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  July 12, 2016

Officers Give Contradictory Testimony of Freddie Gray's Behavior During Cross Examination

As Judge Barry Williams drops assault charge against Lt. Brian Rice, Officers William Porter and Edward Nero offer conflicting accounts of what happened on the day Gray died in their custody
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TAYA GRAHAM, TRNN: This is Taya Graham and Stephen Janis reporting for the Real News Network here in Baltimore City, Maryland.

We're outside the Mitchell Courthouse, where we have just heard what was presumed to be the last day in the prosecution's case against Lieutenant Brian Rice, one of the six officers charged with the in-custody death of Freddie Gray.

Stephen, can you tell me what was happening in the courtroom today?

STEPHEN JANIS, TRNN: Well, in really a surprise move that I think that no one anticipated, the prosecution called two of the officers who'd been charged: Edward Nero, who's been acquitted, and Officer Porter, William Porter, who has yet to be, who was tried once, but of course was found, you know, hung jury, and so he also was called. They were both subpoenaed by the prosecution to testify against Rice.

So it was kind of a stunning move in the courtroom, and what really evolved and what was really amazingly interesting about it was that in both cases, both officers' testimony [was] kind of contradictory based on what we watched. And there were some pretty dramatic moments that I think most of the mainstream media will probably ignore.

GRAHAM: Now, didn't the young Nero, he'd only been on the police force for about four years, didn't he actually directly contradict himself–

JANIS: –Yes–

GRAHAM: –when the prosecution asked him about flailing of arms, that he said Freddie Gray was guilty of flailing his arms, and then the prosecution said, how did he flail his arms while he was handcuffed? Could you elaborate on that a little bit?

JANIS: Yes. There were two instances that were very interesting. In the beginning cross-examination, the prosecution asked Nero about what he observed at stop one and stop two, which, of course, is where Nero interacted with, you know, Freddie Gray, and was part of the group that put him in the van. And so [they] asked him, specifically, to sort of recount. And during that testimony Nero said Freddie Gray's arms were flailing, that the van was rocking, that when he was trying to put him into the van he flailed, right?

When they initially–the video we've all seen where Freddie Gray is being put in the van, he said he was flailing. So then, under cross-examination, you know, the prosecutors asked him, well, show us where he was flailing. We'll play the video. Can you show me? And Nero admitted, I can't see anything there. And then he said, you said he was flailing his arms on the second stop. But he was handcuffed. How did he flail?

GRAHAM: So, when the prosecution was cross examining Nero, didn't they actually have him try to demonstrate this flailing action?

JANIS: Yeah, it was a really embarrassing, well, I would say uncomfortable or awkward moment in the courtroom, when he was asking him how exactly a person flails their arms when they're handcuffed behind their back, and Nero gave sort of an indeterminate answer about how you shuffle your shoulders. He used that language specifically, but I think he tried to demonstrate it.

but what was more important about that was that it was such contradictory testimony. I mean, you're saying someone is flailing their arms when they are in handcuffs. Now, that just sounds silly, right? But that's what Nero testified, and he did that testimony when he was being asked by the defense.

And he was going through this continuum, how Freddie Gray was rocking the van like he'd never seen it before, that the van was just almost, like, it was like a scene out of an earthquake.

GRAHAM: And wasn't, didn't the prosecution actually have a direct way to contradict that?

JANIS: Well, there were two direct ways, as I mentioned before. There was the video, which they showed, and then he asked him about the route he took to the second stop on, I think, not Presbury and Mount, but the next stop. And he said, how did you get there? Because they didn't follow along the van. He actually drove a totally different route, circuitous route, and then met the van. So it was–in Nero's testimony there were massive contradictions.

GRAHAM: They had Officer Porter on the stand for cross-examination by the prosecutor. Wasn't he also caught in a contradiction as well?

JANIS: Yeah. I mean, he was caught in a contradiction about. a very interesting and bizarre contradiction, about the position of Freddie Gray between stop five and stop six, where he had told investigators prior that Freddie Gray had been in a very specific position leaning up against the side of the van, which of course makes it seem like nothing happened between stop five and stop six.

So then when he's being examined by the defense he says, no, he was in a more exaggerate–his position shifted between stop five and stop six. He became more exaggerated, whatever–

GRAHAM: –And didn't the defense attorney actually pick up a chair and put it in front of the judge and try to act out the position that Freddie Gray was in at the back of the van, correct?

JANIS: Yes. The judge, the defense attorney–and the judge said finally, don't break it–put the chair, and then sort of had this weird moment where he was asking Porter to sort of direct him how to position his body. But then in the cross the prosecution brought up his own statements he made to investigators, and he very specifically said to investigators, he didn't shift his position between stop five and six. He was in the exact same position, which is exactly the opposite of what they told the defense when they questioned him.

The only witnesses are discredited somewhat, because during their own cross-examination they contradicted [themselves]. That doesn't mean their, you know, committed perjury, but it certainly means that what they're telling keeps changing, keeps shifting, which means they're unreliable witnesses.

GRAHAM: Now, didn't they have Officer Martinez Davenport on the stand, who currently works for the University of Maryland security system, but he also actually was part of an investigation into making sure police and procedure was being followed, in particular seatbelt policy during the year of 2014?

JANIS: Yeah. He was what was called an inspector, and he ran a systemwide inspection of use of seat belts. Because commissioner–I gleaned from it, although there were some objections–was concerned about people not getting seat belted in the back of vans. This is under Commissioner Batts. So, he ran an inspection and said that the entire district passed, and the implication was that at that time officers were being checked. They would be spot checked.

So, they would go in the van and see if they'd seat belted the passenger, and if they did not seatbelt the passenger then they would receive what was known as a failure receipt, and they, I guess, testified that Brian Rice, Lieutenant Rice, did not receive a failure, so at that point he was buckling in passengers, which I think was kind of interesting, because obviously they have made it seem in the past that the officers had no idea that they were supposed to be belting passengers and that there was no sort of direct–so they had no way of knowing they were supposed to do this.

But just a year before Freddie Gray died, almost exactly a year, they ran a system-wide inspection check, and all the officers in all the units that failed and the wagons were notified of their failure.

GRAHAM: Right. If the officer received a failure receipt, wouldn't it actually go as high as the commissioner?

JANIS: Well, yeah. So, the commissioner and anybody, commissioner, colonels, could review these reports and take requisite action. So, it seems clear that they were absolutely checked and let know that seat belts were important. You know, we had this long explanation from Nero about what he saw, what happened, Freddie Gray was flailing. And then we got this cross-examination where much of that seemed to be implausible because, you know, Freddie Gray was in handcuffs, that Officer Nero was not where he said he was when he witnessed certain things, and the video didn't depict what he said.

What kind of questions does that raise from you about his testimony?

DOUG COLBERT: Well, the defense is making it appear that Freddie Gray caused his own death, that if Freddie Gray would have been a compliant prisoner and would have just cooperated with the police and would not have gotten up from the van's floor that he'd still be alive today.

Now, of course, if Freddie Gray was truly resisting arrest, the police would have charged him with resisting arrest or disorderly conduct, and that wasn't done here. So you have to raise some questions when the police officer is testifying to Freddie Gray being unruly and disruptive and flailing his arms when that wasn't possible.

JANIS: But do you think it's going to have any effect on the judge? Because the judges seem pretty, in my opinion, [impervious] to the arguments. Will this have an effect on the case?

COLBERT: I think it would have had an effect if a jury was judging this case, and if you had a 12-person jury I think they would be asking questions, such as, why didn't the lieutenant seatbelt Freddie Gray? Why did he leave him in an unsafe situation where one could anticipate injury? Why did he only give Freddie Gray nine seconds inside the van before leaving and having the van doors closed? I hope the judge will be asking the same questions.

JANIS: Well, [inaud.], did anybody–throughout this trial there's been the second stop much debated, where they shacked him. Do you feel like there's been any good explanation of why they shackled him at that moment, other than the defense's idea that he was uncooperative?

COLBERT: I think what the police were attempting to do is to prevent Freddie Gray from doing anything inside the van aside from being compliant and facing the consequences of being left in that unsafe situation. Certainly a van driver and a good supervising commanding officer would have left Freddie Gray protected, seat belted, and hopefully from this case other people will not suffer the same fate as Freddie Gray.

JANIS: I guess the last question–There was an officer who testified, or a former trainer major who testified about people being seat belted. They did a spot check throughout the department to check vans to see if they were being seat belted. Does that all strengthen the case that officers should have been aware that the suspect should have been seat belted, or does that not matter, legally?

COLBERT: No. I think you could infer that when you have an audit that says that people are suffering injuries because they're not being seat belted that that information would be communicated to the command officers that would include Lieutenant Rice. And therefore he knew or should have been aware that other people had been injured when they weren't seat belted.

JANIS: And so, going forward do you, I don't know if you can predict, but do you see anything different in this case than in the last cases in terms of how the verdict will turn out?

COLBERT: I think we're going to look back on this whole series of trials years from now, and we're going to ask and wonder why the evidence was not adequate to convict most of the officers of some of the crimes at least that they're facing here. But I'm not sure. We'll just have to wait to see whether this evidence changes the judge's thinking from his prior rulings.

GRAHAM: This is Taya Graham and Stephen Janis reporting for the Real News Network here in Baltimore City, Maryland.


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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