By Kevin Rector
Baltimore Police Officer Caesar Goodson Jr., the driver of the van in which Freddie Gray suffered a fatal spinal cord injury, will go to trial Thursday before a judge rather than a jury.
And, under a ruling Monday by Circuit Judge Barry G. Williams, prosecutors won't be able to present key evidence that Gray allegedly told officers "I can't breathe" during his transport.
Goodson, 46, is the second officer to elect a bench trial in the case. Officer Edward Nero was acquitted of all charges by Williams last month.
Legal experts said Goodson's decision, which came during a pretrial motions hearing in a downtown courthouse Monday, may have been made easier by Nero's acquittal, but they also noted the two officers' cases are distinct and that a bench trial comes with its own risks.
"On the one hand, Officer Goodson is putting all of his eggs in one basket in having Judge Williams making the decision," said Warren Alperstein, a Baltimore defense attorney who is not involved in the case. "On the other hand, Judge Williams certainly has demonstrated in Nero's trial that he is able to hear the evidence, apply the law and ultimately make a decision that may not be popular."
Douglas Colbert, a University of Maryland law professor who has been following the case, added, "It's always surprising when an accused person opts to be judged by the court and not by the community of jurors.
"And yet, in the relatively rare instances where police officers are defendants, they have consistently opted for judge trials _ with very good results for the defendants," he said.
Goodson faces the most serious charges of the six Baltimore police officers charged in Gray's arrest and death. They include depraved-heart murder _ a second-degree felony charge that carries a maximum sentence of 30 years in prison. He also faces three counts of manslaughter and charges of second-degree assault, misconduct in office and reckless endangerment.
Gray, 25, died in April 2015, a week after being placed in the police van, handcuffed and shackled but not wearing a seat belt. His death sparked widespread protests, and his funeral was followed by rioting, looting and arson. Initially scheduled to occur in rapid succession beginning last year, the officers' trials have been delayed by several legal challenges.
Aside from Nero, only one other officer has gone to trial _ Officer William Porter, whose trial ended in a mistrial last December after the 12-member jury was unable to reach a consensus on any of the charges against him.
It was Porter who allegedly made the comment to police investigator Detective Syreeta Teel that he heard Gray say "I can't breathe" during the fourth stop of the van, at a location where he, Goodson and Gray were alone.
Teel testified at Porter's trial that Porter provided the statement during an unrecorded phone conversation three days after Gray's arrest and prior to Porter providing his recorded statement to police. Porter did not repeat the comment in his recorded statement, and on the stand denied having ever made it.
Goodson is the only officer among the six charged to refuse to provide a statement to police. All of the officers have pleaded not guilty.
All of the officers, their attorneys and the prosecutors in the case are barred by a gag order from discussing it.
Alperstein said the exclusion of Porter's alleged statement amounted to a "home run" for the defense, as it makes it much more difficult for the prosecution to prove that Goodson was aware that Gray needed immediate medical care.
"How does the state prove that Goodson was aware of this need without Porter's statement?" Alperstein said.
Colbert said Williams' decision was "obviously a ruling for the defense," and he expects "a shifting of the prosecution's case" to other evidence that shows Goodson was aware that Gray was struggling to breathe and was injured. He noted that prosecutors have hinted at a theory that Gray was given what's known as a rough ride, and could move more toward that in light of the ruling.
"The prosecution is going to have to look for evidence elsewhere, and I expect that's what they're going to do," Colbert said. "That's what they were probably doing before this morning's hearing, but now it becomes an imperative."
It's unclear whether Williams' decision to block Porter's alleged statement to Teel will have a domino effect on other evidence in the case, experts said.
Williams denied a separate but overlapping defense motion Monday to block portions of assistant medical examiner Carol Allan's autopsy of Gray that include statements by witnesses and others that Goodson argued he would not be able to challenge through cross examination.
Williams found that statements experts reasonably rely on to reach opinions are generally admissible as the foundation of the opinion itself, even if they are not admissible as evidence.
Alperstein said prosecutors and defense attorneys are likely to clash again at trial over the ultimate basis for Allan's ruling that Gray's death was a homicide. In the autopsy, the results of which were obtained exclusively by The Baltimore Sun last year, Allan seems to make a clear reference to Porter's alleged statement to Teel.
At the fourth stop of the van, she writes, Porter "opened the doors and observed Mr. Gray lying belly down on the floor with his head facing the cabin compartment, and reportedly he was asking for help, saying he couldn't breathe, couldn't get up and needed a medic."
At Porter's trial, Allan testified that she would not have concluded Gray's death was a homicide if Goodson had taken Gray directly to the hospital after the van's fourth stop, suggesting that the officers' disregard for Gray's alleged comment at that stop that he couldn't breathe was a key factor in her determining the manner of Gray's death.
Alperstein expects prosecutors will walk Allan through her opinion again at Goodson's trial, and could "try to back-door Officer Porter's statement to Detective Teel when asking Dr. Allan how she formulated the basis of her opinion."
The defense, in response, would try to object based on Judge Williams' decision to preclude the statement, Alperstein said.
Also Monday, Williams denied defense motions to dismiss the case for violating Goodson's right to a speedy trial. He also rejected the claim that prosecutors had not fully outlined the alleged acts that constituted the crimes charged.
Monday's hearing lasted less than half an hour. A small group of protesters stood outside the courthouse with signs calling for justice for Gray.
William H. "Billy" Murphy, the attorney for the Gray family, said he is not concerned with Goodson's selection of a bench trial.
After Nero's acquittal, Murphy commended the judge for "not bending to public opinion," saying Williams "stood tall and did what he believed was just" while being "very careful" to make clear that his findings were specific to Nero's case.
On Monday, Murphy said "every case is different, and Goodson's case is definitely different from Nero's in many ways," so it should not be presumed that Williams also will acquit Goodson. Observers should allow the trial to play out, he said.
"I have a high level of confidence in Judge Williams," Murphy said. "But apparently Officer Goodson does, too."
(c)2016 The Baltimore Sun