Mistrial might not hurt prosecutors in Officer William Porter case

Mistrial might not hurt prosecutors in Officer Porter case

The deadlocked jury in Officer William G. Porter's trial raised questions last week about prosecutors' approach to the case, but research on hung juries suggests that the mistrial will not hurt their chances of convicting him.

When juries cannot reach a unanimous verdict and prosecutors retry the case before another jury, they win about 70 percent of the time, researchers at the National Center for State Courts found — the same percentage for a first trial.

In the coming days, Baltimore prosecutors face a number of critical strategic decisions — including the possibility of offering a plea deal to Porter — as they seek to use him as a witness in cases against five other officers.

But many lawyers expect Porter to face a second trial in the death of Freddie Gray. By then, prosecutors and defense attorneys will have carefully reviewed details of the trial that ended Wednesday to determine which punches they landed and where they stumbled.

William H. "Billy" Murphy Jr., the Gray family's attorney, said prosecutors should be able to go into a second trial prepared to more aggressively attack Porter, who testified in his own defense.

"They can recast their entire cross-examination of him," Murphy said. "Now they have videotape of everything he said."

Porter, 26, is charged with involuntary manslaughter, second-degree assault, misconduct in office and reckless endangerment in Gray's arrest and death. He has maintained his innocence, as have the other officers charged in the case.

It is not clear why the jury in Porter's case could not reach a verdict, or how many jurors favored acquittal or conviction on each charge. The judge handling the case ordered the jurors' identities kept secret and did not release records of any votes the jurors might have taken. Lawyers in the case are subject to a gag order.

Researchers have examined why juries sometimes cannot agree. While the Porter case is unusual because he is a police officer accused in a death, it also included factors — ambiguous evidence and complex legal questions — that can leave jurors in disagreement, according to the National Center for State Courts.

The case against Porter centered on his alleged failure to take action, an unusual focal point in a criminal case. Prosecutors said he did not follow Police Department rules on placing seat belts on those arrested and seeking medical care if requested. Defense attorneys argued that Porter did not know how badly Gray was hurt and that he acted as other officers would reasonably have done. They also challenged crucial medical evidence.

The National Center for State Courts report, published in 2002, remains the most comprehensive study of hung juries, said Paula Hannaford-Agor, a jury researcher at the center and one of the study's authors. Researchers gathered data about hung juries from 30 court systems and then scrutinized about 400 cases in Washington, New York, Los Angeles and Phoenix to figure out why a trial ends in a hung jury.

"We got unbelievable amounts of cooperation," Hannaford-Agor said.

Jury deliberations are secret, so the research team spent months gathering survey responses from jurors as cases ended in an attempt to piece together why they were unable to agree.

Researchers found that it was rare for juries to deadlock. For every 10,000 felony cases charged in the courts they studied, just 16 ended in a hung jury, the researchers found. That is partly because the vast majority of cases end with guilty pleas, but even among cases that go to trial, only 6 percent end in deadlock.

Nine of the 30 counties had information on what happened after a mistrial was declared because of a hung jury. Researchers reported that in a third of those cases, the defendant underwent a second jury trial; a few others were retried before a judge. In the remaining cases, charges were dismissed, the defendant pleaded guilty or the result was unclear from court records.

Sometimes, defendants can secure favorable terms from prosecutors eager to obtain a conviction. For example, Nazr Williams, a Baltimore teen charged in a fatal stabbing of a 15-year-old at the Ravens Super Bowl victory parade in 2013, ultimately pleaded guilty to second-degree murder after an earlier mistrial, but under a plea deal served only the 19 months and 18 days he had spent in jail as the case moved through the courts. When the initial jury deadlocked, 11 of the jurors wanted to acquit Williams and the twelfth believed he should be found guilty.

Baltimore State's Attorney Marilyn J. Mosby said at the time that there were problems with the credibility of the lone witness in the case and that other witnesses had not come forward.

Prosecutors might seek to bargain with Porter because a deal could make him available as a witness in the trial of Officer Caesar R. Goodson Jr., who drove the van in which the medical examiner concluded Gray suffered a fatal spinal injury, and who faces the most serious charge, second-degree murder.

But Nicholas Panteleakis, a local defense attorney who is not involved in the Porter case, said the officer is unlikely to want to plead guilty to a crime.

"Porter's thinking of his career," Panteleakis said. Any admission would jeopardize Porter's chance of working as a police officer in the future.

Prosecutors and Porter's lawyers met late in the week to discuss a new trial date, but nothing has been put on the court calendar.

In a typical Baltimore mistrial, it can take years to get back into court. That means witnesses can disappear or get skittish, hurting prosecutors' chances of proving the allegations.

But the Baltimore state's attorney's office has shown that it is possible to win a conviction in a high-profile case — even years after charges were filed.

When two men were charged in the near-beheading of three young members of their extended immigrant family, a jury initially deadlocked. Then, after guilty verdicts in a second trial, the case was overturned on appeal. In the intervening time, a key witness was jailed in Mexico, accused in a separate murder. But almost a decade after the 2004 slayings, one of the men was convicted in a third trial; the other pleaded guilty.

Panteleakis, who represented one of the defendants in that case, said prosecutors are unlikely to face such difficulties in retrying Porter.

"Most of the witnesses are either professional witnesses like experts or police officers," he said. "This isn't like a typical case where it's a 20-year-old person who's afraid of testifying."

Trials that end with a hung jury are expensive and frustrating for the courts and the public. The National Center for State Courts research was motivated by growing concerns in the late 1990s that juries were not up to the job of deciding complex criminal cases, Hannaford-Agor said.

At the time, Washington juries deadlocked on at least one charge in almost a quarter of cases, a phenomenon that had been attributed to black female jurors refusing to convict black men at the height of the drug war. Researchers found little evidence to support the idea that race predicted when a jury would deadlock, although on surveys hung jurors rated the law as being less fair.

Whatever the causes, there was growing interest in doing away with the need for juries to reach a unanimous verdict, a shift seen as a way to drive down mistrial rates.

Amy Dillard, a professor at the University of Baltimore School of Law, said the idea of demanding a unanimous verdict is centuries old.

"Unanimity gave the assurance in criminal cases of proof beyond a reasonable doubt and the jury was speaking the mind of the populace at large," she said.

Porter's attorneys have questioned whether he could get a fair trial in Baltimore if jurors feared that voting to acquit would trigger rioting like that seen in April. Baltimore Circuit Judge Barry G. Williams determined after quizzing jurors that they could be impartial, but the issue could surface again before a retrial.

Dillard pointed to one of the more famous fictional accounts of jury deliberations as a reminder of how seriously jurors usually take their task.

"When you look at something like '12 Angry Men,' what you see in that is the holdout for not guilty ultimately over time turns the tide," she said. "The idea is that the people who are holding out are holding out for a reason, not because of a bias or hard-headedness or a personality disorder."

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