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Freddie Gray: Porter Not Required to Testify Against Arresting Officers

Freddie Gray: Porter Not Required to Testify Against Arresting Officers

Judge’s ruling allows “Freddie Gray” trials of white officers to proceed without delay

Judge Barry Williams, the trial judge in the “Freddie Gray” cases, yesterday ruled that Officer William Porter is not required to testify against the three white officers charged in the case: Edward Nero, Garrett Miller, and Brian Rice, reports CNN.

Those officers were primarily involved in the initial arrest of Gray, and less so in his transport during which Gray would suffer his traumatic neck injury.

Brian Rice Garrett Miller Edward Nero

Judge Williams had previously ordered that Porter must testify in the trial of police van driver Caesar Goodson, despite the fact that Porter is awaiting a re-trial after his first “Freddie Gray” jury hung. That order is now under review by the Maryland Court of Special Appeals, the state’s intermediate appellate court, and Goodson’s trial has been put on hold until the issue is resolved.

The lawyers for the three white officers had argued that similar delays in their clients’ trials would have violated their right to a speedy trial. If so, such violation could lead to the outright dismissal of the charges against them.

It is unknown if this was a consideration in Judge Williams’ decision to relieve Porter of a legal obligation to testify in those cases.

Among the three white officers Nero’s trial is to begin soonest, on February 22.

–-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

OK, these two ruling cannot be squared in any way, shape, or form.

The trial judge just made the appellate court’s work MUCH easier. IMNHO.

    legacyrepublican in reply to Ragspierre. | January 21, 2016 at 10:52 am

    So, Rags, do you think the leak that it was one juror causing the mistrial that caused the trial judge to change his mind?

    Or do you think the appellate court was going to change it for him and he didn’t want that to influence his ability to impanel and rig the next jury so as to lynch all the cops that come before him? ( Yeah, argumentative — But, I feel the case should have been thrown out of court to begin with )

      Neither the one or the other.

      I think the defense guys for the three mentioned pushed the judge with “speedy trial” pleadings that left him no choice but to rule as he did.

      AND I think that this makes it easier for the appellate judges to rule in an area of unclear law WRT Porter testifying.

      While I certainly agree that Judge Williams is not the ideal jurist, I don’t think he’s the anti-Christ, either.

      But time will tell…

        Gremlin1974 in reply to Ragspierre. | January 21, 2016 at 4:04 pm

        It seems to me that a “speedy trial” issue would be fairly cut and dry. Is what I get from your statements is that you think they would have likely succeed if he had postponed those trials as well?

          HandyGandy in reply to Gremlin1974. | January 21, 2016 at 6:24 pm

          You don’t get it.

          This was a trick by the prosecution. They wanted to delay the trials of the final three. For political reasons they want Goodson and White tried first. They would like Porter too, but they lost him with the mistrial.

          They have no reason for a delay, so they tried to invent one. Porter was not on the (metaphorical) witness list. They already told the judge they weren’t going to use him in those trials. Now they are saying they were wrong and they want to use him.

          If they had gotten their wish, they would have gotten a stay. That was their goal all along. Not having Porter testify.

          The judge saw through it. What is more, it was so blatant a ploy that the appeals court would have seen through it. If the judge granted it, the appeals court would have looked at and said that Porter’s late addition to the witness list was unnecessary, that it introduced an unnecessary delay violating their speedy trial rights, and that they are now free to go.

          I think the prosecution felt that in the worst case the appeals court would have scheduled a new trial, but I’m pretty sure the appeals court would overturn the decision and decide that prejudice was attached. The trick was just to obvious.

          In a sense the judge saved the prosecution from itself.

        Gremlin1974 in reply to Ragspierre. | January 21, 2016 at 4:07 pm

        “While I certainly agree that Judge Williams is not the ideal jurist, I don’t think he’s the anti-Christ, either.”

        Frankly, I think this Judge is in a very unenviable position, especially considering all the politics and emotion surrounding this trial.

        I think he is doing everything in his power to make sure that no one can come back later and say that he did “something” that prevented “justice” from being done.

      Oh? Was it one holdout against acquittal, or against conviction?

        Bruce Hayden in reply to Milhouse. | January 21, 2016 at 3:05 pm

        Apparently 11-1 fore acquittal, which means a single vote for guilty. This was for the most extreme charges, and I think that the low level charges had a majority for guilty.

          Milhouse in reply to Bruce Hayden. | January 21, 2016 at 10:19 pm

          That there were 10 votes to convict on official misconduct, and only one against, is worrying. I can’t think what that could be about except the seat belt nonsense. 10 jurors must have thought he had a legal duty to belt Grey in, and had deliberately decided not to, despite the evidence against that. That would make sense of the question about “bad motive”; perhaps they thought his motive was merely laziness rather than malice against the prisoner, and wanted guidance on whether that would be enough to sustain the charge.

          7-3 for a conviction on reckless endangerment is also worrying; what could that be about? The seat belt again?

          And what kind of demented moron would down-thumb my question above? How could anyone possibly object to it?

    Gremlin1974 in reply to Ragspierre. | January 21, 2016 at 4:01 pm

    It makes me wonder if the Judge might have an inside track on the decision that the appellate court is going to hand down.

Char Char Binks | January 21, 2016 at 10:18 am

The video of Freddie’s histrionics while being arrested by the white officers is the only reason these cases are being brought at all. The BLM mob and their SJW enablers aren’t going to like this.

DINORightMarie | January 21, 2016 at 10:19 am

So, in your expert opinion, does this damage the state’s case against these three, as you noted it would in the other case?

Was the state’s case so dependent on that conviction that these three could have the charges dropped against them, or have the case dismissed?

As a non-lawyer, I would love to know more about the state’s case, and if this ruling is as damaging as the one currently awaiting appeal.

    HandyGandy in reply to DINORightMarie. | January 21, 2016 at 12:52 pm

    No.

    Porter was not going to be called. He has nothing of significance tio say in their trial.

    The only reason that the prosecution asked to call Porter is: These cases are so weak the judge will almost certainly have to grant a motion for acquittal, and the jury will never look at it. The prosecution doesn’t want these three freed before they get convictions on the other three. They have no justification for a delay, so they wanted to call Porter and get a delay because of the SA action.

    The judge didn’t buy it because he’s not stupid. To grant the proposal would be such a clear indication of bias that he would be bumped from the trials.

I’m wondering why the prosecution hasn’t tried to move up the trial of Porter, like they were doing just before the SA announced a stay of Goodson.

It was part of their motion asking for Goodson to be stayed.

Perhaps they don’t want to try Porter and argue the appeal at the same time.

I have to tell a quick story here that has relevance. In college, I had a lab partner who was being charged by the dorm for damage to a vacuum cleaner he had borrowed. He asked my advice in looking over his protest, which I did, and promptly said he needed to re-write it because the protest claimed the vacuum was broken when he borrowed it, but was in perfect condition when he turned it back in.

The similarity here is the prosecution seems to be claiming that Freddie was ‘broken’ during every step of the arresting process right up to the ambulance ride. Perhaps this decision signals a return to rationality where they will (finally) admit that Freddie’s lethal injuries occurred between the last two stops, much in the same way the rest of us have deduced long ago. If so, the defendant pool will shrink considerably in the near future.

A scenario just occurred to me that may shed some light on what the prosecution was thinking, However the scenario is far fetched. Even Mosby is not that stupid. I thought I would present it just to dismiss it for good.

THe scenario called for the defense to call their clients–which they most certainly would– and in a flurry of questions: “Did he complain of his head hurting”, “chest pains” etc. ask “did Grey say he had trouble breathing?”

Getting a no answer they would then call Porter and have him testify that he heard Grey tell the officers he couldn’t breathe.
They could do this without putting Porter on the witness list because he would rebut what the client said. Now the officer is seen as a liar by the jury–conviction.

Actually thinking a bit more, this is cheesy TV lawyer drama 101.

In this scenario, the stay messes things up. They can’t call Porter as a rebuttal witness because he would take the 5th. So they try to add him to the witness list.

The key to this scenario is for the defense to step into it. The officer has to say something like “absolutely not” when asked if Grey can’t breathe. If the defense is expecting it is easy to stop. Just make sure your client knows not to say things like “absolutely not”. Better ask him on direct, when you can control his answer.

The reason I dismiss this is they need surprise to make it work. Once they do it in the first trial, the other two are ready.

Even in the first trial, the defense would be an idiot to not expect it. Even bigger then Ron Rivera ( head coach of the Pathers ) for not expecting that fake punt which even the commentators saw coming.

That reduces the possibilities to the obvious. Mosby did this because she wants these officers tried last, has no good reason for a continuance, and getting the judge to order Porter to testify would automatically stay the trial.

It couldn’t possibly work f

holdingmynose | January 21, 2016 at 3:00 pm

More “White privilege”?

Could someone remind me why these three officers were charged (not the politics, but rather the prosecutor’s theory of the case)? They had a reasonable suspicion by Gray trying to run away when he saw the officers, and the officers were then entitled to search him, incident to the stop. They arrested the guy for an illegal knife. The knife was illegal (under Baltimore law). They then put the legally arrested Gray in the van for transportation to jail. I just don’t see their criminal culpability here.

    Because riots.

    Gremlin1974 in reply to Bruce Hayden. | January 21, 2016 at 4:19 pm

    In the beginning I think Mosby was planning on using what she called an illegal arrest which would have made the van ride less easy to defend because then they could use the “well he shouldn’t have been arrested anyway” argument.

    Mosby is neither bright enough and far to narcistic to be introspective and look back and realize that she doesn’t have a case without the illegal arrest argument. Which she still may be planning on trying.

    Bruce, I think the most recent explanation of the prosecution’s theory as to the arresting officer is in their opposition to the arresting officers’ motions to dismiss the reckless endangerment charge.

    Although the prosecution is trying to imply it may have some more facts at trial, the general basis seems to be that by putting Gray in the van without a seat belt and with his hands and feet restrained, all of the officers are guilty of reckless endangerment.

    It seems thin to me, but I guess you can imagine hypotheticals where it might work. (For example, handcuffing an arrestee to an active train track, then heading out to arrest others.)

    Here are the Nero pleadings, which I assume are typical for the arresting 3.

    http://www.baltocts.state.md.us/highlighted_trials/goodsonetal/nero/docs/NeroStateRespDefMotiontoDismiss092815.pdf

    http://www.baltocts.state.md.us/highlighted_trials/goodsonetal/nero/index.html

    Whoops, I missed the other charges in my prior email. Looking over the opposition to the motion for sanctions, my best guess is that the state is arguing the following as to the arresting officers:

    1) Assault and Official Misconduct

    – Eye contact and running is not a sufficient basis for a chase, tackle and brief search (i.e., a “hard stop”). Therefore, the tackle and restraint was improper. (I think they’re arguing this, but am not sure).

    – Spring assisted knives are in fact legal under the relevant law, which is meant to address switchblades, not common knives like the one Gray had. (The state definitely argues this one in the opposition to the motion for sanctions).

    2) Reckless endangerment

    – The police knew or should have known that putting Gray in a van with his hands and feet restrained but with no seatbelt presented an unreasonable risk of injury or death.

    I think those arguments are all going to be tough, for the reasons Andrew has laid out. Certainly, if I was putting a kid in a car, I’d make sure they had their seatbelt, especially if they weren’t able to use their hands or feet, but beltless rides seem to have been really common. And as for the arrest and stop, I had thought it was pretty clear that the police could stop someone for running in a high crime area, and that as long as there was reasonable doubt over the legality of the knife, the arrest wasn’t misconduct.

I wonder what White’s defense team is doing? Would the ruling for Goodson apply to her trial as well?

    HandyGandy in reply to Gremlin1974. | January 21, 2016 at 5:46 pm

    Taking a metaphorical nap.
    Basically the Goodson/White cases are on hold until the appeal.

    Yes, they do not want Porter to testify, but they have no arguments to make. It’s Porter’s fifth amendment rights that are being asserted, its Potter’s lawyers who have to make the argument.

Char Char Binks | January 21, 2016 at 5:20 pm

Because white.

What rulings don’t square?

Yesterdays ruling not to compel testimony in the final three trials, and the ruling that use immunity removes any bar to Porter’s testimony in Goodson/White? They are different rulings on totally different issues.

Yesterday’s ruling not to compel testimony in the final three cases and the previous ruling to compel testimony and Goodson/White?

In Goodson/White Porter was a party to the events and all the witnesses are defendants. In the final three Porter was only a wtiness to part of the end of the events, and there were plenty of witnesses.

Say what you will about Williams, but there is nothing contradictory about his ruling in this part.

Mr. Branca,

Yesterday when I read about this, most of the articles were terse. Today I c ame across this article: http://www.baltimoresun.com/news/maryland/freddie-gray/bs-md-ci-porter-witness-five-trials-20160120-story.html

which somehow the Sun snuck past me.

It has some details which you would probably like to include.

    Char Char Binks in reply to HandyGandy. | January 21, 2016 at 6:31 pm

    “We tried to learn something from our experience in trying Officer Porter,” Chief Deputy State’s Attorney Michael Schatzow told Williams. “We think we have the right to change our mind, and we acknowledge we are changing our mind.” — That’s Schatzow admitting they were woefully unprepared to bring charges.

I know I shouldn”t be selfish but I want to see the first three go on trial. I want to see that da…n knife !!. Or maybe an artist’s rendition.
Another poster on another site surmised that maybe Freddie was acting up and resisting to cover up for his informing he was doing.He
just got too rowdy and hurt himself. I can”t imagine if he was an informant that he would be intentionally injured. Hey would Starsky and Hutch hurt Huggy Bear.?

    Gremlin1974 in reply to dmi60ex. | January 22, 2016 at 5:44 am

    He was not informant, but people love a good conspiracy theory. This was a horrible accident, but that is exactly what it was an “accident” and act of God, however you want to put it. These officers are no more responsible for Gray’s death than Gray himself is. Sometimes things just happen an regardless of what you do or what steps you take, things just go bad.

    amatuerwrangler in reply to dmi60ex. | January 22, 2016 at 1:26 pm

    Even if he was an informant, the transporting officers would not know it, or should not. Part of the “informant program”, informal as it might be sometimes, is that when arrested the informant just STFU and enjoy the ride. Once at the lock up the informant requests contact with whoever he is an informant for. It is not uncommon for an officer to want an informant arrested, just to keep them aware of how they need to “keep current” and let them know who is boss.

    No informant worth his or her salt starts yelling “I’m an informant for so-and-so” as soon as the cuffs come out.

    Yes, it a nasty part of a sometimes nasty business, but it is there. Killing someone else’s informant doesn’t serve any good purpose, unless you write plots for “Low Winter Sun”.

      Gremlin1974 in reply to amatuerwrangler. | January 22, 2016 at 2:39 pm

      “Even if he was an informant, the transporting officers would not know it, or should not.”

      Exactly, these officers are basically “beat cops” not detectives/Inspectors. They patrol they get to know area’s and they get to know people in those areas and they are a basic and critical part of keeping people safe. I wish we had more out of the car cops in my area.

      In the end even if Gray was an “informant” it really doesn’t matter, also if he was in informant the why run?

It was just a thought that someone else had posted about why Freddie was acting up ,but yes he was reported as an informant. The memo that was hidden from defense was reported to be from a March 31 meeting when Freddie was discussing and giving information on a robbery gang .The detective noted that Freddie had mentioned the bad back. Last spring one of the news shows( Megan Kelly ??) t
there was an anonymous cop, who said Freddie was one of their better sources. The report was panned at the time and was not widely believed. It is amazing how in this case how all the rumors end up being true.Love to find out what crash for cash scheme was. There was a Baltimore Sun piece early on where several people said Freddie had pulled an insurance scam with a car wreck. That story was not given much credence , but with Freddie , who knows.

My mind keeps coming back to the fact that ol’ Freddy had been arrested something like 25 times. Is it any wonder that eventually, given the wear and tear of many “non-compliant” arrests, that eventually he’d be injured badly? It just seems like the odds would build up and eventually something bad would happen to poor Freddy. Maybe not the first arrest. Maybe not the second arrest, or the 5th, or the 10th, but eventually something important is gonna get broken when you force big dudes to take you down over and over again. Seems to me that it’s hard to blame the police in this scenario, but then again I’m not a state’s attorney trying to hand out ‘social justice’ to both make a name for herself, and placate an out of control mob.

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