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Should a Baltimore officer testify against his colleagues in Freddie Gray case? Officer in Freddie Gray case shouldn’t be treated as both witness and defendant, his attorneys argue
(1 day later)
Maryland’s highest court will hear arguments Thursday on an appeal that could determine the fate of the six trials in the Freddie Gray case. Attorneys for William G. Porter on Thursday sought to convince Maryland’s highest court that it would be unconstitutional to force the Baltimore police officer to testify against colleagues who also are charged in the death of Freddie Gray.
Attorneys will argue over whether Officer William G. Porter should be forced to testify against other colleagues also charged in the case, despite the fact that he is awaiting retrial in June. During arguments before the Maryland Court of Appeals, attorney Gary Proctor said that the officer should be treated either as a witness or as a defendant. To treat him as both would compromise Porter’s right to a fair trial, he said.
Prosecutors say forcing Porter to testify is necessary to secure convictions against officers charged in the case, but it’s a move that Porter’s attorneys argue violates his Fifth Amendment right against self-incrimination. “They want to have their cake, and they want to eat it too,” Proctor told the seven judges in the wood-paneled chambers in Annapolis.
The hearing before the Maryland Court of Appeals is the latest drama in the Gray case and presents a legal question never before seen in the state: Does the type of immunity prosecutors are offering Porter in exchange for his testimony sufficiently protect the officer against self-incrimination? But the state has argued that Porter’s account is key to the prosecution’s case against his colleagues and has promised that anything he said would not be used against him during his retrial. Just because Porter is a defendant, prosecutors said, doesn’t change the fact that he was also a witness to the tumultuous events leading to Gray’s death.
Gray, 25, suffered a severe neck injury inside a Baltimore police van in April before dying one week later. His death sparked protests and riots before Baltimore City State’s Attorney Marilyn J. Mosby announced charges against six officers involved in Gray’s arrest and transport. Porter’s status as a witness “does not expand or contract with the filing of a charging document,” said Carrie Williams, a prosecutor in the state attorney general’s office who argued the case on behalf of Baltimore prosecutors.
[Who was Freddie Gray? How did he die? And what led to the mistrial in Baltimore?][Who was Freddie Gray? How did he die? And what led to the mistrial in Baltimore?]
Porter, whose first trial ended December with a hung jury, is set for retrial in June. But prosecutors want to call him as a witness against the other five officers scheduled for trial before him. Prosecutors have said they will not use Porter’s testimony against him during his retrial. The court’s ruling could ultimately determine the strength of the prosecution’s cases­ against several of the officers charged in Gray’s death. City prosecutors have previously said that their cases would be “gutted” without Porter’s testimony.
Porter’s attorneys contend that the immunity statute prosecutors are relying on applies to witnesses but not defendants awaiting trial. Forcing Porter to testify would endanger his right to a fair trial and make him vulnerable to any federal prosecution being considered in the case, his attorney’s said. They called the state’s request for Porter’s compelled testimony “constitutionally repugnant.” The judges asked pointed questions of both sides during Thursday’s hearing, but it was unclear what the court will decide or when it will issue a ruling. However, the court, which must issue a decision before the end of its term in September, is expected to act quickly as any delay would further hold up the officers’ trials, which have been postponed because of pending appeals.
“Porter’s rights are not disposable,” his attorneys wrote in a brief to the court. “Porter should not be treated as the State’s pawn in the cases of his co-defendants.” Baltimore prosecutors contend that the six officers who face charges in the case acted callously and violated department policy, leading to the fatal neck injury that Gray suffered inside a police van April 12. The 25-year-old died a week after his arrest, and the death sparked protests and riots in the city.
But prosecutors say Porter is far from a pawn. And any additional evidence the state seeks to use against him at his retrial would come with a “heavy burden” of showing it didn’t stem from his immunized testimony. Porter, whose first trial ended in December with a hung jury, is scheduled for a retrial in June.
A Baltimore Circuit Court judge ruled in January that Porter would have to testify against two of his fellow officers — Caesar Goodson Jr. and Alicia D. White — but not against the other three — Edward M. Nero, Garrett E. Miller and Brian W. Rice. The Court of Appeals’ ruling would determine whether Porter must take the stand against any or all of the officers.
[Judge declares mistrial in case of officer charged in Freddie Gray death][Judge declares mistrial in case of officer charged in Freddie Gray death]
“Porter is no different than any of the countless witnesses over the centuries to whom the government granted immunity in exchange for their compelled testimony,” the Maryland State’s Attorney’s Office wrote on behalf of Baltimore prosecutors. The “State has chosen to use one of the many tools in its tool box to prosecute the officers charged in the death of Freddie Gray.” The appeal presents an unprecedented legal question in the state, the attorneys told the court, with little case law elsewhere in the country to guide the matter.
Oral arguments are scheduled to begin at 10 a.m. in Annapolis. It is unclear when the court will issue a ruling in the matter. “This is the first time that we’ve really had a defendant as a witness,” said Judge Lynne A. Battaglia.
Porter’s attorneys contend that the immunity that prosecutors would offer should not apply to someone with a pending homicide trial.
Subjecting Porter to be a witness at five trials, Proctor argued, would allow prosecutors to learn details that could be used against the officer at his own trial. Even if the material wasn’t used directly, it could still influence the thought process and strategy that prosecutors would employ against Porter as a defendant.
“What is known cannot be unknown,” Proctor said. “Not testifying is the only guarantee that they got what they got by their own ­devices.”
But prosecutors told the court that any additional evidence the state seeks to use against Porter at his retrial would come with a “heavy burden.” The state would have to show at a hearing that the material didn’t stem from his immunized testimony, Williams said.
“Sooner or later we must all sit down to a feast of consequences,” Williams said, citing Robert Louis Stevenson. That consequence, she said, was to painstakingly prove evidence came independent of Porter’s immunized testimony and “it’s a risk that the state has to evaluate.”