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Freddie Gray: MD’s Highest Court Says Officer Porter Must Testify

Freddie Gray: MD’s Highest Court Says Officer Porter Must Testify

Clears way to compel Porter’s testimony against the five other officers charged

In a single-page per curiam decision, the Maryland Court of Appeals (the state’s highest court) ruled today that Baltimore Police Officer William Porter can be compelled to testify in the trials of Caesar Goodson and Alicia White, the two officers who like Porter were most closely involved in Gray’s transportation, according to reporting by CBS News and other sources.  (That order is embedded at the bottom of this post.)

It was in the course of this transportation that Gray would suffer the traumatic neck injury that is believed to have ultimately taken his life.

In a second order the court reversed the trial court’s early decision that Porter could not be compelled to testify against the three officers most closely associated with Gray’s arrest (but not his transport): Officers Garrett Miller, Edward Nero, and Lt. Brian Rice.

The Court provided no rationale for the rulings, noting merely that the decision was made “For reasons to be stated in an opinion later to be filed …”

In total, six officers have been charged over the death from neck trauma of Freddie Gray. Gray’s injury was suffered as he was being transported in a police van following his arrest for illegal knife possession by Baltimore police officers Brian .

Freddie Gray arrest

Shackled at the ankles and wrists because of non-compliance with his arrest, Gray was placed on the floor of the van rather than buckled into the van’s bench seat. At some point Gray raised himself off the floor of the van, then fell and struck his head in a “shallow dive” manner that resulted in his neck trauma.

In the aftermath of Gray’s death the city of Baltimore was wracked with rioting, violence, and property damage. In explicit response to “calls for justice,” Prosecutor Marilyn Mosby brought a variety of poorly supported criminal charges ranging from misconduct in officer to murder against six officers involved in Gray’s arrest and transport. The state’s theory of the case in support of the charges is that the officers should be held criminally liable for various claimed acts of omission rather than acts of commission.

Porter was the first officer to be tried, in his case on charges as serious as manslaughter, and the jury in his case was unable to come to a verdict of either guilt or acquittal. Prosecutors immediately announced that they would re-try Porter at a later date.

In the meantime, however, prosecutors still wished to use Porter as a material witness in the trials against the other five officers charged. Had Porter been either convicted or acquitted he could easily have been compelled to testify in those trials.

With his own re-trial pending, however (as well as prospective Federal prosecution on civil rights grounds), Porter argued that he ought not to be compelled to testify. He maintained this position even after being granted limited use immunity by state prosecutors, such that state prosecutors would not be able to use his compelled testimony against him when he is re-tried.

The trial court handling all six Freddie Gray related prosecutions ruled that Porter could be compelled to testify against Caesar Goodson and Alicia White, the two other officers who were most closely associated with Gray’s transport (but not his arrest), but not against the three officers who were most closely associated with Gray’s arrest (but not his transport).

Porter immediately appealed the decision to Maryland’s highest court, which issued a stay on Porter’s compelled testimony, delaying the start of the next trial, that of van driver Officer Caesar Goodson (who has received the most serious charge, murder).

Today’s order from that court vacated their stay on Porter’s compelled testimony in the Goodson and White trials, and reversed the trial court’s ruling that Porter could not be compelled to testify against Miller, Nero, and Rice. Thus, Porter can now be compelled to testify against all five of the officers remaining to be tried.

It is possible, of course, that Porter could nevertheless refuse to testify. In that event it would be anticipated that the trial court would hold Porter in contempt of court and have him imprisoned for a duration deemed appropriate by the court.

As promised, here’s the Maryland Court of Appeals order vacating their stay of the trial court’s order compelling Porter to testify, and remanding the case back to the trial court:

–-Andrew, @LawSelfDefense


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Comments

Senior Government Officials plead the 5th in front of Congress but this poor schmuck has to testify?

    Milhouse in reply to MattMusson. | March 8, 2016 at 4:13 pm

    He has immunity. And according to the judge and the prosecution, that immunity extends to any federal case that might one day be made.

      VaGentleman in reply to Milhouse. | March 8, 2016 at 4:20 pm

      When did the rulings of a state court become binding on the federal courts? Aren’t the feds the superior court? Did they sign off on this?

        Milhouse in reply to VaGentleman. | March 8, 2016 at 4:30 pm

        Fed courts are not superior to state courts, but of course fed courts decide what is binding in fed court. All the state courts can do is examine the fed precedents, and give their opinion on what a fed court would say. The prosecution argued that the fed authorities would be bound, and the trial judge agreed. Today’s order seems to mean the state court of appeals agrees as well; we’ll find out when the opinion issues.

          VaGentleman in reply to Milhouse. | March 8, 2016 at 4:56 pm

          If federal courts are not superior to state courts why are appeals made from state courts to federal courts but not from federal courts to state courts?

          Milhouse in reply to Milhouse. | March 8, 2016 at 7:02 pm

          Your premise is incorrect. As a general rule, state court decisions can not be appealed to federal court. Any such appeal would have to be on separate federal grounds, e.g. that the state law or court procedure was unconstitutional or violated a federal law.

          maxmillion in reply to Milhouse. | March 9, 2016 at 8:42 am

          Appeals on Constitutional grounds go from state supreme courts to the US Supreme Court, which can, and often does, reverse those state supreme court opinions.

          Milhouse in reply to Milhouse. | March 9, 2016 at 9:37 am

          Appeals on Constitutional grounds go from state supreme courts to the US Supreme Court,

          Only on questions of federal law (whether the constitution, a statute, or a treaty). After all, it is the final authority on that. But on questions of state law or common law, including state constitutions, state courts are not inferior to federal courts, not even to the US Supreme Court.

      justicewarrior in reply to Milhouse. | March 8, 2016 at 5:15 pm

      First of all, congratulations to the Maryland Courts for getting it right and providing for Justice for Freddie Grey. They have cleverly shredded Murphy v Waterfront Commission which so wrongly held.

      “A state witness granted immunity from prosecution under state law may not be compelled to give testimony which may incriminate him under federal law unless such testimony and its fruits cannot be used in connection with a federal prosecution against him, and such use of compelled testimony or its fruits, as distinguished from independent evidence, by the Federal Government must be proscribed”

      Now these miscreants can pay for their crimes against Freddie Grey in both State and Federal Courts. They will not be allowed to rely on mere technical Constitutional “Rights”

        Milhouse in reply to justicewarrior. | March 8, 2016 at 7:11 pm

        They haven’t shredded it, they’ve upheld it. I believe that decision is precisely the basis of this ruling. It says “such use of compelled testimony or its fruits […] by the Federal Government must be proscribed”, in other words he has immunity.

        dorsaighost in reply to justicewarrior. | March 8, 2016 at 10:41 pm

        Freddie Gray already got the justice he deserved … break the law, put yourself in danger … get killed by your own stupidity … justice …

        Well, lookie here. It’s a LI newby sporting a special kind of stupid.

        Do you know anything at all about this case?

        Congrats! I’m awarding you my first ever DUMBASS POWER RATING +10.

      counsel in reply to Milhouse. | March 8, 2016 at 5:24 pm

      Milhouse can you provide some statutory or case law references? In general the dual sovereignty principle does not bar successive prosecutions for the same act by different jurisdictions. (e.g. two States, or Federal and State). My impression has always been that State immunity grants are not binding on other sovereigns.

      Please refresh my knowledge.

        Milhouse in reply to counsel. | March 8, 2016 at 7:04 pm

        The references were in the original decision to compel his testimony.

        Milhouse in reply to counsel. | March 8, 2016 at 7:14 pm

        Actually justicewarrior kindly provided the reference just above. Murphy v Waterfront Commission. It seems to say quite clearly that if someone is forced to testify in state court under a grant of immunity, that testimony or its fruits can’t be used against him in a federal prosecution.

          “seems to say” adjacent to “quite clearly.”

          Huh. 🙂

          –Andrew, @LawSelfDefense

          Milhouse in reply to Milhouse. | March 9, 2016 at 2:25 am

          Yep. What’s your problem with it? Does this meaning not seem clear to you? Does some other meaning seem clear to you instead? If so, what meaning is that? Or does the passage seem to you not to have any clear meaning?

Federal court appeal?

Per curiam.

I still don’t understand how he can be forced to testify if it will incriminate him in federal court.

But then again this IS Maryland.

    Milhouse in reply to Olinser. | March 8, 2016 at 4:15 pm

    The prosecution argued, and the trial judge agreed, that his grant of immunity automatically extends to federal court.

      Mark30339 in reply to Milhouse. | March 8, 2016 at 4:24 pm

      It is clearly a Maryland brand of fuzzy logic, do you suppose the US Attorney considers himself bound it?

        Milhouse in reply to Mark30339. | March 8, 2016 at 4:28 pm

        The state courts can only base themselves on the federal precedents that exist, and they say those precendents mean the federal authorities would be bound. The feds have, of course, not yet been heard from.

          VaGentleman in reply to Milhouse. | March 8, 2016 at 5:06 pm

          So Porter doesn’t have certain immunity in federal court. Therefore forcing him to testify in state court could leave him at risk in federal court. But your first argument was that he had federal immunity conferred on him by the state grant. Now you admit that’s not so. Are you renouncing your first claim of federal immunity or are you trying to argue 2 conflicting positions simultaneously?

          Milhouse in reply to Milhouse. | March 8, 2016 at 7:08 pm

          Are you incapable of logical thought, or only pretending? The state court believes he has immunity in federal court. That is the basis of their decision that he has to testify. Of course the state judges aren’t psychic, and if it ever gets to a federal court it may decide the state judges got it wrong. That’s always a risk. Even if a federal court agreed that he has immunity, there’s always the risk that a higher court might one day disagree. But the state judges’ duty is to rule according to their understanding of federal law, and that is what they have done. If he wants to push it, it’s up to him.

          stevewhitemd in reply to Milhouse. | March 8, 2016 at 10:43 pm

          If I were Mr. Porter I would not be reassured by the state court logic that it considers the Federal prosecutor to be bound by the state grant of limited immunity. If I were Mr. Porter, I’d want to hear that from the Federal prosecutor’s office. Whatever the Murphy may say (per another commenter), I wouldn’t stake my freedom on this decision.

          No, if I were Mr. Porter and were forced to testify at the trial of one of the other officers, I’d invoke the Fifth Amendment against federal prosecution — since the Federal prosecutors haven’t made a decision yet, they’re certainly not in a position to say that they won’t go after him.

          If he’s forced to testify, the Feds can and will use whatever he says — if they can’t use it in court, they’ll use it to educate themselves as to how to go after Porter better. While he can proclaim as loudly as he can that he did nothing wrong, the specific answers to any question may impeach him as far as the Feds are concerned. He needs to keep his mouth shut until his own legal case is resolved.

          Milhouse in reply to Milhouse. | March 9, 2016 at 2:30 am

          It doesn’t matter whether he’s reassured. The court’s object is not to reassure him, it’s to decide the law. It has decided, and he can either comply with it or defy it and take the consequences.

          What other choice did it have? It can’t ask a fed court for an advisory opinion. All it can do is look at the state of federal law as it understands it, and make its decision accordingly.

          J Mann in reply to Milhouse. | March 9, 2016 at 11:49 am

          Thanks for the explanation, Millhouse. It was clear and helpful.

          I still am not crazy about the decision, though. If multiple judges can come out different ways on whether Porter has federal immunity, I would say from a Bayesian perspective that he can’t be confident that he has immunity.

          I’ll take your word that the court can’t get an advisory opinion, but the other thing that could happen is that federal prosecutors could grant him immunity, right? I would say that while the feds are at best silent on their intent to charge you and you’re not confident of your immunity, Fifth Amendment concerns are still strong.

          (I don’t know the state of the case law, and am just arguing from what I see as policy principles.)

          Milhouse in reply to Milhouse. | March 9, 2016 at 11:57 am

          Absolute certainty is never possible. The Supreme Court might take it into its head to reverse Murphy, and then where would everybody be? A US Attorney might offer immunity, and a different one might claim not to be bound by it. All a court can go on is the state of the law as it currently exists, and as it understands it. And the current state of the law seems to be that a state can compel testimony upon a grant of immunity, and that such testimony, or its fruits, cannot be used in a federal prosecution. Federal investigation must proceed as if that testimony had not been given.

      Owego in reply to Milhouse. | March 9, 2016 at 1:49 pm

      Stevewhite, below, seems to have it right. Another court hearing testimony, even with immunity, seems a bit like trying to unring a bell. Of course, no attorney would try such a thing. What a travesty. Good luck with that, officer Porter.

Maryland obviously needs to trade their loons to Canada on a loon for loon basis.

Can’t have a wrong outcome and more riots. Bad for their image. I’d say bad for business but I am not sure what’s left to salvage in the areas they cordoned off for the public ‘demonstration’.

VaGentleman | March 8, 2016 at 4:28 pm

Does anyone still trust the american legal system to even attempt to deliver justice?
Gideon Tucker wrote in 1866: “No man’s life, liberty or property are safe while the Legislature is in session.”
The 2016 version: “No man’s life, liberty or property are safe while the Legislature or the Courts are in session.”

    Ragspierre in reply to VaGentleman. | March 8, 2016 at 5:07 pm

    We can put MORE trust in our legal system now than any other time in history, I think.

    If you read much legal history, I think you’ll agree.

      tphillip in reply to Ragspierre. | March 8, 2016 at 6:06 pm

      “We can put MORE trust in our legal system now than any other time in history, I think.

      If you read much legal history, I think you’ll agree.”

      BWAAAAHAAAAA!!!

      That’s a good one. When do we pull the other one?

      The reality is that thanks to the Internet the American public is becoming aware of just how much corruption is in the various systems. Now instead of sitting the courtroom yourself or reading a tiny blurb in the local paper you can aggregate it yourself via Google or see it on sites such as Reddit, Voat, or any number of blogs.

      The system is not more trustworthy now than ever. You have nothing to back that claim up, while I can show day after day the corruption of law enforcement officers, district attorneys, and judges all around the US> on a consistent basis.

      But hey, ask us to pull the other one.

      VaGentleman in reply to Ragspierre. | March 8, 2016 at 6:16 pm

      Sorry Rags, I have read the history and I don’t agree.

      Our constitutionally guaranteed individual rights, rights based on natural law philosophy and deemed by the founders to be superior to gov’t meddling, are being attacked daily and replaced with group rights manufactured from thin air and which derive their legitimacy from the short term wishes of an electorate that reads at less than the 8th grade level. The court system has been politicized to the point where it no longer tries to deny or hide the fact that it is being used to settle political scores and advance political agendas. And if a few eggs are broken to make the omlet, so be it. Where 4th amendment rights have been eroded to meaninglessness by no knock warrants and the militarization of the police agencies. Where police and prosecutors knowingly put innocent people in jail to meet their numbers and get a promotion and a fatter pension. Where the laws are so convoluted that most of us commit crimes we don’t even know exist. Where Jim Crow as public policy has been adopted by the party that invented it and where the supreme court is one vote away from deciding that the 2nd amendment reads- “The army has the right to own guns.” Etc, etc, etc …

      So I can’t agree with you. IMO our liberty and freedoms have never been at greater risk. And the legal system has been and is a willing participant in the attack on our liberty.

      inspectorudy in reply to Ragspierre. | March 8, 2016 at 6:49 pm

      Rags, maybe you could send Bernie a note and tell him that healthcare is NOT a right under our Constitution. He repeated this absurdity Monday night and Bret Baier just stood there. What happened to the hard nosed FNC reporters? Baier looked like a lap dog to hillary. Not one interruption or “But Wait” moment.

        Milhouse in reply to inspectorudy. | March 9, 2016 at 9:26 am

        He didn’t say it’s a constitutional right. As far as I know he has never claimed that. He said it’s a human right. How can you prove him wrong? We hold these truths to be self-evident that all […] are endowed by their Creator with certain inalienable rights, that among these are […]”. If Sanders believes that also among them are a right to be treated for all our ills at the expense of whomever can best afford it, how can you prove that it isn’t?

          Any “human right” that requires the compulsory labor or resources of another is utterly inconsistent with the most basic notions of individual liberty.

          Another term for such a compulsory claim upon another’s labor and resources is “slavery.”

          The phrase you fail to completely cite (I wonder why) states:

          “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

          “unalienable Rights”–meaning they cannot be TAKEN. NOT that they are to be PROVIDED.

          “Life, Liberty, and the Pursuit of Happiness.”

          Not medical care, provided by someone else. Not housing, provided by someone else. Not a minimum guaranteed income, provided by someone else.

          Really, this is not rocket science.

          –Andrew, @LawSelfDefense

          Milhouse in reply to Milhouse. | March 9, 2016 at 10:40 am

          That is a view of natural rights that you and I share, but it rests on philosophical principles that Sanders needn’t share. How do we know that the unalienable rights each person has do not include a right for a hungry person to eat that which belongs to someone else, for a cold person to sleep in shelter that belongs to someone else, for a drowning person to compel the services of whoever is capable of saving him, or for a sick person to compel the free services of anyone who is capable of healing him? It seems obvious to many that such rights do exist, and are just as natural as the negative rights you and I accept. They regard the right to property, which Jefferson pointedly omitted from the declaration, as an un-natural invention that can’t be allowed to stand in the way of these supposedly natural rights. And I see no way to prove them wrong without falling back on philosophical axioms that are far from being universally accepted. The problem is that you and I (and I supose most readers here) start with those axioms. Others don’t.

          I make no claim that my philosophical position, that of the Founders, is universally accepted.

          Clearly, it is not. Otherwise America would not be exceptional.

          That philosophical position is, however, demonstrably superior to all others with respect to individual liberty. You’ll have noted the specification of individual liberty in the first sentence of my immediately prior post.

          People like Sanders are free to prioritize other considerations above individual liberty.

          But that IS what they’re doing: Prioritizing other considerations above individual liberty.

          We’ve seen that approach tried throughout human history–indeed, it is the NORM of the human experience. Slavery, feudalism, fascism in various flavors, are all the norm.

          Human liberty is a rare and costly item. Pain, misery, and genocide are the traditional fare of human existence.

          I’m on the side of those who recognize and prioritize the value of human liberty, and the tremendous and widespread freedoms and wealth that result, and oppose those who prefer the horrific norms of human history.

          But that’s just me. 🙂

          –Andrew, @LawSelfDefense

          Milhouse in reply to Milhouse. | March 9, 2016 at 11:51 am

          It’s not at all clear that the position you and I share was that of the founders. Sanders would claim that his position is perfectly compatible with individual liberty as the founders understood it, which he would say does not include the liberty to ignore a drowning man when you are able to rescue him. On the contrary, he would say that he is defending an individual right to survival, without which all other rights are irrelevant.

          Note that Jefferson changed the usual formulation of the basic individual rights, “life, liberty, and property”, substituting “the pursuit of happiness”, which is open to a wide range of interpretation. It’s very plausible that he did so in order to accommodate those who did not believe that property is a fundamental right equal to the other two. The view that the right to the unfettered and exclusive enjoyment of ones property is inherent in the concept of self-ownership depends on philosophical axioms that you and I share but that can’t be proven and are far from universally held.

assemblerhead | March 8, 2016 at 5:11 pm

If Porter has has any sense at all, he will “plead the 5th” to any and all questions.

Only a complete imbecile would NOT know the Feds are waiting for their turn at “kangaroo court”.

Anything he says will be used against him, by the Feds, regardless of the State level Court’s wishful thinking.

He has a choice of punishments : contempt of court & sentencing or murder conviction & sentencing
Personal Opinion : I would take the contempt of court.

    Milhouse in reply to assemblerhead. | March 8, 2016 at 7:17 pm

    On what basis do you think you know federal law better than the state court does? Murphy v Waterfront Commission seems pretty clear that the feds can’t use such testimony or its fruits in a federal prosecution.

      If I were Porter’s attorney, I would examine that grant of immunity VERY, VERY carefully to make sure it was entirely air-tight, so that no other Jurisdiction can ever use any information or any developed information off of information provided in any way, ever against Mr. Porter.

      If there was so much as a sliver which might slip in, I would advise him to refuse the immunity and stand on his 5th Amendment rights.

      Actually, If I were Porter’s attorney, I might do that anyway unless it was a general grant of immunity from prosecution. If the Prosecutor wants the info that badly, take Porter off the table entirely.

      The Feds have proven able to do a great number of things which they previously have been thought to be forbidden in the last seven years. Would it be a reasonable precaution for the defense to request a statement from the Federal prosecutor stating in clear language that he/she will not attempt to use Porter’s testimony in the state trial against him in the what must be certainly the inevitable Federal civil right trial to come? If the prosecutor accepts, good, and if he/she refuses, this allows the defense to in effect point and say, “See, the Feds are planning to use my client’s testimony here against him in a future trial, regardless of the law.”

        mariner in reply to georgfelis. | March 9, 2016 at 8:50 am

        That would be just as useless. The Feds would just get another prosecutor, and say that the new prosecutor is not bound by any promises made by any other prosecutor.

Gremlin1974 | March 8, 2016 at 5:34 pm

Not terribly surprised. I think they are gonna target Goodson. When Porter wasn’t convicted it ruined their plans to try to force Goodson into a plea deal, imho.

Now what I expect to happen is after all of this for Porters testimony to basically amount to nothing and to have no major outcome on the cases, but that is just me.

#andrewbranca

I was taught years ago, that a State witness granted immunity by a State cannot be compelled to testify if such testimony could incriminate him under the laws of another jurisdiction. I further learned that a State grant of immunity was not binding on other Jurisdictions. Each Jurisdiction was free to adopt its own laws and court rules regarding admissible evidence. My notes are dusty and my knowledge is outdated.

Has the law changed significantly since those long ago days? If it has, I’d appreciate a primer.

    Milhouse in reply to objection. | March 8, 2016 at 7:21 pm

    See Murphy v Waterfront Commission , linked by justicewarrior above. It seems that testimony compelled in state court under a grant of immunity, and its fruits, are not admissible in federal court.

“i don’t really remember details, because this has all been so traumatic…”

“X did thus and so… no wait, i think they really did this…or was it that?”

give them useless testimony: you’ll never be able to get rich by writing a book, but at least you won’t be in prison

    Estragon in reply to redc1c4. | March 8, 2016 at 6:27 pm

    Except Porter was initially treated as a witness and gave a statement before being charged by Mosby, didn’t he? He can’t really repudiate that if he ever wants to work in LE again (somewhere else, of course).

      redc1c4 in reply to Estragon. | March 8, 2016 at 7:02 pm

      he’s never going to w*rk in LE again…

      as for the statement, that’s all they have. don’t expound on it, and don’t corroborate it either…just say, well, that was a long time ago. i’ve been under so much stress, etc, etc, etc…

      there’s not much they can do, and expert medical testimony to back up the memory issues shouldn’t be hard to find. it’s human nature to want to forget traumatic events.

        Milhouse in reply to redc1c4. | March 8, 2016 at 7:23 pm

        There’s no reason he shouldn’t work in LE again. Any normal police force ought to be happy to snap him up, once he’s out of this thicket. After all, it’s pretty clear that he did nothing wrong. If he wanted to keep his Baltimore PD job, he could probably sue to make them keep him.

          Gremlin1974 in reply to Milhouse. | March 8, 2016 at 9:00 pm

          His life would be in danger in Baltimore. I would suggest that he move at the first opportunity.

          That’s arguably true for every single person living in Baltimore.

          –Andrew, @LawSelfDefense

          Milhouse in reply to Milhouse. | March 9, 2016 at 9:14 am

          Speaking of which, I still don’t understand why Darren Wilson resigned just because they asked him to. Unless they gave him a payout he can live on for the rest of his life, it seems to me he should have insisted on staying, and sued them if they fired him. Why should he care if he’d become a liability to them? He did what they hired him to do, and he did it with distinction, so the consequences should be their problem, not his. If his fame makes him unfit to work the street then put him on a desk, or put him on permanent disability at full pay.

          I understand why nobody else wants to hire him, because they don’t want the publicity, but surely there’s a police force out there with the balls to use his demonstrated expertise. Or some other employer who needs a crack shot like that. Not a bullet gone astray, and not a bullet fired unnecessarily. Compare that to the shooting record of most policemen.

Let’s assume Porter testifies under the state’s guarantee that he has immunity during a Federal trail. And then later the Fed’s say “Sorry, Maryland doesn’t have the authority to give you immunity from the Feds”. What kind of redress, if any, does Porter have?

    redc1c4 in reply to rabidfox. | March 8, 2016 at 7:03 pm

    non, AFAIK. unless he has federal immunity, the DOJ can do anything it wants.

    after all, they’re the feds: rule of law doesn’t apply to them.

      redc1c4 in reply to redc1c4. | March 8, 2016 at 7:06 pm

      “none”… stupid fingers

      rabidfox in reply to redc1c4. | March 9, 2016 at 6:01 pm

      That’s pretty much what I figured. We have a 5th Amendment for a reason and I would think that any contempt charges against someone who does not have iron clad immunity would be unConstitutional.

JackRussellTerrierist | March 8, 2016 at 6:19 pm

I think Porter’s testimony, under normal circumstance, would be a nothingburger because the entire case is a nothingburger. But when the ends are driven by politics instead of justice or even fair legal interpretation, it’s time to shut up. Don’t feed the bastards. I wouldn’t say a word. If that means jailing for contempt, so be it.

Has anybody even heard from the feds? Eh, it doesn’t matter. They’d just move the goal posts when the time came.

It is a big nothing. Let him testify truthfully, exactly as he did at his own trial. The truth is that he did nothing wrong, so just keep saying that.

    Gremlin1974 in reply to Milhouse. | March 8, 2016 at 8:59 pm

    But remember Milhouse this time he won’t really be questioned about what he did, but more about what the current defendant did or didn’t do.

      Milhouse in reply to Gremlin1974. | March 9, 2016 at 8:56 am

      So? Let him say that. How does it harm him? Let him learn his original testimony by heart and repeat it word for word, so there will be no perjury trap. “Officer, that’s exactly what you said at the last trial.” “Why, yes it is, how perceptive of you to notice. The facts haven’t changed, so neither has my testimony.”

Richard Aubrey | March 8, 2016 at 8:04 pm

Milhouse. Keep saying, “I did nothing wrong.”? Or, “What I did wasn’t wrong.”? Or, “Yeah, I did all that stuff but there’s nothing wrong with it.”?
These prosecutors don’t care about “wrong”. They care about the mobs.

In his previous testimony, Porter maintained that the driver (and not he) was responsible for seeking medical attention for the occupant(s) of the van. That’s what the prosecution wants the Goodson jury to hear. What else might they be after?

    dorsaighost in reply to Solomon. | March 8, 2016 at 10:46 pm

    they are after blood, tribal justice and someones head on a pike … GD savages … burn the whole city to the ground …

    Milhouse in reply to Solomon. | March 9, 2016 at 8:53 am

    So let them hear that. It’s the truth, isn’t it? Goodson was responsible for that. Surely he won’t be denying it. If he sticks to the truth he’ll say yes, it was my job to call for medical attention as soon as I became aware that the prisoner needed it, and that’s exactly what I did. At the second-last stop he was doing just fine; at the last stop he wasn’t, so I called for help, because that was my responsibility.

I don’t have the citation, but the State argued in its Brief in Opposition to the Porter Motion that his immunity would be binding on the Feds. So, no problemo!

(I can see the Feds reading the Brief and literally laughing out loud.)

    Milhouse in reply to Redneck Law. | March 9, 2016 at 8:48 am

    It wasn’t just the brief, the court agreed, and the citation is linked above. Read it yourself; do you disagree that it does give him federal immunity, and if so on what grounds? How do you read it, so as to allow federal prosecutors to use his testimony or its fruits against him?

Seriously, before commenting on this decision people really need to read Murphy v Waterfront Commission, which says plainly:

“a witness does not need any statute to protect him from the use of self-incriminating testimony he is compelled to give over his objection. The Fifth Amendment takes care of that without a statute.” Adams v. Maryland, 347 U. S. 179

[…]

We hold that the constitutional privilege against self-incrimination protects a state witness against incrimination under federal as well as state law and a federal witness against incrimination under state as well as federal law.

[…]

[I]n order to implement this constitutional rule and accommodate the interests of the State and Federal Governments in investigating and prosecuting crime, the Federal Government must be prohibited from making any such use of compelled testimony and its fruits. [Footnote 18]

This exclusionary rule, while permitting the States to secure information necessary for effective law enforcement, leaves the witness and the Federal Government in substantially the same position as if the witness had claimed his privilege in the absence of a state grant of immunity.

It follows that petitioners here may now be compelled to answer the questions propounded to them.

[Footnote 18]: Once a defendant demonstrates that he has testified, under a state grant of immunity, to matters related to the federal prosecution, the federal authorities have the burden of showing that their evidence is not tainted by establishing that they had an independent, legitimate source for the disputed evidence.

[…]

We have now overruled Feldman and held that the Federal Government may make no such use of the answers. Fairness dictates that petitioners should now be afforded an opportunity, in light of this development, to answer the questions. Accordingly, the judgment of the New Jersey courts ordering petitioners to answer the questions may remain undisturbed.

How can you read that and not conclude that (1) Porter must indeed testify, and that (2) the feds would be precluded from using his testimony or its fruits against him?

    J Mann in reply to Milhouse. | March 9, 2016 at 12:08 pm

    Thanks Millhouse,

    Looking at Porter’s appeal brief, it doesn’t look like Porter is arguing that his statements in the criminal trial could literally be introduced in a federal trial, he’s arguing that the post-Murphy case law requires the feds to take steps to ensure that their prosecutors won’t be “tainted” by the testimony, and that the feds haven’t done so.

    http://www.mdcourts.gov/cosappeals/pdfs/goodson/2038s15briefappellantporter20160126.pdf

    I agree that it’s thin – if Porter could come up with one case anywhere where similar testimony was used, I think he would.

    nivico in reply to Milhouse. | March 11, 2016 at 1:08 pm

    The problem is that there is an inherent loophole that they already seem poised to exploit… they’ll just claim that anything used against him was the fruit of his earlier statements:

    http://www.baltimoresun.com/news/maryland/freddie-gray/bs-md-ci-appeals-court-ruling-freddie-gray-20160308-story.html

    Those involved in the case say prosecutors face a complicated task in their quest to retry Porter later. They will have to prove that nothing Porter says during his testimony under immunity will be used against him or be considered, a process that could require a so-called taint team to screen the testimony.

    Yet Assistant Maryland Attorney General Carrie Williams, who argued the prosecutors’ case last week before Maryland’s high court, contended that Porter’s first trial offers a road map for what prosecutors knew before any later testimony, benefiting both Porter and the state.

    “I think everyone’s better off,” she told the judges.

    Porter’s argument against being forced to testify against his co-defendants revolved around his attorneys’ fears that prosecutors had called him a liar during his trial and could seek to trip him up through his testimony at other trials and charge him with perjury. They also contended that the limited immunity he had received would not protect him from possible federal charges.

    “Didn’t he make himself a witness?” Court of Appeals Judge Clayton Greene Jr. asked at last week’s hearing, referring to the fact Porter gave statements to police and testified on his own behalf. “Isn’t the cat out of the bag?”

Milhouse,
could you please enlighten us with your cv? We know the legal backgrounds of the Prof and Andrew, but you have a degree of combative, in-your-face certainty regarding legal matters that even experts such as they lack, and I’m curious what backs it up.
It would be good to know if I’m dealing with Milhouse the legal expert or Outhouse the manure spreader.
Thanks
VG

    Milhouse in reply to VaGentleman. | March 9, 2016 at 10:45 am

    CVs are irrelevant in ordinary discourse. All that matters is the strength of ones arguments. Murphy is linked above. You are free to read it for yourself and see whether you can twist it into a different interpretation.

    If you are impressed by CVs, however, then you ought all the more to respect my argument, since it is backed by two courts of law, while the contrary argument is backed by nothing at all. I rest on the CVs of those two courts.

      VaGentleman in reply to Milhouse. | March 9, 2016 at 11:14 am

      Oh, come on now! Fess Up! You must be a lawyer! The way you avoided my question and answered the one you wanted to answer was masterful.

About that immunity. If I were Porter I would be worried about getting the Martha Stewart treatment. If his testimony varies in any way then they’ll hit him with a perjury/obstruction charge and nail him on that.

    JackRussellTerrierist in reply to tkc882. | March 9, 2016 at 12:51 pm

    Bingo!! Winner, winner, chicken dinner!

    Milhouse in reply to tkc882. | March 9, 2016 at 2:29 pm

    Martha Stewart actually did lie to the investigators. She claimed not to have heard that Waksal was dumping his Imclone stock before she sold hers, and that her stock was sold automatically because she’d long ago placed an order to sell if it ever hit $60, and neither of those statements were true. If she’d told the truth, that yes, she did get a tip from her broker that she should sell the stock, and accordingly sold it, she’d have saved herself a conviction and prison time.

    Milhouse in reply to tkc882. | March 9, 2016 at 2:32 pm

    Perjury requires that the misstatement be both deliberate and material. If he sticks to the truth, and says as little as possible, he shouldn’t be in any danger. If fear of being caught in a contradiction were a valid reason not to testify then nobody could ever be compelled to testify, in any case, and that’s clearly not so.

I can bring little or nothing to the learned legal beagles although I’ve learned a lot reading through the posts. I would like to point out that Porter has been found guilty on all accounts including being a racist (even though he’s black) by the court of Public Opinion. From what I’ve gleaned following the case over the last many months, it’s unlikely he brings anything relevant to the case against his peers other than corroboration. What it will do is attach his face to every news story in Baltimore. This will make it virtually impossible to get a fair trial or retrial anywhere within a thousand miles of there. If it was possible for him to say he’ll do it if they move his trial to Oklahoma that might be an option. I know Milhouse, that’s not an option according to this or that statute. That’s what’s so nice about living in my world. I can be nonsensicle.

    Milhouse in reply to DanJ1. | March 9, 2016 at 4:58 pm

    The “court of public opinion” has no power, so long as jurors are willing to set aside what they thought before the trial and listen with an open mind to the evidence presented. Porter’s experience was that nearly all his jurors were willing and able to do that. That’s a good sign.

Richard Aubrey | March 9, 2016 at 3:50 pm

Milhouse.
WRT caught in a contradiction: How about a manufactured contradiction?
Fitzpatrick presented dueling memories to a DC jury and Libby was convicted.

    Milhouse in reply to Richard Aubrey. | March 9, 2016 at 4:55 pm

    Unlike FBI interviews, testimony in open court has plenty of witnesses, is transcribed live, and perhaps is also recorded (whether legally or not), so a future jury would not have to rely on some FBI agent’s recollection of what was said.

You are assuming that we have an ethical prosecution and an ethical judge who will not give wide leeway to what the prosecution may ” find ” on their own in Porter’s retrial.
The request for testimony in Nero’s, Miller’s and Rice’s trial was just a stalling tactic.
This is all political theater and Mosby wants it put off till the fall. That way we can have several Officers on trial at election time. Tensing Oct 24 Van Dyke Oct 21 Slager Oct 31 . and the Baltimore 6 all fall. Sounds like a nice get out the minority vote party.

HYPOTHETICAL QUESTION: So what happens if Porter simply answers “I do not recall” and he further answers “No, that would not refresh my memory” when asked if reviewing his previous statements might help jog his memory?

Worked for Trayvon Martin’s family and Chad Green 😉

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