I was taught that the number one reason why criminal convictions are reversed on appeal are due to mistakes in instructions to juries. What Judge Barry Williams tells the jury before they deliberate this week in State v. William Porter, the first of the Freddie Gray trials, is therefore crucial to a just result.
One thing State's Attorney Marilyn Mosby has successfully (and wrongfully) done is create in the public mind the idea that failing to use a seat belt is a criminal offense. She mentioned the police failure to seat belt Gray over and over again in her speech announcing criminal charges. Michael Schatzow and Janice Bledsoe, the trial prosecutors, have harped on it repeatedly with every witness.
But it's not a crime. In fact, in Maryland the failure of persons injured in an auto accident to use seat belts isn't even negligence on their part. Yet Mosby uses lack of a seat belt as the crux of her criminal case, and so do people who want the police department to be held "accountable" for Gray's death, not accepting the fact that accountability came through a civil settlement.
The seat belt issue is now even more critical to Mosby's case after defense experts persuasively testified that Gray was not suffering from his injury at any point when officers were talking with him. At the very least they cast more than a reasonable doubt upon the medical examiner's claim that the police were talking to a man with a broken neck and did nothing about it. That jettisons the failure-to-get-medical-help as a crime. Mosby is left with homicide-by-no-seat-belt.
I don't know on what basis Judge Williams decided to permit the seat belt issue to even be discussed in the case against Porter. My guess is that it was a novel issue for him, applying civil law to a criminal case, and he decided to let the jury decide. But he can't pawn the decision off on the jury until he first explains the law to them. What will he say? If he gets it wrong, and the jury convicts, Porter will have to wait on an appeals court to get justice.
I have yet to see the courage I expected from Judge Williams in his rulings. He should have changed the location of trial, but didn't. He should have tossed the assault charge after the state's case because they presented zero evidence Porter assaulted Gray. Will he allow the jury to think -- as many in the public think or want to think -- that failure to put a seat belt on Freddie Gray could be considered a criminal act?
It's possible that even if Judge Williams allows them to think that, they will acquit anyway, on the basis that the van driver had the responsibility for seat-belting his passengers. The right result for the wrong reason.
But here's hoping we get the right result for the right reason.