In the Zimmerman trial one could at least reasonably argue that Zimmerman made a tactical, if not legal, error in placing himself in an ambush zone, and got himself ambushed. In Porter’s case it looks increasingly like he did nothing, literally nothing, wrong in his interactions with Gray.
For illustrative purposes, let’s consider the most serious of the charges for which Porter is being tried, involuntary manslaughter (essentially the same analysis applies to the lesser charges of second-degree assault, misconduct in office and reckless endangerment, as well, but I only have so much time for blogging).
First let’s note that even the prosecution concedes that Porter committed no affirmative act that caused Gray harm. They are therefore attempting to convict him of involuntary manslaughter based on a failure to act, an “act of omission.”
It is, indeed, possible for a failure to act to provide the basis for involuntary manslaughter, but only where: (1)(a) there existed and (b) the defendant was aware (or should have been aware) that there existed a legal duty to act, (2) the defendant was aware the circumstances raised the legal duty, and (3) the defendant knew or should have known that the failure to meet their legal duty presented a substantial and unjustifiable risk to the victim’s life.
Note that all of these elements are necessary to reach a verdict of guilty on a charge of involuntary manslaughter.
In Porter’s case the prosecution is arguing that he violated two legal duties: (1) Porter failed to buckle Gray into the van, and (2) Porter ‘s alleged delay in providing medical care to Gray.
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(1)(a) Did there exist a legal duty to buckle Gray into the van?
The prosecution is arguing that the Baltimore Police Department’s new rule that arrestees must be buckled into police vans, enacted days before Gray’s arrest, created imposed legal duty upon Porter, and that the failure to meet that legal duty constitutes a crime.
(But) One of today’s expert witnesses for the defense was Police Chief Timothy Longo, of Charlottesville VA, who among other things was a member of the Baltimore Police Department for 18 years, including command positions, and also an independent monitor for the Department of Justice consent judgment for the Cincinnati police department.
Chief Longo testified that the new seatbelt rule, indeed any simple departmental policy, could not create such a legal duty, if only for the simple practical reason that police officers are required to use their considerable discretion in the application of any departmental rule to the real-world circumstances they encounter. Longo noted that officers must use their discretion all the time, and routinely “run afoul” of official directives doing so. The only requirement is that are able to articulate a reasonable basis for doing so. Longo went on to testify that in his expert opinion Porter’s conduct in not belting Gray was, in fact, “objectively reasonable.”
We can recall from Porter’s own testimony yesterday that he was indeed able to articulate a reasonable rationale for not entering the van the buckle in Gray, including the very tight quarters that would require him to place his sidearm within Gray’s reach.
Longo also noted that even if there existed such a legal duty, that duty fell upon other officers. ...
In addition, Longo testified that orders such as the seatbelt directive were grounds only for internal administrative discipline, not criminal liability. He reportedly stated numerous times that broken general orders should be dealt with administratively, not criminally (resulting in an objection from the prosecution).
Conclusion: It seems extremely unlikely that a reasonable jury could unanimously conclude that the prosecution has proven, beyond a reasonable doubt, that there existed a legal duty for Porter to buckle Gray into the van.
