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Joseph Murtha, the attorney for police officer William Porter, one of six Baltimore police officers charged with the death of Freddie Gray, walks to courthouse East for the third day of jury selection on Wednesday, Dec. 2, 2015 in Baltimore. Porter faces charges of involuntary manslaughter, second-degree assault, misconduct in office and reckless endangerment. The charges carry maximum prison terms totaling about 25 years. (Kevin Richardson/The Baltimore Sun via AP)

Porter’s defense lays groundwork for shifting blame

Defense attorneys for Officer William Porter presented possible alternate theories about responsibility for Freddie Gray’s death Monday morning through cross examination of the assistant medical examiner who performed Gray’s autopsy.

“I think the defense did score some points,” said Baltimore defense attorney Warren S. Alperstein after observing Monday’s proceedings in Baltimore City Circuit Court.

The exchange between Joseph Murtha and Dr. Carol Allan was at times contentious, with Baltimore City Circuit Judge Barry Williams repeatedly admonishing Murtha for testifying rather than asking questions. Williams at one point threatened Murtha with contempt if he continued.

Murtha’s questions to Allan suggested that he and co-counsel Gary E. Proctor plan to argue Officer Caesar Goodson, the driver of the transport wagon, may be responsible for Gray’s death.

“They’re now hammering home the defense theory that it would not have been Officer Porter’s responsibility to call for a paramedic,” Alperstein said.

Allan concluded Gray’s cause of death was a neck injury that she described as a “functional transection” of the spinal cord. She determined the manner of death was homicide.

Murtha questioned Allan’s theory of Gray’s injury, which she said occurred between the second and fourth stops made by the police wagon – the first stop being Gray’s arrest and the sixth stop being the Western District station where paramedics were called.

It’s important for prosecutors that the jury believe the injury occurred when Allan suggests, according to Ty Kelly, a former federal prosecutor who observed part of Monday’s proceedings.

But the jury could have a difficult time agreeing on the timing of the injury, said Kelly, of Biran Kelly LLC in Baltimore.

Allan’s report states the injury likely occurred when Gray was standing up while the van was in motion and a sudden acceleration or deceleration cause him to fall and strike his head, similar to an injury sustained by someone diving into shallow water.

Which stop?

When asked by Murtha, however, Allan could not point to any evidence that Gray stood up or that the van sped up or slowed down rapidly. When Gray was placed in leg shackles at the second stop he was slid into the van on his stomach with his head toward the front of the van and he was found in that position at the fourth stop.

Said Alperstein: “What I think the defense effectively conveyed was that there was no evidence of a rapid acceleration or deceleration of the van which was the mechanism of injury that Dr. Allan has concluded occurred.”

Porter told investigators he checked on Gray at the fourth stop but didn’t see any evidence of an injury or emergency situation. Porter said he asked Gray if he wanted a medic and relayed Gray’s request to Goodson. The video of Porter’s statement was played for jurors last week.

A Baltimore Police Department training expert also previously testified that the ultimate responsibility for care of the passenger in custody lies with the driver, Alperstein said.

Allan said if Goodson had taken Gray to the hospital or called a medic, she would not have deemed his death a homicide, and a neurologist testified Monday afternoon that had Gray received prompt medical attention, he may not have died.

Murtha also questioned why Allan did not think the statement of Donta Allen, a passenger picked up by the van at a fifth stop who reported Gray was “banging” in the van prior to the final stop, was a possible cause of his injury.

“I think there’s an argument to be made by the defense that Freddie Gray’s fatal spinal cord injury resulted from his banging his head against some part of the wagon which would be confirmed to some extent by Donta Allen’s original statement,” Alperstein said.

It can benefit the defense to be able to present several alternate theories of blame to the jury, Alperstein added.

“You never know which alternative theory is going to resonate with a juror,” he said.

Interested observers

Many of the defense attorneys representing the remaining officers were in attendance Monday to hear Allan’s testimony, likely because she will be a witness for their clients trials, according to Alperstein, of Alperstein & Diener PA in Baltimore.

“They want to hear the medical testimony,” he said. “The testimony relating to the cause of death is going to be relevant in everybody’s trials.”

The attorneys were also interested in observing Allan’s demeanor on cross examination, Alperstein said. He called her “competent and experienced.”

Kelly said Allan was a very state-oriented witness.

“I think it was difficult to get her to concede points that it should have been easy to concede,” she said.

Williams issued several warnings to Murtha to stop testifying and ask questions before mentioning contempt.

Alperstein said when an attorney is berated by the court it can often garner sympathy from jurors if they feel the attorney is being treated unfairly. A threat of contempt is usually for extraordinary behavior, which Alperstein said he did not observe Monday.

“The very essence of an effective cross examination is when the attorney is testifying in the form of asking questions,” Alperstein said.

It’s possible Murtha just needed to conclude his statements with a phrase, such as, “isn’t it?” to satisfy Williams, he said.

Kelly said Murtha’s questions teased out good information he and Proctor can refer to later.

“That is the whole point of cross examination is to lay the foundation for your closing argument,” she said.