Finding a fair jury for Freddie Gray

The question may not be whether Baltimore jurors trust the police but which police they trust.

Each time the attorneys for the six officers indicted in connection with the death of Freddie Gray have raised questions about their ability to get a fair trial in Baltimore, Judge Barry Williams has demurred, saying the jury selection process will serve to determine whether its possible to assemble a panel of 12 city residents who can render a fair judgment. The Sun's Jessica Anderson sat through jury selection in a case this week that gives some sense of just how challenging that may be — but which also underscores the deeper problems Baltimore has in delivering justice every day.

When the judge in the case of a young man arrested during April's riots asked whether any of the potential jurors had "strong feelings regarding the protest and the ensuing response following the death of Freddie Gray," 21 people stood up, Ms. Anderson reported. Other questions, such as whether potential jurors would give more or less weight to police testimony, whether they had family members with past or pending criminal charges and whether they had prior knowledge of the case at hand, prompted others to rise. Eventually, attorneys for both sides agreed on 12 jurors and three alternates, though they later had issues getting all of them to show up.

If it was that hard to seat a jury for the case of Alkebulan Marcus, a 22-year-old Philadelphia man charged with disorderly conduct, failure to obey a reasonable and lawful order, and resisting or interfering with an arrest, it'll be next to impossible to field a fair panel for the much more fraught and higher profile trials of the six officers right?

Not necessarily. The courts will call hundreds of potential jurors for those trials, and the winnowing will be intense as prosecutors and defense attorneys look for people they believe will be open to their arguments. But that's nothing unique to the Freddie Gray trials, nor is the concern that Baltimore jurors will be biased against the police. That's an old story, one that has bedeviled the criminal justice system here for years.

So-called "jury nullification" — the refusal of Baltimore juries to convict even when evidence is strong — is a well known phenomenon. In 2008, the Abell Foundation studied whether Baltimore City juries were more or less likely to convict defendants than those in the suburbs, and it found a wide disparity. In Anne Arundel, Baltimore and Howard counties, juries convicted 45 percent of defendants and acquitted 27 percent. (The rest were convicted on some charges and acquitted on others.) In Baltimore City, the numbers were flipped: 23 percent convicted and 43 percent acquitted. Moreover, the research showed that jurors in the counties were 30 times more likely to convict a defendant on the most serious charge against him than jurors in the city. The report proffered a variety of possible explanations for the discrepancy, including witness intimidation and the greater likelihood that city jurors have themselves had direct contact with the criminal justice system that makes them more suspicious of it.

The degree of that suspicion was underscored by a poll released this week by the University of Baltimore's Schaefer Center for Public Policy. It, too, found wide disparities between city residents and those in the rest of the state when it came to attitudes about police and the criminal justice system. City residents were far less likely to say they believe police are doing a good job of keeping their communities safe and far more likely to believe the police treat blacks differently than whites. Perhaps most pertinent to the cases at hand, 40 percent of Baltimore residents said a family member had been treated unfairly by police, compared to 10 percent in the suburbs. Fifteen percent said they personally had been treated unfairly, compared to 4 percent in the suburbs.

Those attitudes are not a response to Freddie Gray. They are the explanation for why Freddie Gray's case struck such a chord. Amid the Black Lives Matter movement that arose from the cases of Michael Brown in Ferguson, Mo., and Eric Garner in Staten Island, the senseless nature of Gray's death brought years of pent-up frustrations to the surface and made them obvious to the rest of the world. But they weren't news to anyone involved in Baltimore's criminal justice system.

How will those attitudes affect the officers' ability to get a fair trial? It's impossible to say for sure before jurors have been brought in and questioned, but Judge Williams has so far shown himself to be notably cautious in his handling of these cases. We have every reason to believe he will be as diligent as the attorneys on either side in probing jurors attitudes to ensure they can be fair minded. There is also the possibility, and perhaps a likelihood, that one or more of the officers will opt for a bench trial rather than put his or her fate in the hands of a jury, no matter how meticulously selected members may be.

But it's also worth noting that in a case like this, Baltimore City jurors' attitudes can cut both ways. If someone with a bias against police or negative attitude about the criminal justice system slips through jury selection, how does that play out when police and prosecutors are presenting evidence against the police? Whom would such a juror distrust more? Indeed, the record shows that even in the rare occasions when Baltimore police have been put on trial, city juries rarely convict. In May, The Sun's Doug Donovan and Jean Marbella reviewed three decades of data, court records and news reports and found just five instances in which city officers faced criminal charges for on-duty actions that resulted in a death. Only one of those officers was convicted, and that verdict was overturned on appeal. In general, when the cases turned on the officers' version of events compared to that of other witnesses, juries believed the officers.

Further complicating matters in the Gray cases is the fact that they may turn on what one officer says about another. The Sun's Justin George and Kevin Rector reported last month that Officer William Porter, who is scheduled to be tried first among the six defendants, told investigators that Gray asked for medical attention while he was being transported in a police van, and Mr. Porter said he told the van's driver, Officer Caesar R. Goodson Jr., that Gray needed a medic. Officer Goodson did not provide a statement to police. But another officer who was called to check on Gray later, Sgt. Alicia White, provided an account that differs somewhat from Officer Porter's. Prosecutors have indicated that they consider Officer Porter a material witness in the cases against Officer Goodson and Sergeant White. If a juror distrusts the police, he or she may have to decide which police to distrust.

Ultimately, then, what is going to matter most — as it should — is the evidence, and how strong it is remains very much to be seen. Today, The Sun is publishing the full account of the days Mr. George spent embedded with the police officers who investigated Mr. Gray's death, and one of the most striking aspects of it is just how surprised members of that team were when State's Attorney Marilyn Mosby announced charges against the six officers barely 24 hours after receiving the police's initial report. Watching her announcement on television, one asked, "How are they going to prove it?" and another remarked, "Tough road to prove it."

Ms. Mosby had said she was conducting her own, parallel investigation using the resources of the Sheriff's Department, but she has said nothing about what it found, and as Mr. George reports, her efforts involved far less than the normal level of cooperation with the police. It is simply impossible to judge in advance how strong her case is, and we expect that, not any preconceived attitudes among Baltimore's jury pool, will decide the officers' fates.

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