Defense Using Specter of Unrest in Freddie Gray Case

Veteran civil rights attorney A Dwight Pettit responds to developments in the first week of the Freddie Gray case

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JAISAL NOOR, TRNN: Welcome to the Real News Network. I’m Jaisal Noor in Baltimore. Today is day six of the trail of William Porter, first of six officers to face charges for the death of Freddie Gray. We recently sat down with defense and civil rights attorney A. Dwight Pettit. He’s a four-decade veteran of the Baltimore criminal justice system, and outspoken advocate for police reform.

So Mr. Pettit, today marks the beginning of the second week of the trial of Officer William Porter, first of six officers facing charges for the death of Freddie Gray. Let’s start with the defense arguments. The defense said to the jurors, don’t make this–don’t make a decision based on your fears of what the consequences could be. That was an important part in the opening statement, how they started their opening statement. It also was a key part in the defense’s motion to change venues, which Judge Barry Williams rejected. What are your thoughts on that?

A. DWIGHT PETTIT: Well, of course they’re going to continue to raise the issue of the venue. And so they’re going to raise that continuously as a matter of law, to preserve it for appellate purposes. But they’re also going to raise that with the jury in trying to, in fact, make the indication that there’s no way the jury in itself can be fair and impartial, especially with not only the publicity, but the publicity as it relates to the fact that the family has been compensated. And if you can begin to try to bring not only to the defense of reasonable doubt but also try to paint to the jury that this is an unfair proceeding going against Officer Porter, the family’s been paid and this is just a prosecutorial adventure or mis–. You might say, just prosecutorial extravagance, or prosecutorial extending the, the issue further.

NOOR: And so the prosecution laid out in their opening argument–and they’ve established that Officer Porter should have seatbelted Freddie Gray in, and he should have provided him medical care as soon as he asked for it. According to Porter’s own statement, which has been shown to the jury, he did neither of those. The defense is arguing that he didn’t know better. They’re saying that policy and procedure is not a priority for the police department. And that essentially is their, is one of their strongest defenses right now. And they’ve, you know, they’ve argued as such in the courtroom. What is your response? Is that–is that an effective argument considering, considering your own experiences?

PETTIT: Well, when you don’t have much to work with you have to try to work with confusion. In this instance since you have Porter already saying that he observed the condition, he communicated it to Gray and he also communicated it to Goodson, so you have an admission of culpability by Porter’s own statement. So the only way to attack that, since that was the policy and procedure to in fact seatbelt him, is to in fact say that this is not something that was clearly understood. It was not something that was clearly conveyed. He did not know beyond a reasonable doubt, which is the standard that we’re talking about, that he had that type of responsibility and that criminal liability was something that could follow.

What they’re really arguing, that this is an emergency situation, and Porter basically is a deer in the headlights and is being sacrificed by the powers that be through the use of a policies and procedures argument.

NOOR: And several times in court they have tried to shift responsibility to some of the other officers. Specifically Officer Goodson, who was driving the van. Does that surprise you at all?

PETTIT: Well, they’re trying to say policies and procedures, that Goodson had the responsibility because he was the driver. And he was told, and it was his responsibility to do something. And in criminal trials where you have multiple defendants, that’s always going to be the defense posture, to kick the football to the next guy. To throw the responsibility and the culpability, blame, to the next person. So that’s, that’s, it’s a major, major part of the criminal defense, establishing reasonable doubt, number one, and then shifting the blame to somebody else having the actual responsibility for the jury, can say how can we hold this guy when we don’t have the other guy on trial.

NOOR: And you know, in the opening statement Porter’s defense attorneys indicated that he will testify in his defense. There’s many people on the, on the–something 200 witnesses, that will be character witnesses for Porter. They said, you know, for example, he’s from the neighborhood. He wanted to give back to the neighborhood. He had no excessive force complaints. He never fired his weapon. Do you think those could be critical parts in his, in the overall, in the jury’s decision?

PETTIT: Well, of course they’re critical parts. But first of all, let me say the 200 witnesses are not character witnesses. That’s all the witnesses that had any contact with the case whatsoever. So those are what they call fact witnesses. The character witnesses are going to be very, very well limited by the court, and they should be. [Inaud.] it’s not a violent crime or violence or anything like that the only thing that’s relevant in terms of the character witness is his reputation for truth and veracity. So a lot of those witnesses, technically, are irrelevant. Although Williams has indicated that he’s got a lot, a lot of them testify.

But I’ve always argued and always said that this is a case where it’s not a slam dunk, even though the policies and procedures were quite clear in his criminal culpability. The thing is that Porter is going to be able to argue, and you haven’t even seen the main argument, and that’s going to be in terms of the, of the pathology argument, and the autopsy, as to what really caused the injury and really caused the death. Not to the fact that that’s germane to the circumstance, but it’s germane and relevant, again, to confuse the jury, and have the jury with such confusion that they say, obviously, that there’s reasonable doubt. And that’s all you need for an acquittal.

NOOR: And there have been, tensions have been high in the courtroom. Today attorney Murtha, one of the defense attorneys, was told, if you testify rather than ask questions one more time after repeated warnings, you will be held in contempt. So we’re in the first day of the second week, and there’s already been a threat of a contempt hearing, holding of contempt against one of the defense attorneys.

PETTIT: Judge Williams is a very, very stern, a very good judge, an excellent judge. I tried a murder case in front of him about two years ago. You keep hearing in the press, they said a no-nonsense judge. That’s true. And he’s warned them, initially, that he was not going to let this be some type of emotional shouting contest, that it was going to be a trial governed by the rules of evidence, and covered by law, and I expect him to [enforce that], because he can not take the chance of letting this trial get out of hand. He has got to exercise judicial control so there will be, obviously, not only the appearance but actual justice rendered in this case.

NOOR: And finally, a two-part question. What will the significance of either a guilty or not-guilty verdict in this case be on the other five cases that are still, are pending? And what impact will it have on the city of Baltimore?

PETTIT: Well, in terms of the other trials, this case will be tremendously important, because if he’s convicted and he’s still facing sentencing, which carries, obviously, jail time, then he’s going to be in a, a very–position of very, very argumentative position of having to cut a deal. The state has already indicated that he is their material witness. They would like to have him as a material witness. If they have time hanging over his head to bargain with, then they can flip him and make a material witness in the subsequent cases.

So his conviction is going to be major to the other five cases. His acquittal would also be major, because then all the lawyers have had the opportunity to watch this case.

NOOR: And they have been in court, the other attorneys.

PETTIT: They’ve got to be. And they’re going to put their game plan in a line as to what the defense did here, if in fact the defense is successful. If not they’re going to be changing their game plans, obviously, for the remaining five trials.

The impact that this has on Baltimore City, I just hope the citizens of Baltimore will look at this as something of transparency, and justice that’s never been pursued in Baltimore. We haven’t had prosecutors to go to his far. And that, in my opinion–.

NOOR: In how long, you would say?

PETTIT: Well, in major cases, in my 43 years of practicing here and over 100 police brutality cases that I’ve handled, we’ve had a couple that weren’t that well-publicized and were sort of on the peripheral. We’ve had a couple prosecuted, I think too by Mr. [name inaud.]. But to go into such a high-profile case with the dangers inherent in the prosecution by Ms. Mosby’s office, I think, is in itself a victory. And I think the transparency and seeing what we’re seeing in terms of the public being able to observe all the legal steps, to serve the whole trial and what have you, that to me in itself is a victory. And I hope in terms of your question, in terms of Baltimore City, if it doesn’t go the way people want it to go, that they take that into consideration, that we have made a giant step in terms of this prosecution regardless of guilt or innocence as determined by the jury.

NOOR: Thank you so much.

PETTIT: Thank you.

End

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