Baltimore-OfficersLet us, at the outset, clear up what some in the media seem to think a telling prosecution point. I refer to testimony by Officer Porter that he told Officer Goodson that Freddie Gray should be taken to the hospital, to which Goodson–according to Porter–replied “sure.” The Narrative would have us believe this is evidence that Goodson and Porter believed Gray was in immediate medical distress, and that when Goodson did not immediately take Gray to the hospital, he demonstrated a “depraved heart,” thus the prosecution has proved all it needs to convict him of murder. Nonsense.

Most media sources leave out the accompanying testimony that Porter made that suggestion only because they both knew the booking facility wouldn’t accept Gray because he was faking medical problems, and they’d demand he be checked by a doctor, not because anyone thought he needed it, but because when a prisoner persists in faking medical problems, it’s procedure to have them checked out, just to cover everyone’s posteriors. This proves only that Goodson and Porter were following common, daily procedure, nothing more.

At the end of the fourth day of prosecution testimony, the prosecution has yet to prove, beyond a reasonable doubt, any element of any offense charged, though it has yet to rest its case.

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Of significant interest is video of Goodson’s driving while Freddie Gray was in the van. I have seen a brief excerpt of a surveillance video purporting to show the van running a stop sign and crossing the centerline. Provided by regular reader nivico, it is in the comments of Update 35.2.  Not only is it impossible to positively identify the van, it is impossible to determine if it ran a stop sign, which is out of sight at the right side of the frame, and if it did cross the center line–that’s equally unclear–it did only with its left front tire, while swerving to avoid a vehicle parked very near the corner. There was no oncoming traffic. There is, as Boyd testified, no evidence whatever of a rough ride. A clip–perhaps this one–was played in court, and it appears that may be the sum of the prosecution’s video evidence, as even The Baltimore Sun’s description of it matches my factual observation.

Prosecutors did not ask Boyd [BPD Detective] to describe the manner in which Goodson was driving the van.

Gee, I wonder why not? Isn’t that a rather important part of their case?

On Tuesday, Goodson’s attorney did.

Attorney Matthew Fraling asked Boyd whether he saw any evidence that Goodson made an abrupt stop, start or turn while Gray was in the van.

‘No, sir,’ Boyd said.

Ah. That explains it. Rather hard to make depraved heart murder out of that. This, from The Sun, is a masterpiece of understatement:

But over four days of testimony from 19 witnesses, prosecutors have presented little other evidence to support the theory.

Translation: “no other evidence to support the theory.” Notice the significant differences in coverage of the same testimony by local channel WBALTV: 

Surveillance video shows Goodson outside the van with the other five officers charged in connection to Gray’s death. The video shows the van approaching the stop on North Avenue, but it does not appear to be speeding.

Prosecutors contend CCTV video shows the rough ride Goodson gave Gray, which they said caused his fatal injuries.

But under cross-examination, Boyd said he has reviewed all the video and sees ‘no evidence of the van making an abrupt stop, start or turn.’

Boyd testified that he has cited people before for reckless endangerment and negligent driving, but did not see any of that in the video.

‘It may be that we don’t see that smoking gun in terms of evidence regarding the rough ride. That doesn’t mean we are not going to have other evidence offered, but we are still waiting,’ said University of Baltimore Law School Professor David Jaros.

A common police transport van configuration. credit:

A common police transport van configuration.

Several of the prosecution’s witnesses seem to be in the belaboring the obvious category. Three forensic technicians testified that samples of Gray’s blood and DNA were found on the wall, seat and a seat belt–likely the blood stained seat belt dramatically waved by the Prosecution in earlier trials–of the van. No one has denied that Gray was in the van, so such testimony is irrelevant and does nothing to prove the Prosecution’s case. This, returning to The Sun, is interesting as well:

Prosecutors then called Det. Edward Bailey, a compliance and inspections officer who conducted audits in April and September 2014 to determine whether police officers had secured detainees in the back of their vans with seat belts.

The actual audits and their findings — revealed in a previous trial to show broad compliance — were not entered into evidence. Deputy State’s Attorney Janice Bledsoe attempted to submit the reports, but Williams sustained a defense objection to the submission. He did not explain his decision.

This decision might indicate that Judge Williams finds such information irrelevant, as it clearly is. It may also demonstrate his belief that the prosecution is throwing everything possible at the judicial wall in the hope something will stick. Considering the political climate, one could reasonable expect most officers to say exactly what the climate demanded even though anyone that understands police work understands that few, if any, officers ever use seat belts, particularly in transport vans. This too is interesting:

After Bailey, the state called Stacey Lyles-Foster, the acting warden of the Central Booking and Intake Facility in Baltimore. She testified that detainees brought to the facility by police van are given quick medical assessments, and rejected if medical personnel there do not believe the detainee would be able to ‘withstand’ the 24-hour booking process before receiving care.

She testified that 612 detainees were rejected in 2014, of 42,852 brought to the facility. In 2015, she said, 619 of 32,782 individuals were rejected.

On cross-examination, Lyles-Foster said Gray had been rejected at the facility for medical reasons in December 2014. She said medical personnel believed he was having a possible overdose.

Goodson’s attorney, Andrew Graham, asked her if they believed that because Gray had told them he was having an overdose; Lyles-Foster said she did not know.

Of course she didn’t. This testimony also established that Gray has a history, fo which the police were aware, of serious drug abuse. Keep in mind too, gentle readers, Lyles-Foster’s statistics are misleading. Far more than 612 and 619 prisoners complained of medical problems, but a great many, by the time they made it to booking, realized that wasn’t going to help them, it would be faster if they just went through the normal booking process, and gave up on it. Many prisoners who complain of medical problems give up after officers call them on it, before, or while, being transported. The numbers Lyles-Foster presents represent people that were either so good at faking–and some criminals have a great deal of experience and practice–booking personnel couldn’t take the risk, or people that actually had medical problems.

Normally, defense witnesses do not testify until the prosecution has rested its case. There is something The Sun is leaving out:

All of the prosecution witnesses Tuesday came before a midday break.

Upon return to the courtroom, Williams announced the defense would call one of its witnesses: Dr. Jonathan Arden, a former medical examiner in Washington and now a consultant in forensic pathology.

Williams did not explain why the defense would begin presenting witnesses before the prosecution had rested its case.

Arden testified that he did not agree with the finding of assistant medical examiner Dr. Carol Allan that Gray’s death was a homicide.

Even under the prosecution’s understanding of the facts, Arden said, he did not believe Gray was injured until the final leg of the van transport — after Goodson and other officers had checked on him multiple times.

Arden said Gray’s injuries would have caused immediate paralysis to his lower extremities and “at best” significant impairment to his higher extremities.

Gray would have had a ‘very difficult time breathing, much less talking,’ he said.

It remains to be seen if the Defense intends to call Dr. Di Maio in support during its case. However, Dr. Arden’s testimony fits the facts; Dr. Allen’s–the Baltimore Medical Examiner–fit the Narrative.

The defense also called Joel Winer, a neurosurgery expert who testified that Gray’s injury ‘isn’t something that occurs through evolution,’ but would have been immediate — leaving Gray ‘floppy like a dish rag or a jellyfish’ and unable to sit up, as Porter has testified he did at the fourth and fifth stops.

Having one’s spinal cord virtually severed tends to do that sort of thing.

Allan and the prosecution allege Gray was already injured at the fourth stop.

The testimony of the defense witnesses contradicted that of the prosecution’s neurosurgery expert. Dr. Morris Soriano testified that Gray’s injuries — and thus his symptoms — could have worsened over time.

Notice the significant differences, as in far more information and far more accurate information, in WBAL’s account:

Prosecutors put their presentation against Goodson on pause Tuesday afternoon as a scheduling conflict allowed a defense witness to take the stand. But the state takes issue allowing Dr. Johnathan Arden being used as an expert medical witness. News accounts and other public records indicate he left his job as Washington, D.C., medical examiner following two investigations finding gross mismanagement of the D.C. Morgue, accusations of sexual harassment and allegations of racial discrimination in the training of black students and residents.

If true, that’s not helpful to Arden’s credibility, but even so, it would appear to have no bearing on his medical opinions.

Arden testified he believes Gray’s death was an accident because the manner of death cannot be determined. Arden testified that he doesn’t believe a seat belt would have prevented Gray’s injuries, and failure to render medical care did not contribute to Gray’s death.

Arden told the judge that Gray suffered a severe spinal cord injury between the fifth and sixth van stops, basing his opinion on medical reports indicating Gray was not breathing and didn’t have a heartbeat. [skip]

Arden told the judge that based on the extent of Gray’s injuries, he would be paralyzed from the neck down and unable to assist himself on the van bench, nor converse with police as the prosecution contends happened at stop four. [skip]

The defense next called Dr. Joel Winer, a neurosurgeon from York, Pennsylvania. He said a seat belt would not have prevented Gray’s injuries.

He said Gray’s injuries included all three ligaments supporting the spinal column, making him ‘unstable’ and that with that kind of injury, Gray would not have much time (seconds) to breathe, would not be able to speak. He said Gray would not be able to move his head with those kinds of injuries.

Winer said the injuries occurred after the fifth van stop and before the sixth stop. He said there were no injuries before the fourth stop. If so, Gray would ‘be floppy like a dish rag or jellyfish.

Again, WBAL provides far more balanced coverage than The Baltimore Sun, particularly coverage detrimental to the Prosecution. Interesting how that happens.



Final Thoughts:

As I’ve previously written, commenting on this case without the ability to actually see the evidence and hear and see testimony presents many problems. Considering the sparse, obviously biased coverage of The Sun, and of other media outlets, I could easily be drawing the wrong conclusions and inferences with no real way beyond experience to tell if I am in error. Please, gentle readers, bear that in mind, and I’ll do my best to make changes if necessary.

I suspect that a reason the media is so sparse in its coverage of testimony is that most of it is not at all helpful to the Prosecution. The way in which a witness testifies, the ways in which they respond to questions, are important factors in their credibility, the impact of their testimony on the case, yet we can only make inferences. Even the little we are being given is decidedly deadly to The Narrative. That says a great deal.

The prosecution continues to introduce testimony that the Defense is easily able to turn to its advantage. Introducing blood and DNA evidence is puzzling because evidence of that sort is usually used to establish that a given person was present at a particular place, or as a means of identification. In this case, there is no doubt about either of those issues, nor are they a factor in the defense. Of course, much that the Prosecution has done thus far in every case makes no professional sense, so why not?

The Prosecution had to use someone to provide a foundation to introduce the video evidence, but even if they have more of it, Det. Boyd’s apparently honest testimony destroyed any value it might have. He’s already provided the punch line–there is no evidence of a rough ride–there’s no point in telling the joke. Ethical prosecutors wouldn’t have introduced it at all. What’s their closing? Do they say: “while the video doesn’t show reckless driving, there is more we don’t have that does. There must be some because Freddie Gray is dead?” Or do they simply lie and mischaracterize what it does show?

Anyone that knows anything about street-level law enforcement knows how common it is for arrestees to fake medical problems. No amount of past statistics can prove that Freddie Gray wasn’t faking in this case, which may be why Judge Williams didn’t accept it. In any case, that testimony was a waste of time as well and could be wearing on the Judge’s patience.

As to the medical testimony, the Defense witnesses are supporting fact and common sense while Dr. Allen is desperately trying to prop up The Narrative. I suspect that given the nature of the testimony, the Defense witnesses and the Defense cross-examination of Prosecution witnesses is more convincing, but again, I have no way to be certain.

Thus far, the Prosecution has been unable to prove that Goodson even knew about the seatbelt policy change. Even if they could prove it, failing to use a seatbelt, when vans come without them, when officers seldom, if ever, use them, and when there were reasonable reasons not to use the belts, can’t possibly rise to the level of depraved heart murder.

The Prosecution has been utterly unable to prove that Goodson gave Gray a rough ride. Det. Boyd, apparently their primary witness on that theory, might as well have been a Defense witness. The Defense case will be far more deadly to The Narrative.

Finally, the Prosecution contention that Gray suffered his spinal injury between the 2nd and 4th stops isn’t credibly supported by any of the evidence thus far presented. To buy The Narrative, one has to believe that despite having his spine almost entirely severed, Gray could move and speak intelligibly. Even if that were possible, how were the officers to understand that a moving, talking Gray was in deadly medical danger? The Defense case has already gone a long way toward destroying the Prosecution theory. Its main case will finish the job.

Proof beyond a reasonable doubt for any of the Prosecution theories? Not even close. I don’t expect this, for reasons I’ve previously outlined, but it is at least possible Judge Williams will dismiss the case when the Prosecution rests. He certainly should, and if he does, he should be telling the Prosecution that he will dismiss any additional cases presented with the same evidence.