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Jury in Officer Porter trial was one vote from acquittal on most serious charge

Porter jury split revealed: 11-1 to acquit on manslaughter

The jury in the trial of Baltimore Police Officer William G. Porter was one vote from acquitting him of involuntary manslaughter in the death of Freddie Gray, the most serious charge he faced, according to sources familiar with the deliberations.

Judge Barry G. Williams declared a mistrial because the jury deadlocked on all four charges last month. Jurors were two votes from convicting Porter of misconduct in office, and more divided on the charges of assault and reckless endangerment, sources said.

How the jury voted has not been revealed previously, and the judge ruled that jurors' names should not be revealed.

Legal experts say the information is critical to understanding the process now playing out as prosecutors and Porter's defense attorneys prepare for his scheduled retrial in June. The information could also help shape legal strategies in the pending cases against the other five police officers charged in Gray's arrest and death in April.

Prosecutors and Porter's defense attorneys are barred by a gag order from discussing the case. When reached by The Baltimore Sun, the attorneys declined to be interviewed.

One juror said some on the panel in Porter's trial were driven to tears during deliberations and afterward. The juror agreed to be interviewed by The Sun but asked to remain anonymous because Williams requested that panel members not discuss their experience. Sun reporting corroborated the juror's account of the votes.

The jurors had to vote unanimously to convict or acquit Porter of any of the four charges he faced, and their inability to reach a verdict weighed heavily on their minds, the juror said. While deliberations turned tense at times, the juror said the panel members were "heartfelt in their duty."

"I was very touched by the passion that many jurors brought to their arguments," the juror said.

In addition to the final 11-1 split in favor of acquittal on the involuntary manslaughter charge, sources said the jury split the following ways:

•On second-degree assault, jurors voted 8-2 in favor of acquittal with two undecided.

•On reckless endangerment, they split 7-3 in favor of conviction with two undecided.

•On misconduct in office, jurors split 10-1 in favor of conviction with one undecided.

"This was the vote that was on the board when the jury conceded to deadlock," the juror said. "Had we continued discussions, there's great likelihood that the numbers could have switched, but I couldn't say which way."

Members of the panel had changed their votes multiple times during the deliberations, the juror said. A few more jurors wanted to convict Porter of manslaughter at the start of the deliberations but changed their minds, the juror said.

The jury was composed of four black women, three black men, three white women and two white men.

Legal experts say that a juror's right to speak after a trial is protected by the Constitution and that Williams' request likely had a chilling effect.

A second juror, attorney Susan Elgin — the only juror to be publicly identified — previously told The Sun she wanted to discuss the jury's deliberations but could not because of Williams' request. She declined to comment for this article.

Williams spoke to the jury after the mistrial, but it is unclear what information about their deliberations, if any, he shared with prosecutors and defense attorneys.

Williams cannot comment on pending cases, a court spokeswoman said.

When Williams declared the mistrial, he said the jurors had "clearly been diligent" in their deliberations. After he dismissed the jurors, they were quickly escorted from the courthouse and driven away in court-provided vans before reporters could ask them questions.

Gray, a 25-year-old black man, died in April after suffering a severe spinal cord injury in police custody. His death sparked widespread protests against police brutality, and his funeral was followed by rioting, looting and arson.

All six police officers charged in Gray's arrest and death have pleaded not guilty. Four were suspended without pay; the other two, who are charged with misdemeanors, were suspended with pay.

Porter, a 26-year-old officer on the force since 2012, was the first to go to trial.

Prosecutors, who consider Porter a witness against the other five officers, filed motions asking the court to compel him to testify. The matter is pending before the Maryland Court of Special Appeals, the state's second-highest court, which issued a stay and scheduled a hearing for March 4.

The intervention of the higher court has thrown off the aggressive timetable initially set for the trials of the six officers between December and March. A decision by the appellate court could take months.

Prosecutors say Porter failed to secure Gray in a seat belt when called by Officer Caesar R. Goodson Jr., the driver of the van in which prosecutors allege he suffered the fatal injury, to check on him. They also allege that Porter failed to call for a medic when Gray asked for one.

The prosecution's medical experts said Gray was not hurt when he entered the van, that he suffered the neck injury before the stop where Porter checked on him, and was later pulled from the van at the Western District police station unconscious and not breathing — in part because of Porter's inaction.

Porter, who took the stand in his own defense, said that he did not believe Gray was seriously injured when he checked on him and that officers rarely secure detainees in seat belts in transport vans. Still, Porter said, he told Goodson and Sgt. Alicia White that Gray would need to go to the hospital in order to be admitted to Central Booking.

Medical experts for the defense testified that Gray likely suffered his injuries after the stop where Porter checked on him.

Williams told the jurors that in order to find Porter guilty of manslaughter, they would have to find that he acted in a "grossly negligent manner" and that his conduct was a "gross departure" from what a "reasonable police officer" would do in a similar situation.

Williams said the charge of misconduct in office would require a finding that Porter had "corruptly failed to do an act required by his duties," and that it was "not a mere error in judgment" but involved an "evil motive and bad faith."

"You must apply the law as I describe it," Williams told the jurors. He told them they "should not be swayed by sympathy, prejudice or public opinion," and should consider others' opinions but not surrender their own "honest opinion."

During their deliberations, jurors "presented their stances" to each other, referred back to evidence presented in the case and to Williams' instructions about the charges, and looked through their own notes from the trial, according to the juror who agreed to be interviewed.

The juror declined to discuss the points of contention in the panel's deliberations.

At one point, the jurors asked the court to more clearly define "evil motive" and "bad faith," but were told that "the court has provided all of the information it can."

The way in which juries split on individual charges, as well as the specific issues that divided them, can affect subsequent decisions by prosecutors and defense attorneys, including whether to retry a defendant, drop the charges, or offer or accept a plea deal, experts said.

Jurors often begin deliberations with an initial vote. Paula Hannaford-Agor, director of the Center for Juries Studies, said that vote can be more instructive than the final tally. She said the initial size of the "minority faction" of jurors — those voting against the majority position — is more predictive of whether a subsequent jury might also be unable to reach a unanimous decision, according to her research.

"If you've just got one or two people who are initially holding out, they are much more likely to capitulate," she said. A larger minority faction in the initial vote is harder to overcome.

Still more useful would be information about the most heavily disputed theories in the case, and those issues the jurors agreed on, Hannaford-Agor said.

"What are the competing arguments that are being made in the jury room? What seemed to resonate with people? What gave people pause?" she said.

Gerard P. Martin, a veteran defense attorney and former federal prosecutor who is not involved in the cases, said prosecutors must be heartened by the fact the jury was leaning toward conviction on the lesser charges. He said he does not believe prosecutors will be deterred by the final vote because they likely understood that securing a manslaughter conviction would be difficult.

Prosecutors could amend the charges but have given no sign that that is their intention. Martin said the defense should see more reasons for optimism.

"All they need is one to say 'no,'" he said. "I would hang in there if I were the defense lawyer."

Attorneys for the six officers had argued before Porter's trial that an impartial jury could not be seated in Baltimore because city residents had been exposed to publicity about the case and might fear further unrest if the officers were acquitted.

Williams rejected that idea. In December, the judge, prosecutors and Porter's attorneys questioned about 150 potential jurors over two days before selecting a 12-member panel.

The jurors — all of whom indicated that they were familiar with the case — were not supposed to talk to anyone about the case during the trial. They were not supposed to discuss the case with each other until they began deliberating.

Hannaford-Agor said she was not surprised that jury deliberations in the Porter case turned emotional.

The fact people across the country are following the proceedings, she said, likely created an "additional weightiness" around the decision in the jurors' minds.

"A lot of jurors really feel like they've failed when they can't come to a decision — that this was something they should have been able to do and they just failed to do it," she said.

krector@baltsun.com

jfenton@baltsun.com

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