Prior back injury alleged as officer's trial in Freddie Gray case moves forward

Week 2 of the trial against Officer William Porter, charged in the death of Freddie Gray, starts Monday.

Prosecutors failed to disclose information that Freddie Gray told a police officer about a prior back injury the month before he was arrested in the incident that led to his death.

Judge Barry Williams declined Monday to declare a mistrial, as the defense requested, but ruled that the prosecution had committed a discovery violation and that the information could be introduced by Officer William G. Porter's defense, as the trial entered its second week.

Prosecutors say Gray died because Porter and five other officers failed to seat-belt Gray in the back of the police transport van where he was injured in April, and failed to call for a medic when he asked for one.

Before Williams' surprise ruling, the day's proceedings had been dominated by medical testimony about Gray's injuries from the April incident — which included a broken neck and a severe spinal cord injury.

The state medical examiner who performed Gray's autopsy took the stand and stood by her finding that Gray's death was the result of a homicide, even as Porter's attorney suggested it was simply a "theory" that is unsupported by evidence.

Dr. Carol Allan testified that while officers might not have intended to kill Gray, his death resulted from police actions and wasn't purely accidental.

She and a second medical expert for the prosecution — Dr. Morris Marc Soriano, an Illinois neurosurgeon — both testified that Gray's life could have been saved had Porter called for a medic when Gray first told him he needed one.

"His brain would have likely survived" had he been given a breathing tube sooner, Soriano testified. Instead, Gray suffered a "hunger for air" as his condition deteriorated from the shifting of one of his vertebrae and the pinching of his spinal cord following a high-energy impact in the back of the van, Soriano testified.

Allan testified that Gray was injured between the second and fourth stops of the van, and that she wouldn't have ruled the death a homicide had Porter or the van's driver, Officer Caesar R. Goodson Jr., sought medical care for Gray at the fourth stop.

She said her findings did represent a theory, but one based on her medical expertise and information from witnesses, including the testimony Porter gave to police investigators.

Soriano agreed with Allan's finding as to the timing of the injury, testifying it was "perfectly consistent" with Gray being unable to lift himself up or breathe regularly when Porter found him on the floor of the van at the fourth stop.

Joseph Murtha, Porter's attorney, sought to sow doubt in jurors' minds about the medical experts' findings. He questioned Allan on the National Association of Medical Examiners' guidelines for determining the manner of death during an autopsy and whether her ruling was consistent with those guidelines.

At times, Murtha ran afoul of the judge, who told him several times not to "testify" but to ask questions. When Murtha suggested at one point that Allan should have found that Gray's manner of death was an accident, Williams warned him that he could be found in contempt.

Murtha asked Soriano whether Porter would have been able to tell that Gray was in intense pain. "Not necessarily," Soriano said.

Murtha also asked Soriano if he could testify that Porter had "extensive knowledge" of Gray's injuries. Soriano said he could not.

Raising the idea of a "pre-existing condition," Murtha asked the experts whether their testimony would change if they knew Gray had suffered a previous back injury.

Soriano said his testimony likely would not change unless the injury was specific to Gray's cervical column. Allan said she had not noticed any evidence of a previous back injury during her autopsy of Gray.

In cross-examination, Murtha asked Allan about a statement given to police by a man who was arrested and placed in a different compartment of the van during its fifth stop, before it arrived at the Western District station.

Donta Allen told police that he heard Gray "striking his head as if he wanted to hurt himself" four or five times in the back of the van, Murtha said. Allen, who could not see Gray at the time, has since recanted that statement.

Dr. Allan said she does not believe that is what Allen heard, because it would have been inconsistent with the injury occurring between the second and fourth stops. She said the noise could have been caused by Gray having a seizure from a loss of oxygen to his brain.

Allan's ruling that Gray's death was the result of a homicide is considered a crucial element of the prosecution's case. It was delivered to Baltimore State's Attorney Marilyn J. Mosby's office the day before Mosby announced charges against Porter and five other officers in Gray's arrest and death.

Gray, 25, suffered his injuries while in police custody after being arrested the morning of April 12. His death a week later sparked protests against police brutality. Rioting and looting that broke out on the day of his funeral led to the National Guard being brought into the city and Mayor Stephanie Rawlings-Blake instituting a weeklong nightly curfew.

Porter, 26, has pleaded not guilty to involuntary manslaughter, second-degree assault, misconduct in office and reckless endangerment. The other five officers also have pleaded not guilty.

The defense has said Porter showed concern for Gray's well-being but did not believe Gray was seriously injured until police arrived at the Western District police station and found Gray unconscious in the back of the van.

When Porter realized Gray was seriously injured, the defense says, he immediately provided assistance and a medic was called.

The case has received national attention in part because citizen video showed Gray screaming during his initial arrest, his feet dragging beneath him as he was placed in the van.

Allan testified Monday that Gray was not injured during his arrest but in the van.

Allan was first called by prosecutors Friday and returned to the stand Monday morning.

Soriano testified against Baltimore police in 2010, at the civil trial of three officers accused of failing to seat-belt a detainee who suffered a serious neck injury and died.

In that case, officers were alleged to have given Dondi Johnson a "rough ride," causing him to suffer a fracture of the C4 and C5 vertebrae — the same bones Soriano testified were damaged when Gray was injured.

No criminal charges were filed in that case, but the officers lost a $7.4 million civil judgment. An appeals court later lowered the amount.

The city has agreed out of court to pay a $6.4 million settlement to Gray's family, who have been in attendance at Porter's trial. The settlement did not acknowledge any wrongdoing on the part of the officers.

Angelique Herbert, one of the paramedics who responded to the Western District police station and found Gray unresponsive, took the stand late Monday.

Herbert testified the initial call was for someone with an "injured arm." When she and her partner arrived at the police station and were pointed to the van in the parking lot, however, they saw Porter and another officer each holding one side of Gray's head as Gray leaned backward in the van, Herbert testified.

"He was looking straight, but he wasn't moving," she said, and he appeared completely unresponsive.

"That alarmed me," she said. "I was like, 'Something must be wrong. I don't think he's breathing.'"

When she verified that he wasn't breathing, she said, she yelled out for "additional manpower" to respond to the station.

Gray, she said, had no pulse.

Murtha had asked Allan earlier in the day whether she was aware that an EMT administered Narcan to Gray.

Emergency technicians use Narcan when they believe someone is suffering an overdose of an opioid, such as heroin. Herbert said that "the first thing that crossed my mind was overdose."

Allan said she was aware of that, but added that the Narcan had "no effect" on Gray. Allan also testified that a urine sample taken from Gray upon his initial admission to Maryland Shock Trauma Center tested positive for marijuana and opioids.

It is unclear how many more witnesses the prosecution intends to call. After its last witness, the defense will follow with an unknown number of its own witnesses. Porter's attorneys have indicated that he will take the stand, though that is subject to change.

Also Monday, a medical emergency prevented one of the 12 jurors from reporting. One of the four alternate jurors is now on the panel.

Williams has said the trial will conclude no later than Dec. 17.

krector@baltsun.com

twitter.com/rectorsun

Copyright © 2019, The Baltimore Sun, a Baltimore Sun Media Group publication | Place an Ad
90°