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Freddie Gray Case: Appellate Court Puts Hold On Officer’s Compelled Testimony

Freddie Gray Case: Appellate Court Puts Hold On Officer’s Compelled Testimony

Jury selection for trial of police van driver Goodson remains scheduled for Monday

UPDATED (1/8/16): We’ve embedded the state’s response to the appellate court order at the bottom of this post.

UPDATED (1/8/16): We’ve embedded Chief Judge Krauser’s order at the bottom of this post.

Well, that was (appropriately) quick.

The Maryland Court of Special Appeals, the state’s mid-level appellate court, today issued an order halting trial Judge Barry Williams’ order that Baltimore Police Officer William Porter could be compelled to testify in the trial of fellow officer Caesar Goodson despite the fact that Porter is awaiting his own re-trial.

The order from the Court of Special Appeals, written by Chief Judge Peter B. Krauser, does not seem to be publicly available yet (if anybody has a copy they can send me, let me know in the comments below), and news reports leave the order’s full legal rationale and legal is unclear.

The rationale reported in the Baltimore Sun is that “prosecutors needed an opportunity to respond to an injunction request from Porter’s attorney filed Thursday.”  This rationale really only makes sense if it was abundantly clear that the Court of Special Appeals were prepared to fully rescind Judge Williams order that Porter be compelled to testify, and the prosecution pleaded for an opportunity to make a more substantive counterargument.

Notably, Chief Judge Krauser’s order does not postpone the imminent trial of Officer Goodson, for which jury selection is to begin on Monday, suggesting he may have only grudgingly acceded to the prosecution’s request for an opportunity to provide a counterargument.

If we get ahold of Chief Judge Krauser’s order, we’ll be sure to post it.

UPDATED, 1/8/16:

And now we DO have Krauser’s order, thanks to commenter amwick, below:

UPDATED, 1/8/16:

We don’t have Krauser’s order, but thanks to commenter HandyGandy below we do have the State’s response to that order:

–-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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One wonders if Judge Williams isn’t trying for more mistrials or overthrown verdicts on appeal as a protest against this whole set of trials being brought for political reasons.

    jakee308 in reply to jakee308. | January 8, 2016 at 5:42 pm

    And if I was Porter and told to testify, I’d invoke the 5th amendment and take my chances with the Appeals court.

    phiremin in reply to jakee308. | January 8, 2016 at 7:04 pm

    Clearly, the only shot Mosby has at a conviction is with significant help from Judge Williams and some luck pulling a panel of 12 Social justice warriors (or people who just don’t want their city to burn or are afraid for their own safety).
    So, is Williams simply biased toward the prosecution? After all, he didn’t spent his career prosecuting cops?
    Or, does he see the cases as very weak, doesn’t anticipate convictions and is doing everything he can to show Baltimore residents that the justice system treated these cops just like anyone else and Baltimore residents acquitted them?

    dmi60ex in reply to jakee308. | January 8, 2016 at 9:39 pm

    jakee308 Sometimes , I believe so too , he is either heavily biased or is just stretching this out to avoid political fallout. if that is the case maybe he will find a way to make sure any conviction is appealable.

    JackRussellTerrierist in reply to jakee308. | January 9, 2016 at 11:57 pm

    Fat chance of that. All indications are that Williams, who is black, is a pro-black judge hung up on civil rights. His decisions thus far support that.

    He needs to be sent to the woodshed by the appellate court.

I thought that a pretty good piece of analysis, and especially appreciated the part about Judge Williams having to rule without precedent in a very arcane set of circumstances.

    Especially on point was the commentary on the irrelevant and prejudicial nature of the proposed testimony by the “rough ride expert” given the total lack of evidentiary foundation that a rough ride actually occurred.

    –Andrew, @LawSelfDefense

      Ragspierre in reply to Andrew Branca. | January 8, 2016 at 6:58 pm

      Yeah, me, too. I would not like to try to shoe-horn that into evidence on the facts as I understand them. That would be one of those, “I’ll look silly to the jury when the judge gets finished with me” decisions.

    JackRussellTerrierist in reply to Ragspierre. | January 10, 2016 at 12:09 am

    It doesn’t appear that anything will slow Judge Williams down in his hot pursuit of Social Justice, arcane be damned.

Is this really that much of a surprise? I expected the stay, but thought that it wouldn’t mean much about the final decision.

You make a good point about the judge not ordering a delay, but isn’t that a pecularity of MD law?

I would think that rather then have some judge order a delay on his own, the prosecution would have to request it.

Just a small update on Slager.

I don’t know it’s accurate, but it says that Scott has gunshot residue on his hands. That is very interesting to me. Especially since Slager shot Scott in the back from a distance.

    Might be residue from the Taser having been fired when Scott was in close proximity. As I recall, the video suggested Taser darts caught in SLAGER’S clothing, as if Scott had tried to Taser him.

    –Andrew, @LawSelfDefense

      NavyMustang in reply to Andrew Branca. | January 9, 2016 at 6:50 am

      A TASER will leave gunshot residue? I have never heard that and I was trained in TASER use and deployed it more than once on the job. No one ever mentioned GSR.

        divemedic in reply to NavyMustang. | January 9, 2016 at 8:43 am

        No, the TASER does not leave GSR. It uses a pressurized nitrogen cartridge as its propellant, which leaves no GSR. The Original TASER used gunpowder as a propellant, which led the ATF to classify the TASER as a firearm in 1976. The propellant was changed, so that the weapon would no longer be classified as a firearm.

    Char Char Binks in reply to HandyGandy. | January 10, 2016 at 12:32 pm

    Could the gunshot residue on Scott’s hand have come from recently handling a different gun? Nobody else seems to be able to see it in the dash cam video , but I’m 99% convinced that Scott had a gun in his hand and was pointing it at Slager from the door of “his” Mercedes.

MR Branca IF Slager made the decision to fire during the struggle , what is the processing time that it takes for the brain to counter that command or instinct when under stress . Has that ever been studied . Is is possible that once that decision is made , the lag time to countermand that thought , could explain why the shot was made even after the threat was diverted .

    In my opinion the time delay in the Slager case is too long for that argument to have much weight.

    However, if Scott tried to Taser the officer with his own Taser, that could represent a degree of deadly force threat that might warrant a fleeing shot in order to protect the public and other responding officers, as per Garner.

    I expect that to be the defense, assuming there’s facts to support it, which the video suggests might exist.

    –Andrew, @LawSelfDefense

      HandyGandy in reply to Andrew Branca. | January 8, 2016 at 11:53 pm

      If Slager was partially tased, could he claim that his reaction times were compromised? That it took him longer to realize that Scott was no longer fighting, but was running.

      If the leads went into his vest it’s possible that electricity could flow through the vest –depending on the material and might be “worse” then direct skin contact.

      Char Char Binks in reply to Andrew Branca. | January 10, 2016 at 2:39 pm

      Scott definitely had the taser just before the first shot. Officer Slager had his left hand occupied with Scott’s right wrist, and was drawing his gun with his right hand. Scott was the only one with a free hand to throw the taser, as is shown in the video as he raises his right hand in a quick motion, breaking free of Slager’s grasp, and immediately throwing the taser down and to the left/rear of Slager as he turns to run.

    rabid wombat in reply to dmi60ex. | January 8, 2016 at 10:34 pm

    Force Science has done a lot of time / reaction studies, though I can not site any specific answers….

Hope my previous post was understandable , at work not much time to type. Is there any time lag that could be explained by stress after initial threat has ended that could be justified . I think he thought he was under threat and was and just did not process the end of the threat fast enough .

Sorry your post didn’t update for me until after I posted the second one.

Mr Branca I see that Officer Tensing is going to trial soon in Cincy. I know you did a post earlier. Hope you decide to do another . If you decide I could send you some links that were on a reddit post ( since deleted or hidden ,can still bring up with link) showing several analysis , that show him landing about 25 to 35 ft up road near the white street sign on the left side of the road. The street sign is on the left and can be seen when Tensing is walking up to Sams car . The poster also showed different positions of the Silver pick up( in driveway by Sams original position ) truck prior to shot .

“Notably, Chief Judge Krauser’s order does not postpone the imminent trial of Officer Goodson”

But why would Krauser delay the trial? It would seem to me (and I’m not a lawyer), that this would be outside of the scope of the appeal.
It would think that it would be up to Mosby to decide how important this potential witness is to the prosecution’s case and up to her to move for a delay, which Judge Williams may or may not grant (I’m betting he would given his previous pro-prosecution rulings).

Even if the state prosecutors grant transactional immunity from state prosecution, I would think the threat of federal prosecution that is not bound by such an arrangement is plenty sufficient to justify refusal to testify on 5th amendment grounds. Especially since the feds have a tendency to inject themselves into racially charged prosecutions that start at the state level. It seems obvious to me, but am I missing something on that?

    Milhouse in reply to Rand. | January 11, 2016 at 5:59 pm

    The state prosecutors claim that any federal prosecution would be bound by a state grant of immunity. And they cite case law that they say supports this. Can anyone refute their claim?

      Gremlin1974 in reply to Milhouse. | January 11, 2016 at 8:46 pm

      Yea, that is the same State Prosecutors that said that the knife Freddie had was legal even though it clearly wasn’t, so take their claims with a salt lick sized grain of salt.

There was a BBC series about twenty years ago.
It was called Game,Set and Match based on the Len Deighton books. Luckily I recently managed to find a copy of the series. Since the author didn’t like some of the casting, and has removed his consent for rebroadcast, you have to go “underground” to find it.

In the part based on “Game”, there was a mole in MI6. There was also a asset in East Berlin called Brahm’s four, which the Soviet’s were desperate to uncover. As the story progressed, the KGB became so desperate they wound up doing things that would expose the mole.

This issue has the same feeling. The prosecution is so desperate to convict Goodson, to get at least one conviction, that they are willing to push the judge. The judge in turn has popped his head up.

I think the subpoena will be quashed. If the Maryland courts don’t do it, the Federal courts will. Once he gets reversed it will be interesting to see how the judge rules in the future.

A couple of observations from the peanut gallery:

1. In a previous thread, there was some dispute as to whether Porter’s state issued limited immunity would have any legal weight in a federal prosecution. In the State’s Response (herein) it cited a case (Murphy v. Waterfront, pp 6,7 State’s Motion) that stands for the proposition that the State immunity will apply to any later federal criminal action.

2. The State can (and should) continue the case against Porter until the issue of Porter’s immunity is settled. All the Appeals judge did was to temporarily prohibit Porter’s testimony at the present time, even with the grant of immunity. Remember, Criminal Proceedings 101: A Temporary Injunction is . . . ‘temporary.’

To me it seems that the state is trying to force immunity onto porter, since they noted in the immunity was given in the subpoena. I thought you had to agree to immunity and that they couldn’t just subpoena you with immunity? Or I may be off base.

    As a practical matter immunity is typically something agreed to, because it’s offered in exchange for some quid pro quo. But it certainly CAN be imposed. You don’t have a 5th Amendment right to “not testify,” you have a 5th Amendment right to “not incriminate yourself.” If you’ve been immunized, incrimination is no longer possible.

    Of course, that applies most cleanly to absolute immunity. Things get sketchier as immunity is offered in a limited form that may still some criminal liability on the table.

    –Andrew, @LawSelfDefense