Freddie Gray Mis-Trial #1

Yesterday with the Jury being unable to reach a unanimous verdict a mis-trial was declared in the case of William Porter over the April 12th (12/4/15) death of Freddie Gray in Baltimore, Maryland, US. This is the first of six trials to be held over the death.

Although due to the COP21 Summit I didn't get to follow proceedings in as much detail as I would have liked it seems that things played out pretty much as I thought they would.

The case against Mr Porter was considered the strongest of the six because during questioning Porter had admitted that while being transported Mr Gray had requested medical assistance that he did no receive.

The prosecution's argument was that this refusal to provide medical assistance contributed to Mr Gray's death and represented gross negligence on the part of Mr Porter.

The defence to this allegation was really two-fold.

The first part being that as the designated commander of the van transporting Mr Gray it was the driver - Ceaser R Goodson Jr - rather then Mr Porter who had ultimate responsibility for denying Mr Gray medical assistance. By passing Mr Gray's request up the chain of command Mr Porter had fulfilled his legal obligation and therefore was not negligent.

The prosecution appears to have already conceded this point by charging Goodson Jr with the much more serious offence of murder by way of depraved heart.

The second plank of the defence is that Mr Gray had been arrested on more then 20 previous occasions.

Normally this would not be relevant but during almost all of his previous arrests Mr Gray had complained of being injured and requested medical attention. On some occasions he was given that medical assistance and on others he was not. However on no occasion had he actually been injured.

On the specific April 12th arrest Mr Gray was caught on video and by eye-witnesses immediately claiming to be injured and requesting medical attention long before Mr Porter and the transport van had arrived. These claims continued throughout the journey in the police van.

Therefore it would have been reasonable for Mr Porter and all other officers involved - who had been made aware of Mr Gray's history - to assume that Mr Gray was simply lying about his medical condition in an attempt to be taken to hospital in order to give himself a greater chance of escaping from custody.

As such Mr Gray's repeated attempts to lie about his medical condition made it impossible for the officers to properly fulfil their duty of care to him. It is a classic example of the situation described in the Aesop Fable/allegory "The Boy Who Cried Wolf."

In an attempt to counter this defence argument the prosecution tried to argue that Mr Gray had been injured at a specific point in the journey - I think between the 3rd and 4th stops.

Therefore regardless of what had gone before it should have been immediately obvious to Mr Porter and the two other officers in the van that Mr Gray was in desperate need to medical attention and on this occasion his claims of injury were genuine.

The prosecution case almost completely collapsed when the assistant Medical Examiner (M.E) who had performed Mr Gray's autopsy appeared as the prosecution's star, expert witness.

Under cross-examination the assistant M.E was asked how she had proved that Mr Gray had been injured at the specific point claimed. She replied that she could not prove it making her claim mere conjecture.

During the heated exchange she even blurted out the phrase; "I didn't say that you could call it evidence."

That is a phrase that no prosecutor wants to hear from their star, expert witness.

Although I don't know if such a motion was filed this revelation that the prosecution in fact had no evidence to support its allegation should have prompted the defence to file a motion that the case was immediately dismissed before the defence had to lay out its case let alone before the matter was placed before a Jury.

Under the principle of the presumption of innocence the prosecution actually has to provide rather a lot of evidence before an accused person's innocence can even be questioned forcing them to mount a defence. The prosecution's evidence must then survive the defence's evidence before the matter can be put before a Jury.

The Jury must then unanimously decide that the prosecution's evidence is so strong that it removes all reasonable doubt that the accused person is guilty. If they are unable to do that then they have to acquit.

In this particular case the prosecution's evidence was so weak there seems to have been serious questions as to why the matter got as far as being presented to a Jury. Therefore it is impossible to explain legally why a properly instructed Jury was unable to return a unanimous not guilty verdict.

Although we're unlikely to ever know the inner workings of the Jury it seems that the main cause is racial bias. Basically the black Jurors went into the trail having already decided that the accused was guilty and would be convicted regardless of what the law or the evidence said.

The non-black Jurors however had gone into the case with an open-mind and where therefore better able to fulfil their duty to justice.

This goes back to the fundamental question that has surrounded the case from the start - Can Baltimore provide a fair and unbiased Jury?

Today there will be another hearing where the prosecution will be invited to re-file the charges against Mr Porter in the hope of being granted a re-trial.

Unless an all black Jury can be guaranteed for all future trials it seems unlikely that there will be a different result. However due to her husband's political aspirations it seems like that Marilyn Mosby will re-file charges anyway.

However unless dramatic new evidence is presented - for example the M.E suddenly being able to prove her conjecture - there doesn't appear to be a prosecution case for the defence to answer.

Therefore the only question really seems to be whether the Judge will deny the prosecution's application for a new trial without prejudice under the principle of double jeopardy meaning that charges can be re-filed later or with prejudice meaning that the case ends here and now.

It will then simply be a matter of the remaining five cases also being dismissed with prejudice.


13:20 on 17/12/15 (UK date).