Officer Caesar R. Goodson Jr., the next Baltimore police officer scheduled to stand trial in the arrest and death of Freddie Gray, has challenged the admissibility of key evidence in the state's case against him — including portions of Gray's autopsy and a disputed statement by a fellow officer that Gray said, "I can't breathe," while he was in their custody.
Goodson, the driver of the transport van in which prosecutors say Gray suffered a fatal spinal injury, faces the most serious charges in the case, including second-degree depraved heart murder. It carries a maximum sentence of 30 years in prison.
He also faces manslaughter, second-degree assault and misconduct-in-office charges.
Circuit Judge Barry G. Williams has scheduled a pretrial hearing Monday to consider Goodson's motions and others filed in the case, the court said Wednesday. Goodson's trial is set to begin Tuesday with jury selection.
Goodson's attorneys have argued in a written motion that a comment Officer William Porter allegedly made to Detective Syreeta Teel during an unrecorded telephone conversation on April 15, 2015 — that Gray said he couldn't breathe — is inadmissible hearsay. Porter denied making that comment at his own trial, and Goodson's attorneys argue that it represents "subterfuge" on the part of prosecutors who want to introduce the statement only to impeach Porter after he again testifies to the contrary.
"The State intends to rely on this 'fact' — as it did throughout Officer Porter's trial — to argue that Mr. Gray should have been given prompt medical attention after telling Officer Porter at the 4th stop that he could not breathe," wrote Goodson's attorneys, Matthew Fraling and Andrew Graham. "There is a problem with the State's theory: No admissible evidence exists to establish that Mr. Gray told Officer Porter at the fourth stop that he could not breathe."
Prosecutors, in their response, said Porter's testimony is being sought for its broad relevance. They said the disputed statement is "inextricably intertwined" with permissible testimony related to the interactions of Goodson, Porter and Gray at the stop in question.
Porter has been compelled to testify under limited immunity that prevents his testimony from being used against him at his own retrial. His first trial ended in a hung jury and mistrial.
In a second motion, Goodson has argued that portions of assistant medical examiner Dr. Carol Allan's autopsy of Gray that reference individuals' out-of-court statements should also be excluded from trial, either as hearsay or because Goodson will not have a chance to confront the individuals who made the statements in court.
Any of Allan's opinions that "rely on such hearsay" also should be excluded, they argued, including the autopsy's full, three-page "Opinion" section.
Prosecutors dismissed those arguments as a complete misstatement of the law, which they argue allows for expert witnesses to testify to the information they used to reach their opinions, without speaking to the truthfulness of that information.
The witness statements in Allan's autopsy report will not be submitted "as true accounts by persons who never testified," prosecutors wrote. "Rather, her report would be admitted into evidence with the witness statements therein being offered as facts upon which Dr. Allan reasonably relied in formulating her opinion."
In addition to the motions challenging the admissibility of evidence, Goodson's attorneys also have asked that the charges against their client be dismissed entirely for two reasons: that his right to a speedy trial were violated, and that the prosecutors failed to articulate what crime was committed.
Gray, 25, died April 19, 2015, a week after his arrest. His death sparked widespread protests against police brutality, and his funeral was followed by rioting, looting and arson. All six officers charged in the case have pleaded not guilty. One, Officer Edward Nero, was recently acquitted.
Porter's alleged comment to Teel and Gray's autopsy were also challenged by Porter's attorneys during his trial — with attorney Joseph Murtha peppering Allan with questions about the weight she gave to a range of witness statements when reaching her conclusion that Gray's death was a homicide.
At one point in Porter's trial — which ended without a verdict after a 12-member jury could not reach a consensus on any of the charges against him — 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. The suggestion was that the officers' disregard for Gray's alleged comment at that stop that he couldn't breathe was a key factor in Allan's determination of the manner of death.
Porter testified in his own trial that he only heard Gray say, "I can't breathe," at an earlier stop, when Gray was asking for an inhaler, and that Gray only asked for a medic and to be helped up off the floor of the van at the fourth stop. Porter testified that he did not believe Gray was actually injured at the time. He said Teel must have misunderstood his comments when he spoke to her on the phone, before agreeing to provide a recorded statement to police.
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The time frame for when Gray suffered his fatal injuries in the van could play an important role in Goodson's case. An injury between the second and fourth stops, as Allan has concluded, would mean Goodson had multiple opportunities to call for help after Gray was injured. A later injury, between the fifth and final stops of the van, as some defense medical experts testified to in Porter's trial, would limit the degree to which Goodson interacted with Gray after he was injured.
David Jaros, a law professor at the University of Baltimore who has been following the cases, questioned the legal merit of Goodson's argument to block the autopsy.
"Experts are allowed to make a determination about what happened, based on what they reasonably rely on — and that means they can rely on hearsay and otherwise inadmissible testimony," Jaros said.
Goodson's attorneys can try to undermine Allan's opinion by arguing the prosecution never proved the validity of a witness statement she relied on to reach her opinion, Jaros said, though the "problem with that is they are ultimately being forced to litigate the truth of that statement, even though it's not being admitted for its truth."
Jaros also questioned Goodson's challenge of Porter's statement to Teel, though he said it "had more legs" for the fact that the statement was not recorded. Had it been, it would almost certainly be admissible, he said.