Does the Hung Jury in Baltimore Case Indict the Whole System?

Associated Press Photo
Associated Press Photo

Police defenders will undoubtedly say “I told you so,” in arguing that the prosecutor overreached in charging the officers with manslaughter, but the hung jury this week in the Freddie Gray case may not be as cut and dried as people want to think.

Slate has an outstanding analysis of the verdict that puts the heart of the problem at the concept of “reasonable officer standard.”

Leon Neyfakh, staff writer at Slate, writes, “The judge overseeing the trial told jurors on Monday that in order to find Porter guilty of involuntary manslaughter, the most serious of the four crimes Porter was charged with, they would have to determine that the officer’s conduct on the day Freddie Gray was fatally injured reflected a ‘reckless or wanton disregard for human life,’ and was a ‘gross departure’ from what a ‘reasonable police officer’ would have done in a similar situation.”

The problem, as Mr. Neyfakh puts it, is what exactly is a reasonable police officer and how a jury is supposed to correlate the defendant’s conduct with what a reasonable officer may or may not have done under hypothetical circumstances.

Or, as critic Radley Balko put it in his Washington Post column, “Depending on how you view police culture, the ‘reasonable police officer’ standard could be quite a bit lower than the ‘reasonable person’ standard.”

The Supreme Court, in Graham v. Connor, made the determination that an objective reasonableness standard would apply to claims that officers used excessive force in making an arrest, an investigator stop or a seizure of a person. Graham held that determining the “reasonableness” of a seizure “requires a careful balancing of the nature and quality of the intrusion on the individual . . . against the countervailing governmental interests at stake.”

The key is how “reasonableness” is defined.

In this case, writes Mr. Neyfakh, “The prosecution stressed the police department’s clear and well-publicized rules, laid out in official emails and training booklets, on when to call for medical attention and when to use seatbelts on detainees. A reasonable police officer would have followed those rules, the prosecution argued, and the fact that Porter didn’t do so characterized him as a callous and careless officer. He acted unreasonably, in other words, by flouting the rules set forth by his department.”

He continues, “Lawyers and witnesses for the defense had a different message for the jury: Official department policy doesn’t matter in Baltimore, they suggested, because no one at BPD really knows it by heart or follows it to the letter. Witnesses—including several current BPD officers—testified that a number of rules that exist on paper are, in practice, routinely ignored in the department. Much more important than official rules, according to captain Justin Reynolds, is common sense, which ‘prevails over everything else’ in the BPD, he said—including general orders that it doesn’t always make sense to follow. Mark Gladhill, one of Porter’s fellow officers, testified that the seatbelt rule had traditionally been one of these formal directives that weren’t followed. Having participated in some 75 arrests in his time on the force, Gladhill said, he couldn’t remember once seeing a detainee buckled while being transported in a police van.”

That the defendant failed to seatbelt Freddie Gray, the defense argued, “didn’t make him a criminal, was the point of this testimony—it made him normal.” As the defendant’s attorney put it in his opening statement, “Officer Porter didn’t even know there was a rule. You can’t hold him accountable for what nobody did.”

As the Baltimore Sun’s Ian Duncan wrote in an his analysis, the defense “portrayed a dysfunctional police department that rushes officers to the streets without proper training, forcing them to learn as they go and follow the advice of veterans rather than standards and rules.”

Mr. Neyfakh added, “In a department where officers are guided in their actions by personal discretion and social norms rather than the rules they learned in the police academy, the defense argued, Porter could not be held criminally responsible for following the example of his peers and superiors.”

As he puts it, “This is a somewhat frightening notion, suggesting as it does that ‘other people were doing it’ is a plausible defense of misconduct. While it may be true that ‘everyone’ in the BPD routinely violates policies designed to keep the people in their custody safe, that doesn’t mean that doing so is reasonable, or acceptable.”

“The … standard is ‘what a reasonable officer would do,’ not ‘what a reasonable police officer with the Baltimore Police Department would do,’ ” said Jeffrey Noble, who served as the deputy police chief in Irvine, California, and who testifies frequently in cases involving police use of force. “If you have an agency that’s behaving poorly across the board, you can’t say, ‘We all act badly in this department, therefore what we do is OK.’ ”

As Mr. Balko put it, “There is a very obvious problem with this line of thought. An acquittal on these grounds basically tells cops that they can ignore the rules, so long as everyone else is ignoring them.”

But Mr. Balko sees a more “pernicious possible consequence.” For the most part, he explains, “the Supreme Court doesn’t determine police policies and guidelines, it only sets limits on what the police can do.”

He notes that “this is an entirely new challenge, and one that may not have a solution. The Supreme Court has long been deferential to police officers, refusing to second guess their motives, and in many contexts giving them passes for ‘honest mistakes.’”

Here the defense shifts the standard, saying that “the reasonable in the reasonable police officer standard should be defined by the culture of policing — even a really localized culture — and not by the rest of us. It’s asking that juries assume ‘typical’ and ‘reason’ have the same definition.”

This, he says, “is a really dangerous idea. It’s basically an invitation to let policing be governed by and ultimately only accountable to cop culture. It risks giving destructive policing traditions like the ‘blue wall of silence’ or ‘street justice’ the force of law. Worse, it basically puts police officers above the law — or at least more above the law than they already are.”

That danger aside, for us, the bigger problem is that enough of the jurors bought into it to hang the jury. Of course, the prosecution gets another bite as this apple and it is clear that they will have to attack this theory head on.

—David M. Greenwald reporting


About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

Related posts

43 thoughts on “Does the Hung Jury in Baltimore Case Indict the Whole System?”

  1. Tia Will


    Feaster will probably walk away from this homicide and get a job with another department unless criminally charged.”

    On another thread today, you correctly stated that I know little about the judicial system. That is part of why I frequently question and criticize our processes. In medicine, this is a large part of how we train. When we do not understand, we ask. If we think something else might work better, we challenge or suggest.

    However, it does not take much knowledge in the field of justice to understand that whether or “accidental” or not, Feaster has demonstrated his inability to serve in the capacity of public “protection”. I am not by nature punitive. He is, as we all are, innocent until proven guilty. But could he not at least be taken off the street and given a desk job where he can at least “do no harm” ….permanently ?

    1. Biddlin

      “Ramsey said on Dec. 10 that his office will not seek charges against Feaster after investigators found the shooting to be accidental. Ramsey said the shooting was likely negligent, but not criminal. He also said during the news conference that if (Andrew) Thomas had died, involuntary manslaughter would have been considered.”

      Due to the confidential nature of personnel issues, unless charged and  prosecuted, it is very common for a police officer to be “fired for cause” and go to the next county over and be re-hired, in short-order.

      Patrick Feaster is still on paid administrative leave and one can only hope that the Butte co. DA follows up.

      As I have been gathering information, with a thought towards writing a book, a motive for murder turned up in a local news item  :

      “An avenging angel with a gun” does not seem an over the top description.

  2. Barack Palin

    That danger aside, for us, the bigger problem is that enough of the jurors bought into it to hang the jury. 

    Nice try on spinning what is basically a loss for the prosecution into making it into the jurors got it wrong.  From the start it was an obvious over charging as many of us stated and now you can’t deal with the facts.    It ca just as easily be said that the jurors that did vote guilty got it wrong.  Deal with it.

    1. David Greenwald Post author

      The analysis isn’t blaming the jurors, it’s blaming the law itself or the formulation of the law here. Also, a hung jury is not a loss, it’s a question of whether they can shift their approach and get a conviction.

        1. David Greenwald Post author

          Not really. The case we just covered in Yolo last week, the defense attorney wanted an acquittal. Much of the time, a hung jury gets retried until the defendants run out of resources and they either end up being found guilty or pleading out. And you ignored your mischaracterization of the analysis which was complaining about the law, not the jury.

          1. David Greenwald Post author

            Do you agree that the standard should be a reasonable officer when in a given department, officers may not be reasonable?

          1. David Greenwald Post author

            Again, point is not the jurors, it’s the reasonable officer standard that is question.

        2. zaqzaq


          There is no problem with using the reasonable officer in that department as the standard.  Using a reasonable officer standard including California and Ohio would not be fair to the individual officer being accused of a crime.  How would an individual officer following common practices in that department know what the rules are in other police departments?  All of a sudden they are being judged by a standard that is not followed in their department.  How is that justice?  The administration is responsible for developing rules and procedures that guide police officers.  They are then responsible for training officers on the rules and then enforcing the rules.  When they neither train on nor enforce the rules it is ridiculous to claim that the individual officer has committed a crime.

          A hung jury is a loss for the prosecution.  As Tia always points out the defendant is innocent until proven guilty.  Porter is still innocent after the hung jury.  You have recently pointed out on the Guzman case that repeated trials after multiple hung juries was a victory for the defense.  Please be consistent.

          It will be interesting when we find out how the jurors voted on each individual charge.  What was the split.  Was the consensus that Porter was guilty or innocent or a more even split.  Was the disagreement based on the race of the juror?


          1. David Greenwald Post author

            “A hung jury is a loss for the prosecution. ”

            It can be a loss for the prosecution, but in my experience, it really varies. Sometimes the prosecution drops the case or plea bargains, but usually they retry and they often win on the retrial for a variety of reasons. My point in this analysis was about the law and the interpretations of the law being problematic going forward and not about the mistrial or the jury.

      1. Miwok

        Of course, the Vanguard quoting so-called journalists and an Irvine professional Witness, means this is another article based on news reports. It must be difficult for the Vanguard to write about overzealous prosecution when it involves another target, Police. Is the article FOR the prosecution, out of character for the Vanguard, and Against the Police, or sitting on the fence on this one?

        The article discusses the case in the context of these people:

        Jeffrey Noble, who served as the deputy police chief in Irvine, California, and who testifies frequently in cases involving police use of force.

        Leon Neyfakh, staff writer at Slate

        critic Radley Balko put it in his Washington Post column

        Baltimore Sun’s Ian Duncan wrote in an his analysis

        The defense is also referenced, except it the defense for the Police Officer who allegedly killed a prisoner.


  3. zaqzaq


    It is really interesting how you become pro prosecution when a police office is the defendant.  The stark reality is that the overcharging in this case would make DA Riesig blush.

    Officer Porter should have been acquitted of all charges and the only reason he was not was the denial of the change of venue motion.  How is he expected to get a fair trial when during jury selection in the courtroom the potential jurors can hear protesters chanting outside of the courthouse.  All of the jurors were aware of the case having been saturated with news on the case and the accompanied factual errors and spin by the media.  During the argument and deliberation portion of the trial last week the mayor and police chief announced that the city emergency operations center had been opened to manage the protests.  News reports including pictures of outside police agencies staging in the city of Baltimore in case of riots surfaced.  And the CEO of the Baltimore public schools sent a letter to all parents informing them that due to the potential civil unrest after the verdict all field trips and other school activities were being cancelled due to student safety concerns.  The CEO further informed parents that student participation in civil unrest would not be tolerated resulting in a complaint from the ACLU.  All of this put the jurors under considerable pressure to convict the officer.   Under these conditions how could any reasonable person believe the officer could get a fair trial?  If this case is not appropriate for a change of venue then what case would be?  I am convinced after following the news reports in this case that the officer would have been acquitted in any other venue in Maryland.

    You completely fail to mention the dispute in the evidence concerning when the neck injury occurred.  Defense experts testified that the 80% severed spinal cord would have resulted in immediate loss of body function preventing Gray from speaking or sitting up which he did at the fourth stop.  If the defense expert’s opinions were to be followed the alleged failure to provide medical aid allegation was moot as the injury occurred after Porter assisted Gray up from the floor of the van into a seated position.  Porter asked Gray if he needed a medic and when Porter could not articulate an injury and there were no visible injuries he decided not to.  But he did inform the driver and the sergeant at the scene that Gray needed to be taken to the hospital to get cleared as the jail would not take him if he claimed an injury.

    Porter also indicated that any time Gray was arrested there was a scene.  He described one instance where Gray tried to kick out the windows of a patrol car.  Just look at the arrest in this case and the drama from Gray crying out.  It made it look like he had been injured during the arrest.  From the DA’s theory of the case based on the coroner’s testimony Gray was not injured until later.  Ditto for the defense medical experts.  That means that Gray was a drama queen trying to get attention.  Sounds like the old fable about boy wh0 called wolf.

    Concerning the seat belt policies all the DA could drum up was the training at the academy and a new policy that was distributed via email three days before the arrest.  They could not show a read receipt for the email, that the new policy was discussed during each shift briefing or that any training was conducted to describe why the policy was important for suspect safety and how to properly seat belt the in custody suspects while maintaining officer safety.  If using seat belts was so important then the police could have at least trained the drivers that seat belt use was now mandatory.  It was the potential for injury to the officers which was the rationale for not using the seat belts in the van.  Porter testified that he always used seat belts in his patrol vehicle when transporting suspects.  The DA could not produce any evidence that any Baltimore police officer had been disciplined for not using seat belts in the van.  The defense was able to demonstrate that the norm for transporting in custody suspects was to not use seat belts.  Why then prosecute an individual officer for this conduct?  It would make more sense to prosecute the chief of police and mayor for misconduct in office for not insuring that all in custody suspects were transported using seat belts in all occasions.

    The real tragedy here is not the death of Gray but the use of Porter as a scapegoat for the death of Gray.  Porter was a young black officer who grew up in Baltimore.  He is exactly the type of person that is needed to diversify the police department.  He was also described as a person who did not use force but instead verbally engaged citizens and suspects to resolve issues.  There were no use of force complaints against him in police records.  He testified that had never used his firearm or baton during his time on the force.  He is exactly the new young officer that that department needs.  Through failed administration and training he now finds himself with a bulls eye on his back.

    Next time you do an article on this case do a little investigation from multiple sources instead of a liberal mouthpiece like Slate.  You should also not use the term “reporting” and instead use the term “opining” in the future.

  4. Tia Will


    The real tragedy here is not the death of Gray but the use of Porter as a scapegoat for the death of Gray.”

    And with this one sentence you have tainted the validity of the remainder of your post.  The fact that you clearly do not find it tragic that an individual who was able to run at the beginning of his time in police custody, and who ended up paralyzed, and then dead, I find to color the rest of your comments significantly…..certainly as significantly as any omission or commission of David’s reporting.

    1. zaqzaq


      David does not report, he opines.  You just conceded that issue in your post.  I provided more factual information on this case than David did in his opinion piece here.  The Baltimore mayor and police chief are significantly more responsible for the death of Gray than Porter who simply followed the normal procedure used by the Baltimore police department when transporting Gray.  He in fact demonstrated more compassion for Gray when he helped him sit in the van and asked him about his medical condition.  What message does this case send to other black men in Baltimore that might be interested in joining the police department?  Porter was a young officer that tried to use communication with the community when policing.  No claims of physical abuse prior to this incident.  Never used his firearm or baton.  This is the real tragedy.

      1. tribeUSA

        zaqzaq–some good info. here that I have not seen reported by the mainstream media.

        However I do agree with Tia that it is a tragedy that Gray died while in custody–I’m still not clear if it was a freak accident and how much responsibility the arresting/transporting officers should bear. Regarding the seat belt; that oversight is understandable as reportedly that regulation went into effect literally just a few days before Grays arrest. It still seems to me the officers should have gotton Gray to the hospital sooner, as alledgedly he had reported trouble breathing on several stops–even though arrestees might often fake a medical condition, there is still an obligation to get them to a hospital quick if they are alleging something serious like trouble breathing (let the docs sort out fact from fiction)!

        I haven’t heard anything about details of the autopsy report–I would hope that in addition to the coroner, they had also employed a top-caliber widely recognized spinal expert to do a careful post-mortem on the entire spinal area–including vertebrae, tendon, ligament, nerve and other tissue; to precisely define any prior subtle structural abnormalities or prior damage (minutes to years) to the spine prior to the fatal severance injury.





        1. zaqzaq


          There is much that you will not see in the mainstream media because they like David have an agenda on how they want to cover these types of incidents.  Creating outrage sells more papers and attracts more viewers.  One example is the Rachael Maddow show where they doctored Zimmerman’s 911 call in order to portray him as a racist to create more outrage.  The media is on an anti-cop theme now because it sells.

          In the Gray case Porter testified the only time he heard Gray state that he could not breath was when he was arrested.  According to Porter’s testimony at the fourth stop he helped Gray up from the floor of the van and asked him if he needed a medic.  Gray asked for a medic but could not describe an injury that required medical attention.  Porter also did not observe any visible injuries on Gray.  A Baltimore internal affairs detective testified that she had a phone conversation with Porter and that Porter stated that Gray stated that he could not breath at the fourth stop.  This statement was not recorded.  In a later video recorded statement Porter did not mention that Gray asked for a medic because he could not breath.  The same detective never asked him about this alleged discrepancy.  During the trial Porter testified that the detective must have been mistaken.  The prosecution bears the burden of a proper investigation.  The failure to call Porter on this alleged discrepancy during the investigation in the video taped interview is on the prosecution.

          It will be interesting to find out what the jury break down was for each charge.  I cannot fathom why we have not heard from a single juror yet unless the judge put them on a gag order until all of the trials are over.  It would be important for both sides to talk to those jurors to get a better understanding about their thought process.  Also to see if a change of venue is appropriate.

        2. Davis Progressive

          from the baltimore article: “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.”

        3. zaqzaq


          Is it unusual for the judge to not release the records of any of the jury votes or at least the final vote?  I would think that this information would be of great interest to the public.  Instead of having an open courtroom for the public to observe the proceedings the jury questioning was closed and the court has withheld this information.  If the vote is 10 to 2 for guilt it tells one story but if it is 10-2 for an acquittal it tells an entirely different story.  Could the court be withholding this information to prevent rioting if the vote was 11 to on or 10 to 2 for acquittal?

        4. Davis Progressive

          i think it’s unusual to withhold juror names, but nationwide high profile cases are also unusual.  gag orders happen, but they are relatively unusual as well.

          ” If the vote is 10 to 2 for guilt it tells one story but if it is 10-2 for an acquittal it tells an entirely different story.  Could the court be withholding this information to prevent rioting if the vote was 11 to on or 10 to 2 for acquittal?”

          i agree the split is important, but my guess is that the reason for the secrecy is to protect the integrity of the process.

        5. zaqzaq


          How does keeping the split “protect the integrity of the process”?  Knowing the split allows the public to evaluate the decision making of DA Mosby.  If it is 10-2 for acquittal the public should question why another trial?  A 10-2 split for guilt makes another trial appear more reasonable.  The jurors should be questioned on how the publicity of the case impacted their decisions with regards to a change of future change of venue motion.  If a some of the jurors later admit that concerns about how the public would receive the verdict impacted their vote the public needs to know to protect the integrity of the jury selection process.  The defense attorneys should also have this information.  It helps them evaluate their cases.  It is not fair if only the DA has it.

        6. Davis Progressive

          i meant the jury names not the result.  but part of what may be happening is usually the court will not announce the split, they may say it’s 5-7 if the judge asks the jury foreperson, but they won’t tell the direction.  the way you find out the split is talking to the jurors and if the jurors are not talking, you often don’t find out the split.

      2. Tia Will


        Porter was a young officer that tried to use communication with the community when policing.  No claims of physical abuse prior to this incident.  Never used his firearm or baton”

        I am not calling for a specific outcome for Mr. Porter. I tend to favor the least punitive outcome for the individual in any given circumstance  ( whether they wear a uniform of not ) because my concerns are about ensuring safety, not about punishing individuals for possible lapses of judgement that cause irreparable harm.

        My comment was directed at the fact that you did not seem to consider this needless loss of life a tragedy. This to me is an extremely callous stand. Is it not possible to consider this a tragedy for both of these young men and their families ?

  5. Davis Progressive

    zaq: so are you disagreeing that the reasonable officer standard was a key consideration here?  or that the reasonable officer standard is problematic?

    1. zaqzaq

      I think that the reasonable officer standard as used in the Porter trial is fair.  How would it be fair to compare the standard that is learned in the Baltimore police department for detainee care to that in another state or city where the Baltimore officer is not aware of what other police agencies are doing.  It would be more appropriate to charge the mayor, city manager and police chief with a crime for not fixing the problem when a detainee died in the almost identical situation as Gray ten years ago.  That is the biggest problem with this case.  Baltimore payed over $7,000,000 to another family ten years ago for basically the same thing.  The individual officers in that case were not charged with a crime.  This is a civil matter and not a crime.  There is not evidence that any of the officers intended to harm Gray.  It is clear that this is a politically motivated prosecution to appease the masses in Baltimore.  More so now that the current mayor is not running for re-election and the DA’s husband is now running for mayor.   This whole prosecution smells.

      1. PhillipColeman

        Taking your representation at face value the mayor, city manager, and police chief could not be prosecuted criminally. Perhaps Maryland has an especially liberally worded criminal negligence statute, but I doubt it. Nor could their successors, assuming they were aware of this festering pattern of administrative neglect.

        Where your argument would have validity is in a civil action. The detailing of historical precedent, combined with any absence of any showing of meaningful reform, follow-up, and inspection would be devastating to any counter the defense could offer. Lack of funding, the press of business in other matters, “Nobody told me,” would all be tossed to a jury, but would not be well received. Public Service leaders are supposed to be aware, and should take corrective action. Be glad you don’t live in Maryland.

        1. zaqzaq


          I agree that it is a civil and not criminal issue.  My point is that the cities leaders (Mayor, police chief, … .) created or allowed this negligent detainee transportation system that resulted in the death of Gray.  Not officer Porter.  If anyone should be charged with a crime it is the city leaders that allowed this to fester.    That goes for officer Porter and the other officers.  Normally our criminal justice system charges a person for doing something that society has deemed illegal.  In this case the officers are being charged with a crime for not doing something (seat belting Gray or obtaining timely medical assistance).  As a former police chief how would you have enforced the use of seat belts in all vehicles when transporting an in custody detainee?  How would you have insured that all officers were aware of the policy?  What training would you have instituted?  What is your opinion about Mosby’s decision to charge the arresting officers and the legality of the knife?  I see so many things wrong with the decision to charge these officers.

      2. Miwok


        I like your explanation and the CYA attitude they have to toss an officer under the bus. If jurisdictions don’t start trying the real problem makers just because they are elected (a certain local Sheriff has the same problem now) we have certainly corrupted the Justice system.

        No wonder Law Enforcement feels pressure, because they might have to arrest their own people, with cooperation from prosecution who is beholden to the same people. Talk about Whistleblowers, which are not protected for many of the same reasons.. I know.

  6. Davis Progressive

    this backs up david’s comment and my impression from the field:

    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.

    the hung jury is not generally a loss for the prosecutor in part because of the resource disparity between the prosecution and defense.

    1. zaqzaq

      That is only 70% of the trials that the prosecution retries.  Emphasis on the cases the prosecution chooses to retry.  If the prosecution dismisses 50% and pleads 25% and only retry 25% of the cases that result in a hung jury that results in obtaining a conviction in only 42-43% of the cases that resulted in a hung jury.  The plea bargains are probably for less than the original offer and the jury convictions could be for one misdemeanor if there are multiple counts with an acquittal for the more serious charges.   Thus I would not call a hung jury a win for the prosecution and would instead call it a loss.  The statistics that you site from that article are from the attorney for the Gray family who is also a Mosby supporter.  That is where the 70% conviction rate on cases that the DA chooses to retry came from.  You should know your source for the information and the motivation (spin) before you quote it.

      1. Davis Progressive

        i think this is a good discussion:

        that’s certainly my understanding based on my experience.  i think as you mentioned earlier, the split matters so not all hangs are created equal.

  7. Frankly

    Or, as critic Radley Balko put it in his Washington Postcolumn, “Depending on how you view police culture, the ‘reasonable police officer’ standard could be quite a bit lower than the ‘reasonable person’ standard.”

    God I hate crap like this.

    The high horse liberal intellectual elite infering that their definition of reasonable is the righteous one and the rest are just the ideas of social scum.

    They do the same to the military.

    The truth is the oposite.  The “reasonable” standard never has, and never will, be connected with liberal views.

    In general, until and unless you have been a cop or a soldier, you have no credibiity for criticism and only license to seek the opinion of those that are or have been.

    And by the way… everyone that claims man made global warming is real are unreasonable.

Leave a Reply

X Close

Newsletter Sign-Up

X Close

Monthly Subscriber Sign-Up

Enter the maximum amount you want to pay each month
Sign up for