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Officer William Porter’s testimony will be key to defense, says law professor

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STEPHEN JANIS, TRNN: This is Stephen Janis reporting for the Real News Network in Baltimore. The prosecution has rested in the case of William Porter, one of six officers charged in the death of Freddie Gray. We’re here at the University of Maryland law school. We talked to law professor Doug Colbert about the prosecution’s case and what to look forward to when the defense makes its argument that Porter is innocent. So your first, your takeaway, the prosecution rests. Your takeaway, how–what kind of case did they put on, in terms of what’s your analysis of their case so far? DOUG COLBERT: Well, the prosecution’s presented a, a strong and, and convincing case. We have to remember, it’s halftime. So we have to always keep an open mind about what the defense is going to be doing next. But the prosecution has to be very satisfied. It kept its promises that it made during its opening statement. Its witnesses came through as it, as they were expected to do. And the final witness really pulled the whole case together. JANIS: And what–and how so? How did that final witness pull the case together in your, in your mind? COLBERT: Well, he talked about the shared responsibility that Officer Porter had along with Officer Goodson, who was the driver of the van. And in the beginning, the defense was trying very hard to explain that it was Officer Goodson who had the primary responsibility for taking care of Freddie Gray. But it was very clear from the expert testimony that Officer Porter and every other police officer had an equal responsibility, a shared responsibility, in making sure that Freddie Gray was protected in the back of the van, and that he received the medical treatment that he needed. JANIS: Is there anything the defense did during the prosecution you felt that, you know, sort of either discredited the prosecution case, or raised what you would think would be some reasonable doubt during that period of the case? COLBERT: I think the defense has been effective as well, in terms of adding questions, confusion, possible theories for what took place, focusing all the time on the fact that the prosecution’s got the burden of proving guilt, and all they need do is to raise a reasonable doubt about the causation of Freddie Gray’s death. So they are very adept at concentrating on what it will take to convince at least one or more jurors that Officer Porter should not be held criminally responsible. JANIS: Well, what do you see in terms of, you know, just in terms of that, that’s an interesting argument. To say that his death occurred in some way that they’re not responsible. What–what kind of wiggle room do they have there to–what kind of scenarios could they pose? Is it simply a matter of doubt, or is it a matter of positing some other explanation? COLBERT: Both. The doubt lies in the fact that no one was able to see what was taking place inside the van, because there are no video cameras there. So you have a situation where it may well be that Freddie Gray caused the injury himself. One of the theories is that this was self-inflicted. The expert witness yesterday made it plain that it was not possible for Freddie Gray to injure himself by throwing his head backwards, and that it was too far away to be able to injure himself and break his neck by pounding himself forward. So the idea is that there are different theories here. But it really comes down to whether Officer Porter had enough information from his vantage point to be able to conclude that Freddie Gray was in need of assistance. And that’s something that they are going to spend time with the jury on. JANIS: How do you think the jury–do you have any sense of how the jury is responding to this case or what they’re, what cues they’re taking at all? COLBERT: I think they’re going to provide a sympathetic view of the situation that Officer Porter faced. He’s from Baltimore, he’s young, he’s only had two years of experience. He’s someone that a lot of people on the jury can commend for taking the path that he’s taken. And surely a lot of the sympathy and empathy for Officer Porter properly belongs more at the, if he’s convicted of a crime, at the sentencing phase. But nonetheless, credibility depends on whether you find someone believable. I think what Officer Porter will be faced with is a vigorous cross-examination. And he’ll be left to explain why he didn’t do more, why he left Freddie Gray in a situation that was at least as unsafe, if not more unsafe, by not providing any security for him. And why didn’t he go to the hospital? He gave a full videotape interrogation to investigating officers. And his answer, as I recall it then, was something along the lines of EMS, the emergency services, they don’t like to take someone in custody who’s already on the police van. But then you had a witness yesterday who said, we would always respond if we were called, and we’d always take someone who needed medical attention in our vehicle. JANIS: Is that a legitimate, from the eyes of the law, is that a legitimate excuse? Saying well, you know, people won’t pick him up? Or–is that a legitimate excuse not to render someone aid? COLBERT: No, that wouldn’t be. But what the defense will argue is that Officer Porter acted as a reasonable police officer. He did what reasonable police officers do under the circumstances. He did not have enough information or evidence to believe that Freddie Gray was in such dire condition. And he even helped him up, and he treated him, you know, respectfully. And so they’ll argue there simply is not enough evidence here to say that the officer acted criminally. He may have been, looking back, he may have regretted not having done certain things. But I think, I think that Officer Porter’s testimony is going to be the final witness that the defense presents, and will be crucial to the outcome. JANIS: Well, that raises a great question. If you’re the prosecutor, you know, you’ve got a person who’s trying to paint a sympathetic picture some people can identify with. How do you cross someone without, perhaps making them look sympathetic, let’s say. What do you do, I mean, how do you approach–. COLBERT: You treat him with respect, you don’t badger him, you don’t yell at him. You speak in the same voice I’m speaking right now. You make the same eye contact I’m making with you. And as long as the witness is testifying truthfully, this would be the tone. The moment that the cross-examiner, the prosecuting attorney, feels that Officer Porter is saying something that’s not credible, that’s when the voice will change, and that’s when the lawyer will zero in.


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