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After hung jury in Porter trial, what now?

By Luke Broadwater and Ian Duncan
The Baltimore Sun

December 16. 2015 11:12PM
Baltimore Police Lt. Colonel Melvin Russell, center, holds a child while talking to citizens on the streets of the Penn North section in Baltimore December 16, 2015. A mistrial was declared on Wednesday in the case of a Baltimore police officer William Porter charged in the death of Freddie Gray, a black man whose killing while in custody sparked riots in April, and the city's mayor urged calm. (REUTERS/Gary Cameron)

BALTIMORE -- After fighting to a draw in Baltimore's highest-profile trial in years, prosecutors and defense attorneys will meet Thursday behind closed doors to decide what happens next.

With no clear victory for either side, prosecutors gave early indications they intend to retry Officer William G. Porter, who faced four charges in the death of Freddie Gray. But after a jury deadlocked in the first trial, legal analysts say prosecutors face difficult strategic decisions.

Will they press ahead immediately with another trial of Porter? Or will they turn their attention to other officers charged in Gray's death, notably Officer Caesar R. Goodson Jr., the driver of the van in which Gray sustained his fatal injuries?

"The state is now confronted with a significant issue and has a difficult decision to make," said Warren S. Alperstein, a former city prosecutor who watched the trial. "Officer Porter, in his statements, very clearly shifts blame to Goodson. Prosecutors very much want to use Officer Porter in the case against Goodson."

Court officials said lawyers in the case will meet in Judge Barry G. Williams' chambers Thursday to discuss a new trial date for Porter. But legal analysts said much uncertainty remains.

University of Maryland law professor David Gray said prosecutors typically indicate they will retry a defendant after a hung jury. But he suspects they will offer Porter a "more attractive plea deal" in return for testimony against other officers.

"The decision as to whether they actually will go through with a second trial is weeks away," said Gray, who is not related to the victim.

Meanwhile, analysts said the hung jury indicates both sides of the case presented persuasive arguments to different segments of the jury. The 12-member panel -- four black women, three black men, three white women and two white men -- could not agree on Porter's guilt or innocence on charges ranging from misconduct to manslaughter.

Williams ordered lawyers in the case not to talk to reporters, and the identities of the 12 jurors were not disclosed. Analysts can only speculate on what might have influenced members of the jury.

Since State's Attorney Marilyn J. Mosby announced charges May 1, her office has faced questions about whether it moved too quickly in the case. Wednesday's outcome should blunt some of those criticisms, analysts said.

David Jaros, a University of Baltimore law professor, said it's significant that at least one juror was convinced of Porter's guilt on every charge in a legally complicated case.

"That's not Eric Garner, where there's a film of the guy choking," he said, referring to the death of a man in police custody in New York in which officers were cleared of wrongdoing. "This is a much harder case to prove, so that says something."

Gray and others believe white and black jurors may have perceived the case differently. "Race plays a role in every aspect of our criminal justice system," Gray said. "It follows that race played a role in this trial and this jury's deliberations."

If prosecutors seek to retry Porter ahead of the next scheduled trial, it could have a domino effect _ pushing back all the other trials. The murder trial of Goodson, who faces the most serious charges in Gray's death, is set to begin in early January.

Williams could order both sides to stick to the schedule laid out in the fall, with the five remaining officers' trials taking place throughout the winter and spring.

The defense might also want to explore what kind of a deal could be reached, said University of Maryland Law professor Douglas Colbert.

"You have an ethical duty to engage in negotiations and then allow your client to make that decision," Colbert said.

The number of jurors that were in favor of convicting Porter will be a key piece of information both sides want to find out as they craft their strategies, defense attorney Brian Murphy said. It only takes one juror to leave the jury hung, and Murphy said he's seen lone holdouts in favor of both conviction and acquittal.

"You've got to find out what the count was," he said. "If it's eleven to one for not guilty, they ought to think about not trying it again."

If Porter is retried, the lawyers will have tactical decisions to make.

Both sides will want to go over the transcripts and figure out what worked well and what didn't. It's not clear that either side would head into a second trial with an advantage because each gets a chance to analyze their own performance and that of their opponents.

"I think it's a wash," Murphy said. "Each side knows exactly what the other side thought was their strongest case ... and they each know what the holes in that strongest case are."

During the two-week trial, prosecutors and defense attorneys clashed over a number of issues, including whether Porter's actions were "reasonable" when he declined to call for medical help for Gray or fasten him in the van with a seat belt.

Porter's lawyers argued that police rarely seat-belt prisoners and that the department's policy on the matter -- updated just weeks before Gray died -- was not well known. Prosecutors argued that Baltimore Police Department rules clearly require officers to seat-belt arrestees. But they did not present witnesses to rebut statements that few officers ever use seat belts on detainees.

At the time of Freddie Gray's death in April, the Baltimore Police Department had been waging a nearly three-year campaign urging officers to use seat belts for detainees transported in police vans, departmental audits obtained by The Baltimore Sun show. Four department audits from 2012 to 2015 showed increased compliance.

During a 2012 spot check, no detainees were buckled in agency vans but, by 2015, three consecutive audits showed most or all detainees in the vans inspected had been placed in seat belts.

Alperstein said prosecutors did little to contest the defense narrative about lack of seat belt compliance.

"The defense very effectively made the point that, at that time, seat belt use was close to nonexistent throughout the department," Alperstein said.

If prosecutors decide to move forward with a second trial, there will be another battle over whether to move the case out of Baltimore. Porter's lawyers moved for a mistrial as the jury was deliberating because Baltimore schools CEO Gregory Thornton sent a letter home to parents urging calm. Throughout the week, officials called for peace in the wake of a verdict, and police prepared in Druid Hill Park to deal with any protests.

Those events could weigh on future potential jurors, Jaros said, though Judge Williams before the first trial expressed his confidence in the jury selection process.

"It's not impossible he would say that again," Jaros said.

Murphy said neither side will look with relish at the prospect of battling the case a second time.

"Your energy has been sapped," he said. "These people are tired ... You're burned out. You just want to go home and sleep for three days."


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