The Corner

Law & the Courts

The Travesty in Baltimore

Baltimore state’s attorney Marilyn Mosby (Mark Wilson/Getty)

The chilling thing about the hung jury that resulted in a mistrial for Officer William G. Porter, the first Baltimore cop to stand trial on charges arising out of the death of Freddie Gray, is that it was a hung jury.

This was a prosecution that should never have been brought, based on such a stark lack of evidence that there was not even probable cause to make an arrest, much less proof beyond a reasonable doubt to convict a man presumed innocent. The jury should have acquitted Officer Porter in record time. Indeed, the case should never have gone to jury deliberations because the trial judge should have dismissed it when the state rested without proving any crimes.

Yet, the demagoguery created such an atmosphere of intimidation that at least one juror voted to convict. We may never know what the numerical split was in the vote of the twelve jurors. We know for a fact, however, that a riotous element of the community, which has the prosecutors and the government in its thrall, has made clear that no verdict except “guilty” – regardless of the lack of proof – will be acceptable if Baltimore is to be spared more violence.

Jurors, who are supposed to weigh cases without fear or favor, are beset with concerns about their personal safety, the safety of their families, and the fate of the city. In that setting, even though there was no proof, it was an act of great courage for jurors to vote “not guilty.”

Understand that when defendants are tried separately – there are six police officers charged in Mr. Gray’s death – the prosecution will always start with its strongest case. Winning a conviction makes convictions (by trial or guilty plea) much more likely in the other cases; anything less than a conviction can make the other cases unravel. In fact, the remaining cases are rumored to be so weak that prosecutors reportedly see the conviction of Porter as critical – i.e., once convicted, Porter would have no more Fifth Amendment privilege to refuse to testify, so the state could then compel him to appear as a witness and, they hope against hope, provide the evidence they now lack.

So the Porter case was state’s attorney Marilyn Mosby’s best shot. That the prosecution’s presentation was woeful will come as no surprise to readers who’ve followed Mosby’s antics here: her rush to bring charges before the investigation was anywhere near complete; her politicized rant in announcing the charges, nakedly acknowledging that they were intended to satisfy the mob’s cries of “no justice, no peace”; her embarrassing need to dismiss false-imprisonment charges brought because she was either unaware of or indifferent to the governing law; and so on.

Nor should anyone have been surprised by her signature tactic: a relentless pattern of concealing exculpatory evidence from the defense: e.g., the fact that Gray was under the influence of drugs when arrested; the fact that he’d claimed prior back injuries in the few weeks before his death; the fact that the medical examiner initially ruled Gray’s death accidental but changed the finding to “homicide” after meeting with Mosby; the fact that the medical examiner concluded that the police did not intend harm to Gray and that Gray would not have sustained his severe injuries if he had remained in the prone position the police had placed him in; etc.

The prosecution did not have a case. Mosby, instead, had a cockamamie theory in search of supporting evidence that never materialized, namely: Gray died of preventable injuries at some undetermined point during the ride in the police van because police intentionally failed to strap a seatbelt on him knowing this was likely to cause him injury, and then callously failed to get Gray medical attention when it was clear he needed it. It is far from clear that the theory would have warranted convictions if there had been witnesses to support these propositions. But there weren’t: the case was basically built on rank speculation by the obviously pliant medical examiner.

The actual evidence established that  Porter was unaware of the recent change in police policy regarding seatbelts and had never used one or seen one used in his career. The jury learned that failure to comply with a policy guideline is not grounds for prosecution even if the officer knows about the guideline, and that it can be dangerous for police to try to affix a seatbelt on a criminal, so police commonly do not do it. In any event, having the seatbelt affixed would not necessarily have kept Gray in place. He was under the influence of narcotics and uncooperative. Porter and other police repeatedly checked on Gray, inquired about his condition, and at one point reasonably believed Gray was faking an injury. But as soon as Porter realized Gray was actually injured, he immediately called for medical help and, in the meantime, attempted to provide aid.

As Andrew Branca points out at Legal Insurrection, the evidence established that, if anything, Porter went “above and beyond his duty in dealing with Gray.” The jury could not convict him on any of the four charges: manslaughter (a truly absurd overreach), assault, reckless endangerment, and misconduct in office (each only marginally more plausible).

Finally, it bears noting that, like Freddie Gray, Officer Porter is African-American. That fact is clarifying. The campaign against the police is driven by race-mongers pushing a racial injustice narrative. But it is against the police. We’re told “Black Lives Matter,” but when it comes to black cops … not so much.

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