Absent immunity, William Porter can decline to testify in other Freddie Gray trials
The re-trial of Baltimore Police Officer William Porter has been scheduled for June 13, 2016,according to reporting by The Baltimore Sun.
By that time the trials of the other 5 officers charged in Freddie Gray’s death will have been completed. Absent immunity, Porter therefore remains vulnerable to criminal prosecution throughout the course of those other trials, and can therefore not be compelled to provide testimony in them.
This also means that Porter’s statement to investigators shortly after Gray’s death and his testimony in his own trial will not be admissible in these subsequent trials of the other officers, as the defense counsel in the other trials would not have the ability to “confront the witness.”
The next Freddie Gray trial is to be that of police van driver Officer Caesar R. Goodson Jr., which is scheduled to begin in just two weeks, on January 6, 2016. Goodson faces the most serious charges brought against the officers, that of second-degree murder. He has also been charged with second-degree assault, two counts of vehicular manslaughter, and misconduct in office.
Interestingly, the next scheduled Freddie Gray trial after Goodson’s is that of Sergeant Alicia White. Porter, Goodson, and White are all black. Thus the first three Freddie Gray prosecutions will have been brought against the 3 of the 6 officers charged who are black.
Prosecution of the white officers are scheduled as follows: Miller, February 9; Nero, February 22; and Rice, March 9.
The prosecution itself has characterized Porter as a material witness for the purposes of the trials of the other five officers.
Indeed, Porter’s investigative interview appears to be the only stop-by-stop description of events proceeding from Gray’s arrest through to the police van’s final stop, at least that would have been available for Goodson’s prosecution. (Goodson himself made no statement, and the other 4 officers cannot be compelled to testimony in advance of their own trials, absent immunity.)
Without the ability to make use of Porter’s testimony the prosecution is likely to be facing large gaps in this timeline, gaps that can only contribute to reasonable doubt in the other officers’ trials.
Although the approximately 6-month delay for Porter’s re-trial may seem surprisingly lengthy, in fact delays of this duration are not unusual in re-trials. In the case of Michael Dunn’s shooting of Jordan Davis for example, Dunn’s first trial ended with convictions on most charges but a mistrial on murder, on February 15, 2014. Dunn’s re-trial on the murder charge, originally re-scheduled for May 2014, did not in fact begin until 7 months later, in September.
If Baltimore prosecutors wish to compel Porter to testify it will be necessary for them to offer him at least some degree of immunity from prosecution in exchange for his testimony. There are essentially two forms of immunity that might be offered: transactional immunity and use immunity.
Transactional immunity, often referred to as “total immunity,” is the broader of the two options. It essentially provides the witness with immunity from prosecution for anything associated with the alleged criminal transaction. This remains true even if prosecutors are able to develop independent evidence of criminal conduct.
Use immunity is more limited. It simply prohibits the prosecution from using the witnesses own testimony against him. If, however, the prosecution is able to develop independent evidence of criminal conduct they are free to use that independent evidence against the defendant.
Another complication in the Freddie Gray cases is that of dual sovereignty. This refers to the fact that the officers involved are potentially subject to criminal prosecution by Federal as well as state authorities. Thus even if Porter is granted the broader transactional immunity by state authorities he theoretically remains subject to criminal prosecution by Federal authorities.
Of course, it is possible that the Federal authorities may themselves grant Porter use immunity, which under Federal law would be sufficient to compel his testimony for purposes of a Federal prosecution. How this overlays with the ability of the state to compel testimony in a state prosecution is, however, beyond the scope of this author’s knowledge of Maryland law.
In yet another LOL line produced by this fiasco of politically motivated prosecution, the Sun article posted above includes a notable, and perhaps sarcastically intended, quote from defense attorney and former prosecutor Adam Ruther:
The state’s attorney’s office has some of their brightest lawyers on this case. If there’s a credible legal argument [compelling Porter’s testimony], I’m sure they will find it.
Really? Because their performance to date has been so very impressive? Or perhaps damning with faint praise? Only time will tell, I suppose.
Only. Time. Will. Tell.
Attorney Andrew Branca and his firm Law of Self Defense have been providing internationally-recognized expertise in American self-defense law for almost 20 years in the form of blogging, books, live seminars & online training (both accredited for CLE), public speaking engagements, and individualized legal consultation.
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