Freddie Gray case legal analysis: jury selection could get complicated

First question in Officer William Porter trial: Can an impartial jury be found?

Judge Barry Williams told those assembled in the courtroom for the first trial of a police officer charged in Freddie Gray's death that he recently allowed another Circuit Court judge to be seated on a jury.

His point: Don't assume anything about who is qualified to be a juror.

Jury selection in the high-profile case began Monday when 75 residents were interviewed en masse and then in private outside the courtroom. Not much was made clear about the final makeup of the jury; the process could take days.

Legal experts said the process is complicated and that certain answers to questions wouldn't necessarily disqualify jurors, much less automatically exclude them. All of them, for example, said they had at least some familiarity with the events surrounding Gray's death.

While the process appeared to be a slow slog, experts said it is a critical first courtroom battle. Defense attorneys have sought to move the trial out of Baltimore, arguing it would be impossible to seat an impartial jury. Williams has denied that request, saying the jurors are screened for bias during the selection process.

Depending on what happens in the coming days, defense attorneys could renew their request to move the trial or raise the issue on appeal if the officer is convicted.

Officer William G. Porter is standing trial on charges of manslaughter, second-degree assault, misconduct in office and reckless endangerment in the death of 25-year-old Gray, who died a week after suffering a severe spinal injury in the back of a police van after being arrested in April. Five other officers also have been charged, with trials scheduled over the coming year.

Porter has pleaded not guilty.

The defense may seek to show that the jury pool is hopelessly biased. If that's not possible, the attorneys will prompt jurors to express hesitations about their impartiality for the appellate record, said local defense attorney and former prosecutor Warren Alperstein, who watched the proceedings on Monday. He is not involved in the case.

"It's on. ... It's absolutely on," Alperstein said. "The defense is going to want to make a record of every possible issue."

The prosecution, in some ways, has the opposite challenge, said attorney Steven H. Levin, a former federal prosecutor who is now a defense attorney. He said prosecutors simply seek to establish that a juror can be unbiased; any additional information could create an avenue for the defense to raise a challenge.

"As a prosecutor, you're trying to just find a juror who will say he or she can be fair and impartial," Levin said.

He said the prosecution's job may be easier in this case, noting a recent Baltimore Sun/University of Baltimore poll that showed 63 percent of Baltimore voters support the way Baltimore State's Attorney Marilyn J. Mosby has handled it. (Only 38 percent of voters statewide do.)

The jury selection process plays out over several stages.

On Monday morning, the judge asked the first panel of 75 people questions to establish the basics of what they know about Gray's death and the rioting that shook the city afterward. He also asked about their previous interactions and relationships with law enforcement.

Williams and the lawyers for both sides then took some of the jurors outside the courtroom for more questioning Monday afternoon.

The answers to the first set of questions from the judge aren't likely to disqualify a potential juror, University of Maryland law professor Douglas Colbert said. Jurors could be disqualified after additional questioning.

For instance, if a prospective juror said he or she had been the victim of a crime, Colbert said the judge would want to understand more about the crime and any interaction with the police.

"There will be follow-up questions, both for details and to learn whether any prior experience would impair your ability to be fair and impartial," said Colbert, who has been following the case and was in court Monday.

The in-depth questioning of individual jurors and any arguments between the lawyers will likely take place out of public view, to protect the anonymity that Williams has granted the jury and to allow the lawyers to candidly raise objections.

Once information on potential jurors has been gathered, the attorneys can raise challenges to anyone they think won't be able to hear the evidence and come to a fair decision.

Maryland judges have wide latitude in deciding how to rule, experts said.

The lawyers then have one final chance to remove people from the jury: their peremptory challenges. In Porter's case, Williams has ruled that each side will have a limited number of challenges, or strikes, which can be used to eliminate someone for almost any reason.

Arnold M. Weiner, who represented former Baltimore Mayor Sheila Dixon in her 2009 embezzlement trial, said that because defense attorneys can only eliminate potential jurors — rather than choose the ones they would prefer to be seated — they have to make sure the most biased are kept off the panel. That's especially true in high-profile cases, he said.

"You're trying to isolate the most objectionable," he said.

While Williams declined to move the trial before interviewing potential jurors in the city, he did leave open the possibility of taking the case to another jurisdiction if an impartial panel cannot be seated.

Colbert said he is optimistic a city jury can be found. Handling the case in Baltimore will give the eventual verdict greater legitimacy, he said — especially if the jury reflects the racial make-up of the city.

"One way to ensure that a community accepts a jury's verdict is for the jury to reflect the entire community's diversity," he said.

iduncan@baltsun.com

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