BALTIMORE, Md. (Nov. 30, 2015) — From the day news got out that Freddie Gray had died, the purported goal of everyone involved — from Gray’s family to city officials, to the news media, to the people of Baltimore — was to determine what happened to the 25-year-old man from the West Side.
But the truth has been difficult to pin down, and now answers to those questions will be in the hands of a 12-person jury to be selected beginning Monday.
What remains unanswered is how Gray suffered a fatal spinal cord injury while in police custody. He died in the hospital one week after his April 12 arrest.
An independent investigation by Baltimore Prosecutor Marilyn Mosby’s office, along with the medical examiner’s determination that Gray’s death was a homicide, gave prosecutors what they needed to file criminal charges against six Baltimore police officers in May.
Each of the six officers charged in connection with the death of Gray is being tried separately. The first in court is Officer William G. Porter, 25, who joined the force in 2012.
Porter is charged with one count of involuntary manslaughter, second-degree assault, misconduct in office and reckless endangerment.
One looming question: Can these officers get a fair and unbiased jury in a city rocked by protests and riots?
The Sixth Amendment to the Constitution guarantees a defendant’s right to a fair trial and public trial proceedings.
Secrecy continues to surround the case, but the court has its reasons.
The gag order
On October 14, Judge Barry Williams banned prosecutors and the officers’ defense attorneys from discussing the case outside their legal teams, saying, “There is a substantial likelihood that certain forms of publicity, such as extrajudicial statements by the parties involved in this case to members of the press or media, could impair the rights of the Defendant, the State and the public to a fair trial by jury.”
But before the court issued the gag order, CNN learned the defense’s strategy will focus on what happened during a 40-minute ride in a police van when Gray was injured.
The defense told CNN it will contend Gray’s death was tragic — but an accident. Gray, though handcuffed and shackled, struggled to his knees and pitched forward when the van came to a stop, causing the injuries that killed him, the defense says.
“They’re going to argue exactly that, this was a normal stop, or maybe he just fell down on his own while the vehicle was moving, or maybe it was a combination of forces of Mr. Gray falling down or losing his balance at the same time the vehicle was stopping,” said Andrew Alperstein, a CNN legal analyst who is not involved in this case.
Richard Waites, an attorney, psychologist and trial consultant based in Washington, said he’s seen a trend of judges being guarded with how much information they allow the public to know before a trial begins.
He attributes the trend, at least in part, to communication technology, from text messaging to tweeting, that can disseminate information in seconds and potentially taint a jury pool.
“One of the things that I am seeing, not just in Baltimore but in other places, is an overuse of gag orders,” Waites said. “The proper use of a gag order is to protect a party’s rights of some kind. To protect information from going out to the public because it might cause problems — I don’t think that’s a proper use of gag orders.”
Acknowledging the public’s right to know at the end of the gag order, Williams writes, “Nothing in this Order shall be construed to limit any rights of the media or the public.”
Riding the bench
The gag order means journalists and the public can access only filed court motions, along with the proceedings in open court.
At pretrial hearings for the six police officers, some observers noted extensive bench conferences between the parties that can’t be heard by those in the gallery. What is said remains a mystery, and although sidebars are considered on the record, written transcripts can’t be currently reviewed by the public or media — a move suggesting an attempt to strike a balance between preserving a fair trial for defendant Porter and the public’s right to know.
Cameras are not allowed in Maryland criminal trial courts. In our modern age of electronic media, a large number of high-profile state trials permit journalists in the courtroom to transmit notes of the testimony to their readers or viewers as it happens via laptops or smartphones. But this is not the case in Maryland without the express permission of the presiding judge, and it won’t be allowed in Porter’s trial.
Reporters can take notes, of course, and later report, but they are barred from emailing or texting trial information in real time. The judge’s motivation for this rule is unclear.
So can the trials be fair?
For all the precautions taken to restrict and control information related to the case, Porter’s trial is still taking place only seven months after Baltimore was hit with violent rioting and looting following the death of Gray. Buildings were burned and a citywide curfew likely affected many in the jury pool.
Waites, who is not involved in the Porter trial, believes those in the community should still be able to be fair and impartial if selected for the jury.
“They won’t remember the details of the police activity or the details of the arrest of Freddie Gray or the events that happened after that, when the van driver called for backup, which are the events that involve Mr. Porter,” he said.
Additionally, Waites believes Porter will be able to get a fair trial because he predicts “a lot of the anger and active rage about what happened has sort of subsided a great deal.”
Jurors won’t be sequestered
As far as getting that fair jury, Waites says an extensive jury questionnaire would be the best way to learn about opinions that jurors have already formed and biases they hold based on their life experiences.
A recent defense motion states that jury selection, known as voir dire, has been extremely limited by Williams. At the final pretrial hearing in the case on Tuesday, nothing was said about a jury questionnaire.What was announced was that 75 to 80 potential jurors will be in the pool for jury selection, and they will not be sequestered despite a defense request.
Jury selection also is a public proceeding in our nation’s courtrooms.
In this case starting Monday, initial questions for potential jurors will take place in open court, but further individual interviews will be conducted in a conference room, on the record, but outside the earshot of anyone else.
Many high-profile trials have some individual juror questioning, inside the courtroom, so the public can hear jurors’ answers, especially on issues of pretrial publicity — how much a juror already knows about a case and why he or she can or cannot be fair. Other prospective jurors are kept in a separate room so they cannot become tainted by other jurors’ answers. Sensitive issues with jurors are always discussed privately.
In these particular trials, where police officers are the defendants, Waites said the “perfect” juror for each side may have a role reversal.
Usually, he said, the state wants jurors that are law enforcement-oriented and “by the book.” But here, that profile may be the ideal juror for the defense. Waites added not all police-oriented jurors may sympathize with these defendants, and attorneys will want to scrutinize people who are pro-law enforcement because some of these people “will hold these police officers to a higher standard, and very often other police officers will do that.”
One type of prospective juror the court should be wary of, Waites said, is the juror who wants to become famous by being on such a high-profile jury. A book or television appearance can be very appealing to some people.
One way to weed out “stealth jurors,” as they are called, according to Waites, is by looking at their social media profiles. They can give a wealth of information, he said. Nearly two-thirds of American adults, 65%, use social networking sites, according to Pew Research’s October 2015 Social Media Usage Report.
Prospective jurors can go from wanting to be on the jury to not wanting to be on the jury, and some can actually be frightened that they could become targets in the community based on their decisions to convict or acquit, said Waites. This may or may not be a reason to be dismissed from jury selection.
Waites also said that picking a jury in Baltimore is driven by the judge, not the attorneys on either side. Williams, he said, is “going to want to do whatever he can to protect the defendant’s rights during jury selection, so he will give the defense some leeway in their asking questions.”
What if an impartial jury can’t be selected?
If, during the course of jury selection, it is determined that a fair and impartial jury cannot be selected, the judge has several options, Waites said, including bringing in more potential jurors. A change of venue to another city in Maryland does not have to be the immediate decision.
On the other hand, while the Sixth Amendment guarantees a defendant’s right to a jury of his peers, Porter can, up until jury selection begins, opt to forgo a jury and ask for a bench trial where Williams alone would be both judge and jury.
Waites said this can have pros and cons. Porter and his attorneys will really have to look at Williams through the same filter they use to find that “ideal” juror, because although a judge’s role is to be fair and impartial, the reality is “a judge is a person, too, and he is susceptible to the same influences that jurors are.”
Williams summed up his belief in the residents of Baltimore County in his denial of the defense motion for change of venue.
“The issue then becomes whether the citizens of Baltimore are capable of listening to the facts as presented in the courtroom in coming to a decision based only on those facts and the law presented to them by the court. … To automatically assume that the citizens of our city cannot provide the defendants with a fair and impartial trial would be quite a leap.”