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Defense set to present its case in Porter trial

Lawyers for Officer William Porter begin presenting their case Wednesday morning, and criminal defense lawyers watching the case say Porter’s team will have multiple options available to shape the narrative about what happened to Freddie Gray.

Richard M. Karceski, a Towson solo practitioner, said the defense will seek to show that while things could have been done differently when Gray asked for medical attention in the back of a police transport wagon, Porter’s actions or lack of action were not a crime.

“That’s a big leap,” said Karceski.

Prosecutors wrapped up their case Tuesday morning, at which point Baltimore City Circuit Judge Barry Williams dismissed jurors for the day and then denied a defense request to dismiss the case. On Monday, the judge ruled outside the jury’s presence that the state had committed a discovery violation by failing to turn over information about a possible preexisting injury.

Porter’s attorneys, Baltimore solo practitioner Gary E. Proctor and Joseph Murtha, of Murtha, Psoras & Lansa LLC in Lutherville, have repeatedly stated that Porter will testify in his own defense.

But observers are not sure that will happen.

“The real issue is what’s Porter going to say when he gets on the stand,” said former city prosecutor Ahmet Hisim.

It’s a common practice to reserve the ability to decide whether to testify and wait to see the state’s case, according to Jacob S. Frenkel, a former federal prosecutor. Porter’s 45-minute statement to investigators was played for the jury during the state’s case.

A good defense strategy, Frenkel said, would be to present multiple expert witnesses with differing conclusions about how Gray was injured.

“There’s nothing more powerful than saying two learned scholars have a difference of opinion,” said Frenkel, of  Shulman, Rogers, Gandal, Pordy & Ecker P.A. in Potomac.

If done effectively with short testimony, offering varying experts can create reasonable doubt in the minds of jurors, according to Frenkel.

Rebuttal experts to challenge the testimony of assistant medical examiner Dr. Carol Allan, who performed Gray’s autopsy, may allow the defense to further explore what they called her assumptions about how Gray’s injuries occurred, according to Hisim, of Jezic & Moyse LLC in Silver Spring.

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.

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.

“Dr. Allan left a big, gaping hole for [Murtha] to jump through,” Hisim said.

With court adjourning before lunch Tuesday, having the afternoon to strategize before launching into their case should be a benefit to the defense team, added Frenkel.

“You really get a chance to take a deep breath,” he said.

As a prosecutor, Frenkel said he preferred to wrap up his case close to the weekend so the jury spends a couple of days thinking about the government’s case and final witnesses.

“As the defense attorney, I always want to start as quickly as possible to begin changing the tone,” said Frenkel.