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Freddie Gray Trial: Porter’s Re-Trial Set for June 13

Freddie Gray Trial: Porter’s Re-Trial Set for June 13

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.

Caesar Goodson (l.), Alicia White (r.)

Caesar Goodson (l.), Alicia White (r.)

Prosecution of the white officers are scheduled as follows:  Miller, February 9; Nero, February 22; and Rice, March 9.

Garrett Miller (l.), Edward Nero (m.), Brian Rice (r.)

Garrett Miller (l.), Edward Nero (m.), Brian Rice (r.)

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.

–-Andrew, @LawSelfDefense


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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Comments

Bitterlyclinging | December 22, 2015 at 10:04 am

Lavrenti Beria, aka Marilyn Mosby, will have to work some hefty magic here.
Angela Corey might be available to give her some pointers.
“All laws are my laws, sayeth the Queen.”

“The state’s attorney’s office has some of their brightest lawyers on this case. If there’s a credible legal argument, I’m sure they will find it.”

I guess that’s a northern lawyer’s way of saying “well bless her heart!”

Well played, sir. Well played.

Interesting that they saved all the white guys for last.
Not sure what to make of it. Perhaps they wanted to test the complicity of the waters first?

Or perhaps getting the trials of the non-whites “out of the way” first they could get more damning testimony from them, since their fate would have been determined… no more jeopardy.

Of course, the mistrial of Porter would throw a monkey-wrench in this strategy.

One thing is for certain – the order of the trials cannot be an accident.

    Char Char Binks in reply to Twanger. | December 22, 2015 at 10:29 am

    I agree with all you said. Saving them for last also keeps them under threat longer.

    Ragspierre in reply to Twanger. | December 22, 2015 at 11:12 am

    “One thing is for certain – the order of the trials cannot be an accident.”

    Of course they can. I’m not a criminal law guy, but I doubt very much that prosecutors set the dates (or have any influence on them past some weak procedural ploys) for trials.

    I expect that would be what in Texas is the administrative law judge, and that by random selection.

    You can do the probabilities.

      platypus in reply to Ragspierre. | December 22, 2015 at 1:18 pm

      You are correct on the procedure usually employed in most judicial districts in this country. The trap door word is usually.

      Here in WA state, this situation could (and likely would) be taken over by the chief judge of the district. This would most likely be done so that no complaint could be made due to lower level administrative personnel making decisions (which they normally do).

      At some point, there is always something that can disrupt the normal routine for whatever reason TPTB deem it necessary, don’t you agree?

        Ragspierre in reply to platypus. | December 22, 2015 at 1:28 pm

        My default position is never to assume the deepest, darkest motives WITHOUT evidence.

        I think my track record is pretty good in terms of believing in our system (while not being naive).

          Gremlin1974 in reply to Ragspierre. | December 23, 2015 at 5:14 am

          Given the cities recent history, were I the Admin. Judge, which is apparently who sets trial dates in these cases and assigns judges, I would put the white cops last just to have the most time between the “negative public outcry” (i.e. riots) and the trials that are most likely to spark that unrest again. Especially if I expected the cases to not go well for the prosecution.

          Not racism just pragmatic. But pure speculation on my part.

    HandyGandy in reply to Twanger. | December 22, 2015 at 11:25 am

    Actually there is a reason for the order, and race has nothing to do with it. Porter goes first because they need his testimony.

    Then they go in order of difficulty of conviction. The easiest first.
    All the politics points to that.

    They are hoping to get guilty verdicts before they get not guilty verdicts. That will lesson the impact of the not guilty.

    They are hoping to hear that the future jurors hear about the guilty verdicts and it makes the future jurors more likely to vote guilty.

      Early guilty verdicts also increase the likelihood of the later defendants pleading guilty in a plea-bargain arrangement.

      The rioters would likely cry racism and riot again if say only Goodson (the driver, who happens to be black) were convicted while the white cops were acquitted (even though Goodson as the driver bore the most responsibility and, if anyone actually is at fault, he’d be the one who should pay the price).

      The prosecution’s best chance for getting at least one white scalp (to appease the mob) is to get an early conviction on Goodson (and/or Porter and/or Alicia White), at which point there’s a good chance one of the white officers would chicken out and plea-bargain.

      Milhouse in reply to HandyGandy. | December 22, 2015 at 4:53 pm

      They really think Goodson will be easy to convict on those ridiculous charges?! If so they must have some really good evidence that they’re keeping secret!

        Gremlin1974 in reply to Milhouse. | December 23, 2015 at 5:19 am

        Frankly at this point I am convinced that Mrs. Mosby is functionally mentally ill. There is no way they are gonna get unanimous verdicts on Goodson for any of the major charges, the best will be the misconduct charge and I wouldn’t hold my breath on that one.

    Milhouse in reply to Twanger. | December 22, 2015 at 4:50 pm

    The purpose of this entire exercise is not to convict anyone, it’s to arouse and maintain black rage into next November. For that Mosby wants not convictions but acquittals, and ideally she wants white policemen acquitted in the summer, which is riot season. You don’t get good riots in the winter, and in any case whatever happens this winter will be forgotten by next winter. So putting the white policemen’s trials last gives a greater chance of riots when they are acquitted, and of those riots’ effects still being felt in November.

      “For that Mosby wants not convictions but acquittals, and ideally she wants white policemen acquitted in the summer, which is riot season.”

      The last trial, that of white police officer Brian Rice, is scheduled to start March 9, and is likely to have been completed prior to the vernal equinox–and thus still in winter.

      –Andrew, @LawSelfDefense

        I did say “ideally”. Ideally for Mosby this whole episode would have happened next year, so she wouldn’t have to worry about dragging it out. As it is, she’s done her best, and will just have to hope for more delays, or that this will maintain the rage until another case can be found or manufactured to carry it through until November.

          Understood.

          But it’s infinitely easier to gestate an entirely new #BLM event from whole cloth than it is to drag out a series of trials already in the works.

          If they need another Freddie Gray, they’ll just make another Freddie Gray. They’ve got, literally, thousands of willing candidates with little higher purpose in life.

          –Andrew, @LawSelfDefense

    ConradCA in reply to Twanger. | December 24, 2015 at 11:58 pm

    Maybe the thought they could flip the blacks who would be loyal to their race and use them to convict that racists white officers.

The States Attorney’s office fired their brightest lawyers when Mosby was elected. Those that didn’t leave before hand.

So what they really have are the brightest of the idiots.

“Use immunity” was the term I was looking for in a previous post.

But, IIRC, and it was more then 20 years ago. Both Poindexter and North were convicted after getting use immunity and both had their convictions overturned. It is a dangerous tool which can wind up turning on you.

While I think the State Attorney’s office might give use immunity, I’m pretty sure that DoJ lawyers will be pushing as hard as they can to not grant it.

I do think it would be funny, if Porter did get use immunity and Goodson was acquitted and Porter got convicted but his conviction was overturned. I would like to see the look on Mosby’s face if that happened!

Mr Branca , I have seen commenters who stated that since Porter testified in his own trial , he has given up the right not to have to testify in other trials . Can I get some clarification on that . I believe that if there is some way he can be forced to testify, this judge will pull it out of his hat

    HandyGandy in reply to dmi60ex. | December 22, 2015 at 12:41 pm

    Put it in perspective. I have seen a lot of lawyers. Some prosecutors, some defense attorneys some prosecutors who were defense attorneys, some defense attorneys who were prosecutors. A lot of experienced people who have said he has not waived his right. In the Baltimore Sun to the NY Times. All said he has not waived his fifth amendment rights.

    Who do you think is right? All of them or one troll.

    Char Char Binks in reply to dmi60ex. | December 22, 2015 at 2:29 pm

    Phelps is very sure of himself, and he makes some convincing arguments, but I think he’s wrong about this.

Maybe they put the three arresting officers last because they realized they would thoroughly deconstruct their case against them . Example Schatzow said; Freddie was up shaking the van at second stop and injured later . In other words he has practically admitted the first three officers did nothing to injure Freddie , and the illegal arrest thing should be out the window .

Question would the illegal arrest go to a jury or would that be a judges ruling , seems like it would involve more questions of law and precedent than facts.

    ConradCA in reply to dmi60ex. | December 22, 2015 at 2:00 pm

    Is Mosbey still claiming that the arrest was illegal because the knife was legal under state law? I recall that Gray was arrested because the knife was illegal under Baltimore city law. Hard to believe that they haven’t fixed this error.

      Char Char Binks in reply to ConradCA. | December 22, 2015 at 2:42 pm

      All the charges are meritless. They must be trying the cases in order of those with the least demonstrably-false and inflammatory publicity to the most. They don’t need the knife anymore; that was just to get the ball rolling.

      Milhouse in reply to ConradCA. | December 22, 2015 at 5:45 pm

      She hasn’t claimed anything in a while. The question didn’t come up at Porter’s trial because he was not involved in the arrest. She doesn’t have to say whether she’s still running with the knife theory until one of the arresting officers is tried.

    Twanger in reply to dmi60ex. | December 22, 2015 at 4:31 pm

    The legality of the knife was dropped, because it was in fact illegal. So the prosecution couldn’t use it for an “illegal arrest” claim.
    Same thing with the “rough ride” whining that was used to kick this all off. No mention of it. They must have zero proof.
    Of course, they have little proof on other claims.

    CalFed in reply to dmi60ex. | December 22, 2015 at 11:23 pm

    “In other words he has practically admitted the first three officers did nothing to injure Freddie”

    I think that issue has already been put to rest. The ME testified that her opinion was that the spinal injury occurred between the second and fourth stop. That seems like a pretty clear admission that the arresting officers had nothing to do with the injury.

Does anybody know if Goodson will have a different judge than Porter?

After being railroaded through a farce trial, the proper response would be to tell them to fornicate themselves with a sideways chainsaw…

Doesn’t the defendent’s lawyer normally have to tell the prosecutor his client will testify to X if granted immunity, in order to get it? And since X in this case would be different than Porter’s original testimony, it would leave him open to charges of perjury (I presume). So Mosby would have to grant immunity to Porter for his actions in transporting Grey, his (supposed) perjury, AND get the Feds to offer the same, in order to compel him to take the stand, right? (All of which would be rather difficult if you consider the high probability that Porter was telling the truth in the first place)

As I recall, in the Oliver North case, congress granted unconditional immunity with the anticipation that North would then happily roll over for them and point the finger of blame at POTUS/VPOTUS, instead of taking the blame himself and pointing to the CIA. i.e. they failed to get an agreement to the contents of the testimony before granting immunity, so they were SOL when North told the (presumable) truth. Which was why he got off when criminal charges were filed against him using his immunized testimony, a fairly large no-no from a furious scorned group of dems.

Here is a scenario which just occurred to me.

Let us assume they do not grant Porter immunity.
Let us assume that Porter takes the stand and pleads the fifth.
Let us assume that Williams rules that Porter waived his 5th amendment rights.
Porter declines to testify. Judge holds him in contempt. They throw him in jail for the night.
Next day Judge asks Porter if he is willing to testify. Porter asks if the Judge will hold him in contempt. Judge says Yes. Porter testifies.

Now for the question. Porter’s lawyer takes a transcript of his testimony to the appellate court. He argues that Porter did not waive his fifth amendment rights. Since he was forced to testify by the court, he now has defacto immunity.

Assuming the appellate court rules he did not waive his rights. Are they likely to buy his immunity argument?

HandyGandy I could see this judge pulling something along those lines. I could see 6 mistrials and Mosby going back to the well on each one. Until the media calls for a halt ( and they won’t) I could see that happening.

@Andrew: “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.” ”

This is Baltimore — where the impossible is possible. Porter can be granted “use immunity” for purposes of the other trials. The sight of Porter taking the Fifth on the stand would certainly boost the prosecutions case against the other officers.

Mosby can also claim Porter is unavailable — and have his cross examined testimony read in. The fact that the new defense attorneys won’t get to examine Porter would normally be controlling and the testimony would not be allowed. But this is the strange judicial world that is Baltimore.

    Milhouse in reply to dystopia. | December 22, 2015 at 5:39 pm

    Do you have actual reason to believe that that would fly in a Baltimore court, or are you just expressing a general prejudice against them?

      dystopia in reply to Milhouse. | December 22, 2015 at 5:55 pm

      Let’s see: (a) no change of venue despite the threat of riots (b) jurors exposed to chanting protestors and (c) a judge who tells jurors to compromise, (d) a prosecutor who tells rioters we heard your chants and (e) novel legal theories of criminal culpability. There is lot’s more.

      Yes I am just wildly guessing.

        Milhouse in reply to dystopia. | December 24, 2015 at 6:52 pm

        None of these except (c) have any bearing on the matter, and as far as I know (c) hasn’t been confirmed. If it’s true, then you’re probably right, but it may not be true.

    CalFed in reply to dystopia. | December 22, 2015 at 11:13 pm

    “The sight of Porter taking the Fifth on the stand would certainly boost the prosecutions case against the other officers.”

    If Porter indicated an intention to take the fifth, I do not believe a trial judge would allow the Prosecution to call him for the sole purpose of having the jury watch him take the fifth.

Goodson faces the most series charges

Serious.

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?

Well, if he’s a former prosecutor in their office then he knows them and may very well mean what he says sincerely. They’re the brightest lawyers in the department, and if a credible argument to be made they’ll make it. Their performance to date may not reflect on their quality but on the material they have to work with. They did their absolute best against Porter, and in fact did better than they could ever reasonably have hoped; they managed to convince at least one juror that he did something wrong, when the facts seem to show clearly that he didn’t. If a top chef manages to turn out something barely edible out of rotten ingredients, that doesn’t reflect poorly on his skill, it reflects very well; a lesser cook could not have turned those ingredients into anything at all.

Mr. Branca, would it have been possible for the prosecution to “immediately” retry Porter, delaying the other trials sequentially? If so, I would suggest that the reason that they did not do so is that the jury was hung 11-1 for not guilty. They could see the writing on the wall and the risk of an early not guilty verdict was not worth having Porter available to testify. Scheduling his retrial for after the others keeps him on unpaid leave months longer at which time the prosecution drops the charges. No way they would drop the charges, even with an 11-1 for not guilty, prior to having shots at the others.

    Well, anything is POSSIBLE.

    The norm in MD, as in most states, is that the trial dates are set by an administrative judge whose sole job is pretty much managing a calendar. It’s not managed by the prosecutors and the trial judge (absent usual modest adjustments for conflicts and such).

    As I mentioned in my post, a 6 month delay for re-trial is not unknown, though don’t ask me why, it’s not like the parties are likely to develop new evidence.

    I try to refrain from speculating without evidence, and I’ve no evidence whatever on how the jury was coming down when it finally hung.

    –Andrew, @LawSelfDefense

I have to say that I’m surprised that the jury split hasn’t leaked out yet.

    Ditto. Then again, a juror would have good reason to stay shut up if they voted Not Guilty on all charges. BLM and associated screaming idiots would make their lives a living hell. The probability of an 11:1 Not Guilty split (in theory) means only one of the jury would have reason to buck the judge and leak.

Ok, maybe I am being hard headed or just obtuse, but how in the name of Pete can Goodson be charged with 2 counts of Vehicular Manslaughter when only one person died?

JackRussellTerrierist | December 23, 2015 at 5:37 am

🙂 “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.”

guffaw 🙂

Dang. I still want the jury vote count. Any reliable leaks, hints rumors, etc.? (yeah, that’s a bit of an oxymoron, but I still want someone to dish on this subject 🙂 ).

It would be interesting and informative to know how the jury in the mistrial was split as to the 4 charges Porter faces. Since the judge has imposed a gag order there is supposedly no way for anyone, particularly Mosby, to find out. Is there any “extra-legal” way for Mosby to get that information? It could greatly influence the thinking of the prosecuters.

Gremlin1974 Well Goodsen gets charged with 2 counts because he was driving two vans at the same time. . The smooth one for Donta Allen and the other reckless lets kill Freddie side of the van .

holdingmynose I’m sure the lawyers will be given the breakdown so as to facilitate any plea deals that Porter would want to entertain, and or Mosby decisioning for another trial . They are under gag order, so it shouldn’t get out from them. . I would imagine someone , somewhere will leak it, we just won’t be able to verify it .
I would imagine with the lack of evidence, Porter is not likely to go for a deal . If all the others walk , I can not imagine she would try Porter again , but it is a social justice trial , Remember Porter is not on trial , the system is..

    Gremlin1974 in reply to dmi60ex. | December 23, 2015 at 1:38 pm

    Frankly I am surprised that the retrial has already been posted. I half expected them to slow walk the decision to retry until after Goodson’s trial and then do a late Friday afternoon announcement that Porter wouldn’t be retried.

Mr Branca . Is this degree of secrecy normal in high profile trials ? Is it usual that the jury vote count is subjected to this level of security ,even after the decision has been made to retry ?

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