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  November 25, 2015

Policing on Trial as Freddie Gray Case Set to Begin


Critics say cases against six cops can't remedy decades of aggressive tactics and flawed policy
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Policing on Trial as Freddie Gray Case Set to BeginSTEPHEN JANIS, TRNN: It could be the most significant trial in the history of Baltimore, and perhaps a legal bellwether, not just for the community, but the future of policing in a city that has devoted itself to it. I'm talking about the upcoming legal proceedings for six Baltimore police officers charged in the death of Freddie Gray, a process which begins Monday with the case against Baltimore officer William Porter.

Porter is facing charges of manslaughter, assault, and reckless endangerment. But even more significant is a role Porter might play later, as prosecutors have deemed him a key witness against five other officers charged in Gray's death. To help me sort out the legal issues and potential implications that six consecutive trials in a city already tense about their outcome are two people with both political and policing experience. State Delegate Jill Carter has been a longtime advocate for policing reforms during her decade-long career in the state legislature, and Stephen Tabeling is a former homicide lieutenant in the Baltimore Police Department. He was also one of the first detectives to investigate use of force cases. Thank you both for joining me, I appreciate it.

So just to start out with, you know, we were talking before we got started, was we have six trials coming up in the Freddie Gray case. And this sort of poses a certain burden on the city. You were talking about you're worried about the city, you're worried about the legal proceedings. And maybe to a certain extent the lack of the legal system to be able to certainly, you know, adjudicate this in a way that would be satisfactory. Talk a little bit about what your concerns are in this case.

JILL CARTER: Well, the legal system can only read out what's charged. And so of course the first concern that I have and that other people have raised is the fact that we're talking about six police officers going on trial for the homicide death of Freddie Gray. But all of the charges have been kind of in the middle of the incident. When, you know, when the state's attorney first came out and made an announcement that she was charging, that her office was charging, she said very clearly this was an illegal arrest, and that these police officers would be charged with the death of Freddie Gray.

But we all saw from the video that there was an assault that happened prior to Freddie Gray ever being placed in a van. And if, in fact, there was an illegal arrest that resulted in or that was contemporaneous with an assault, I would argue that would be first degree assault and attempted murder. Those charges should have started with those officers right there outside the van. And then everything else continued with the cumulative effect of charges, the cumulative charges for everything that ensued after that.

JANIS: Well, Stephen, you said--now, you said that they had a right to chase him, and that you believe the arrest is legal. Can you explain that? Because a lot of people would take issue with that.

STEPHEN TABELING: Well, I think it's a decision for a court to make. But based on Terry v. Ohio, I believe that at the time, the place, the location, and knowing this individual, that they had a right based on Terry v. Ohio, they had articulable, reasonable suspicion to stop him and pat him down. Now, what happened after the original patdown is another issue. But you know, I think that's a question for a court to answer. But based on all the information, they certainly had a right to detain Freddie Gray.

JANIS: To chase him?

TABELING: Yeah, absolutely. Yes, he--.

JANIS: But he had not at that point committed any crime on view, that they could see. Why would they have the right to chase him?

TABELING: You don't have to have a crime committed in your presence for a Terry stop. It's the time, the location. If the person, if you've had the person in the past for having weapons or similar things like that, and they're in a neighborhood at the time, it's a high drug area or whatever it is, you have a right to do that.

There is a case called Wardell v. United States, a similar type thing, where they chase this guy through a housing project because they knew him in the past, what he had done. And they patted him down. The Supreme Court upheld that case. But the issues I have here, and I don't know everything, did they have a right? Yeah. What happened after that? You know, I think this is going to be for the court to decide. But the other issue I have is having multiple investigators working on a case. That's another big issue that I have.

JANIS: We'll get to that. Jill, we were talking about, before I had talked to attorney Warren Brown, and he said he thought it was impossible for these officers to actually get a fair trial because of the attendant, sort of, controversy. That people would be afraid to acquit the officers regardless of the evidence. What do you think of that assertion?

CARTER: I actually disagree. I think that first of all, I have a lot of faith in Baltimore City jurors. And I think that we're not monolithic. I think that just as many people that are as upset about and have already formed an opinion that the police acted improperly, there are also many, many people in the city that think that the police either acted properly or don't want to question what the police did, because they believe it's more important that we protect the officers, because we expect them to protect us.

So I think that we're going to have a very mixed jury pool. And I really don't think that any juror, potential juror, is going to make a decision of guilty or not guilty based on their feeling of whether this is going to cause more uprising or not. They're going to do it based on the evidence that's presented to them.

JANIS: Well, one of the things we talked about, the defense was trying to get ten peremptory challenges on the jury selection, but it doesn't look like they're going to get it. How would that affect jury--.

CARTER: They shouldn't get it.

JANIS: Why not?

CARTER: It's actually even, I think it's outrageous that they would even ask for that. You know--.

JANIS: What is the significance of that, just so people understand? Would they get five or gen challenges, what does that mean, basically?

CARTER: Normally the state will get the ten challenges, because they--and usually the officers are with the state. And the reason that they get it is because they have the burden of proof. So the defense gets usually five, or less than the state.

JANIS: Which means they can dismiss a juror for any reason, is that what it means?

CARTER: Yeah. The peremptory challenges are where you don't have to have any reason, you just don't have to like them. But the for cause--they still have the same for cause strikes, regardless.

JANIS: Right. So even if they don't use, they can have for cause, right.

CARTER: What the defense is doing is they're trying, in essence, to get a change of venue. Because they're trying to really be so meticulous in selection of the jury pool--.

JANIS: That there's no jurors left, basically.

CARTER: Exactly.

JANIS: So Stephen--to get back to the investigation. Now, it was interesting, we talked about this. The Baltimore Sun reporter was basically embedded with police. So how can the prosecutors charge, trust the police investigation, when there's a reporter watching everything that's going on?

TABELING: Well, I really had an issue with that. You know, I never in my career heard of a reporter being associated with the police while they're doing the investigation. I personally, from an investigative viewpoint, I think that's going to be a problem. You don't have outside people on your interrogation.

And in line with that, I have an issue with the way the investigation was conducted. Any time you have multiple, multiple units investigating a case, you create a great big long chain of evidence, and you can never get to the bottom of it. In the years gone by I had responsibility for investigating police shootings. I did it myself with one detective, because if you can keep that short chain, you're better off. And look what happened here. The sheriff's department, the state's attorney's office, and the homicide squad. And now investigating police shootings they have a 30-person squad, if it's correct what I read in the paper. And any time you get all those people involved, I think you have a problem.

JANIS: Well, one thing, though. You're a prosecutor trying to do this case, and you see that they have a reporter embedded, and you see they have 30 people. Why shouldn't you just do your own investigation? Why should you trust the police to do the investigation? Which is what normally happens, which is what happened to you. Why should you trust them?

TABELING: Well I--you know, I'm not there anymore. And I wasn't there during the investigation. But I would not conduct an investigation that way. I conducted numerous investigations, and I never had multiple people with me. When [palmere] was commissioner, he gave me full responsibility for all police shootings. We never had a lot of problems. Just think of how many people's going to be involved if what I read in the paper is right, with all these different--you know, any time you get a half a dozen detectives involved in a case, and you exclude them from the courtroom, you may have a problem. It's too many hands in there.

JANIS: So Delegate Carter, one thing that came up in the motions was that Mr. Porter wants to call, like, 25 character witnesses. From your, just outside looking in as a defense attorney, what could be the point of having so many character witnesses? I mean, is it a way to sort of lead the jury astray from the evidence? Is it a way of saying we don't have anything to challenge the evidence, we're just going to make it seem like he was a really nice guy? What do you think?

CARTER: [Inaud.] I think it's, I think that's also just about as outrageous as the peremptory strikes, because I think that first of all, we don't even know for sure that he's going to testify. And if he doesn't testify then there'd be no reason, of course, for that. But normally, you know, a character witness wouldn't even come in. You're looking at the people that can testify to the direct evidence, the investigators, and the like. So first, I don't think--that hasn't, that motion I'm assuming hasn't been ruled upon. And I don't think that it'll be allowed.

JANIS: No, the judge allowed it, actually. Yeah.

CARTER: Twenty-five character witnesses.

JANIS: I mean, that's what I read, you know, in the Sun. I was not there. But it did say that yeah, he's going to allow--he's not going to put any limits on the character witnesses. And also that Porter is going to be able to testify himself. Is that a good--I mean, to me it seems like they're trying to formulate a strategy that's going to sort of not be about evidence but about his character.

CARTER: I think so. Interesting, because I think that we can speculate all we want, but what happens in a courtroom is often something that takes on a life of its own. And I think that it can be actually very damaging to him to testify. Because I think that while it's my understanding that he will testify to the fact that he reported that Freddie Gray needed help, or he heard Freddie Gray call for help, or whatever. I think that he sets himself up for neglect of his own duty. His own responsibility. He had more responsibility as a person that wears the badge and carries the gun, and is charged with protecting and serving, more than just to file a report. He had a responsibility to do something about it. So I think he can actually put himself in more harm by testifying.

JANIS: Steve, we talked about, we have talked about a lot, you and I argued about the manslaughter charges. You feel like they're going to be very hard to prove, and you feel like maybe the prosecutor would have gone too far. I know you don't know all the evidence. But from your experience of dealing with manslaughter cases, or the second degree murder cases specifically, second degree murder, what do you think are the problems that could come up during that?

TABELING: Just from an investigator. They've got to prove in second degree murder that there is some kind of malice. They've got to prove that he had, his intent, what his intent was to do. And just--I'm not a lawyer, I'm an investigator. And I think that would be very difficult to prove second degree murder with the guy driving the van. They might have something else, I don't know. But you know, you've got to prove intent on crimes like that. And as you and I talk, you know, maybe they overcharged and they could have went back with lesser charges, and they'd have had a better opportunity than trying to load up on everything.

JANIS: Jill, we were talking about before we started a little bit about what this case is about beyond just the legal proceedings, in terms of what it means about policing. You were talking about how, you know, these officers sort of become symbols of something a little bit larger than just a specific case. What do you mean by that? What sort of--what does this case mean for policing at large, in terms of how it's been prosecuted in this city for, almost for decades, at this point?

CARTER: It's interesting. And you know, as Mr. Tabeling just talked about, the difficulty in maybe proving the second degree murder because of the malice issue, I believe that the malice comes in with something that's a little illusory, a little difficult to prove, a little intangible, with the fact that there was a dehumanization of Freddie Gray in the minds of the police, in the minds of the society. And that probably the malice is because he was a poor, lead-poisoned young black man with a criminal history that had no value in the eyes of the police officers who often treat other, similar young men the same way, and get away with it all the time. That is difficult to prove. But that's, that's an indictment on the police. The whole police, Baltimore police department. And what I hope that will come out of this is that will change.

I'm not that optimistic, though. Because I don't know, these charges, I don't know that there will be convictions for that.

JANIS: Right. Well, see, that leaves me with this question that I have asked you before, and I'm going to ask you again, I mean, he was alive and healthy before he was arrested. And he was dead an hour later, his neck severed. How is that legal? And you're a cop.

TABELING: I'm a cop, but I'm not talking about any legalities. You're saying, how did that happen? Well that's, it's up to the medical examiner and the information a medical examiner has, and they get together with the police, and they talk to him about the case. And then they look at the situation where the guy was arrested. And based on all that information the medical examiner has to make a determination. Was it a homicide, or was it an accidental? And I understood at first she said it was accidental. And then there was a meeting, and we talked about the medical examiner, then there was a meeting, and it came out as a homicide. I've never, I've never seen that happen.

JANIS: You never consulted with a medical examiner, brought new evidence?

TABELING: No, no.

JANIS: Seriously, you've never changed--.

TABELING: No. You consult with the medical examiner. But when we went out on a crime scene, we'd make an anatomy sheet. And we had to attend the autopsies. And the medical examiner would say, detective, tell me what you saw. And you'd tell him what you saw. And it gave him a starting point.

JANIS: But once you handcuff a person, and they're in your custody, aren't you responsible for their safety?

TABELING: Well, you're responsible for their safety when you arrest them.

JANIS: So I mean, it does seem that they did something wrong in this continuum of events.

TABELING: Well, it--again, I'm not part of the investigation. I wasn't on the street to really see what happened. All I can go by is what I read. And it's a lot of conflicting stuff that comes out in the papers. And you know, you can't believe everything. But what really got me is when I read that whole story and found out that there was a reporter with them all the way, during the whole investigation.

JANIS: Well, just to wrap it up. Delegate Carter, you know, you have been an advocate for police reform for however long I've known you, and yet nothing happened in Annapolis last year. And then of course this workgroup. Is there any hope for police reform in the light of what you're talking about, where this Freddie Gray case represents a need to change philosophy of policing? But is there any hope that we get reform? And if not, what do we need to do?

CARTER: Based on what we have before us now with the legislature still not taking the issue seriously and really really working toward legitimate reform, just try to make--I think they're trying to create a pretext of reform. And then this Freddie Gray case, I wouldn't pin all of our hopes and dreams on it. We can't do that.

I think that--. The problem is, and you just mentioned it, you know, this young man is in police custody and he's seemingly healthy, and then he's dead. Well, this is so often, this happens so often--this happened with Tyrone West. It certainly happened with Anthony Anderson where there wasn't declaration of a homicide. So you know, I guess my concern and fear is that just because there's a declaration of a homicide, and there's police action or inaction that results, ultimately, in death, I'm not certain that it's going to rise to the level before the jury, or the evidence is going to be presented in court, to prove beyond a reasonable doubt criminal conduct on behalf of the police, and not just negligence or even gross negligence, which is civil liability.

JANIS: Well, listen, Delegate Carter, Lieutenant Tabeling, thank you for joining me. I really appreciate it. We'll continue this discussion soon as the trial unfolds.

My name is Stephen Janis, and I'm a reporter for the Real News Network in Baltimore.

End

DISCLAIMER: Please note that transcripts for The Real News Network are typed from a recording of the program. TRNN cannot guarantee their complete accuracy.



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