not there. However, in the racially charged Baltimore atmosphere, they must have reasoned that they just might get a jury to buy a compromise conviction, something to send a political message. After all, Freddie Gray died, so somebody ought to be convicted of something, right? Doesn’t matter if it was an accident caused by Gray himself, what matters is social justice!

They nearly got Porter on Misconduct in Office, but where is the “evil motive and bad faith?” There was no evidence whatever to support that idea, and the Prosecution had the opportunity to cross-examine Porter, a rarity in and of itself. In fact, one police witness testified that Ported did more than a reasonable officer should have done to look out for Gray. What reason, other than advocating for social justice, could the jury have for the 10/1/undecided split on that charge?  The prosecution didn’t prove a single element of that offense.

Perhaps some of the jury didn’t much like the police, perhaps they thought someone should pay something because Gray died (they are apparently forgetting they’ll be paying higher taxes for that for a long time). However, based on the testimony available in the public sphere, there was no evidence to sustain a single charge. In this, if nothing else, one might reasonably trust the reporting of the media, because they were determined to publish the evidence most damaging to Porter and most supportive of the social justice narrative.

What lessons should we take from this?

The way in which juries split on individual charges, as well as the specific issues that divided them, can affect subsequent decisions by prosecutors and defense attorneys — including whether to retry a defendant, drop the charges, or offer or accept a plea deal, experts said.

Jurors often begin deliberations with an initial vote. Paula Hannaford-Agor, director of the Center for Juries Studies, said that vote can be more instructive than the final tally. She said the initial size of the ‘minority faction’ of jurors — those voting against the majority position — is more predictive of whether a subsequent jury might also hang, according to her research.

A larger minority faction in the initial vote is harder to overcome to reach a unanimous decision.

‘If you’ve just got one or two people who are initially holding out, they are much more likely to capitulate,’ she said.

Still more useful would be information about the most heavily-disputed theories in the case, and those issues the jurors agreed on, Hannaford-Agor said.

‘What are the competing arguments that are being made in the jury room? What seemed to resonate with people? What gave people pause?’ she said.

Based on this theorizing–And Hannaford-Agor is generally correct–no sane prosecutor should re-try Porter. At best, they might be able to convict him, at great expense, on the lowest misdemeanor count, and even that would almost certainly be subject to being overturned on appeal, so voluminous is the trial record of reversible error committed by Judge Williams. But that’s not the lesson everyone takes:

Gerard P. Martin, a veteran defense attorney and former federal prosecutor who is not involved in the cases, said prosecutors must be heartened by the fact that the jury was leaning toward conviction on the lesser charges. He said he doesn’t believe prosecutors will be deterred by the final vote because they likely understood that securing a manslaughter conviction would be difficult.

Prosecutors could amend the charges but have given no sign that is their intention. Martin said the defense should see more reasons for optimism.

‘All they need is one to say ‘no,’ he said. ‘I would hang in there if I were the defense lawyer.

“…the jury was leaning toward conviction on the lesser charges”? Really?! It was 11-1, 8-2 (two undecided) and 7-3 (two undecided) for acquittal, and Martin believes that an encouraging sign for prosecutors?

Final Thoughts:

I noted earlier there was no gloating to be had in that my initial guess was at least partially accurate. It was based on experience and what appears to be a more or less accurate analysis of the Baltimore criminal justice system. However, I take no comfort in it because juries can be incredibly fickle and render verdicts seemingly uninfluenced by evidence–or a lack thereof. Had the jurors convinced, or merely worn down, the two holdouts, there would have been a misdemeanor conviction, the Prosecution would have declared victory, and would have been in another legal mess of their own making.

If they decided to retry Porter on the three more serious charges, they obviously could not force him to testify in any other cases, though that probably would not stop them from asking Judge Williams to order it, nor would it stop Williams from helping the Prosecution. But there still remains the issue of Porter’s legal jeopardy via the federal DOJ, which is still investigating and has not announced whether it will or will not charge any of the officers. And if Porter appealed that misdemeanor conviction, that would preclude the Prosecution from mandating his testimony, which puts the Prosecutors back at square one yet again.

There is little or no chance the Prosecution in this case will drop charges on anyone. They’re in it to the bitter end, regardless of the law and the evidence.  Whatever revenge they can enact on any of the officers, even if it is a single misdemeanor, will be touted as total vindication of their efforts.

This case has already descended to farce, but there is more to come:

The prosecution’s obvious hope to speed through all the cases in a January to March blitzkrieg, easily convicting every officer of every charge in a breathtaking display of prosecutorial brilliance, has blown up, in their faces. Every set back, every motion, has the potential to further delay, even completely derail every following case.

Waiting for a ruling on a permanent injunction to keep Officer Porter from being forced to violate his Fifth Amendment rights will push all of the trials back to March, and likely, longer.

And if, as seems likely, Porter will not be forced to testify, and if the Prosecution is telling the truth and they have no case against Officer Goodson and Sgt. White without Porter’s testimony, what then? Ethical prosecutors would drop the charges against those officers, but then again, ethical prosecutors wouldn’t have filed any charges in the first place.

Judging by the evidence presented in the Porter trial, which appears to be all of the evidence the prosecution has relating to the essential facts of the case, all Porter can add in any trial is what he told other officers and when, and that information is not remotely going to provide a dramatic, smoking gun moment that will compel a jury to convict in any trial.  If the officers had no reasonable grounds to think Gray truly in medical distress, they had no reason to immediately race him to a hospital, and the most effective, experienced and capable witness, Dr. Vincent DiMaio testified that Gray’s injury occurred between the 5th stop and the 6th, at the jail.  In other words, none of the officers could have seen Gray in genuine medical distress because his injury didn’t occur until after the last time they checked on him on the street before he was found injured at the jail.

One might argue that the hung jury was evidence that the officers can get a fair trial in Baltimore. However, one might better argue that a hung jury is the most they could possibly expect, and that outcome, and split of the jury, demonstrates it is impossible for them to be acquitted on the evidence and the law. That being the case, what more compelling argument for a change of venue is there?

What really happened? I suspect the jurors were honest enough, with one exception, to understand that the evidence just wasn’t present for the most serious charges. However, on the least serious charges, emotion, and perhaps even unspoken hopes for racial solidarity and appeasement, won out. Social justice, after all, must be ultimately satisfied in Baltimore. It was that to which the prosecution appealed in its closing, calling Officer Porter a liar without producing any evidence of lying, and trying to inflame the jury’s passions for social justice.

Officer Porter can take hope that there was at least one man or woman willing to stand for the rule of law against the social justice tide. That is, sadly, a very slim reed upon which to hang the stability of a city, the effectiveness of its police department and a system of justice.