Thoughts on the mistrial of Officer Porter

Judge Barry Williams declared a mistrial today in the case of Baltimore Police Officer William G. Porter who is charged with multiple crimes in connection with the death of Freddie Gray. The jury deliberated for more than 16 hours but could not reach a decision on any of the four crimes alleged by the prosecution. We don’t know how the jury divided, but boy would we like to.

Porter isn’t out of the woods. The prosecutor can retry him and may well decide to.

I have a few thoughts about the case. First, it’s a sad commentary that the jury couldn’t find Porter not guilty at least of certain charges against him. Judge Williams instructed the jury that to find Porter guilty of involuntary manslaughter it would have to conclude, beyond a reasonable doubt, that Porter acted in a “grossly negligent manner” and that his conduct was a “gross departure” from what a “reasonable police officer” in a similar situation would do.

I don’t think the evidence remotely sustains a finding of gross departure. The testimony of the former Baltimore police chief and of current officers contradicted it.

To find Porter guilty of of misconduct in office required a finding that Porter “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.” This too seems far-fetched based on the evidence as reported by the press.

It may be that the jurors who wanted to convict Porter of something refused to acquit him of anything unless a compromise verdict could be reached. But in a well-functioning legal system, Porter would be free and clear of at least some charges, in my opinion.

Second, unless the jury came close to convicting Porter of something, a retrial seems silly. The prosecutor has five more cases to bring regarding Gray’s death. How much time, money, and emotional energy does Baltimore need to invest in this matter?

Moreover, according to the Washington Post, retrying Porter might hurt the prosecution’s chances of convicting Caesar Goodson, the driver of the police van and the officer against whom the city may have its best case. The Post reports:

The van’s driver, Officer Caesar R. Goodson Jr., is scheduled to go on trial Jan. 6, when he will face the case’s most serious charge: depraved-heart second-degree murder. [Note: this seems like significant overcharging to me]

“Officer Porter shifted blame to the van driver, Officer Goodson, in his testimony,” said Warren Alperstein, a defense lawyer and former Baltimore prosecutor. “The state had hoped to use Officer Porter’s testimony against Goodson at his trial. With a case possibly pending against Porter, he could invoke his Fifth Amendment right not to testify.”

If this analysis is correct, why not cut Porter loose and maximize the chances of convicting Goodson of something? Perhaps the prosecution is afraid of the public reaction. But it has more to fear from a scenario in which no officers are convicted.

Third, Baltimore State’s Attorney Marilyn Mosby reportedly looked “visibly upset” when the mistrial was declared (which strikes me as unprofessional behavior).

Good. Mosby is a disgrace.

It may be that one or more of the officers she charged committed a crime. If so, I hope the prosecution gets a conviction. But in the meantime, let Mosby fret.