Another strange, headache-inducing twist in Freddie Gray cases

State said Porter lied, now they get him as star witness against other cops

Given Tuesday's order by the Maryland Court of Appeals, I'm trying to imagine Officer William Porter making nice with the prosecutors who pretty much called him a liar just a few months ago, and that picture does not easily form. I'm having trouble seeing Porter having a chatty lunch with Marilyn Mosby, too.

But there's nothing wrong with my imagination.

Guys who get immunity from prosecution do not as a rule become buds with prosecutors. Guys who get immunity usually do so because they're in trouble and they don't have a choice. And prosecutors offer them a deal because they don't have much choice; their case might be in trouble. The witness is valuable, even the linchpin of a successful prosecution, so the state makes a trade-off.

Immunity never smells sweet, but it's often how state and federal prosecutors get convictions in gang cases, drug cases, racketeering cases, smuggling cases, all kinds of criminal enterprises.

It's all business. Nothing personal. It's what the law calls "transactional." A guy testifies for the state and the state lets him walk.

The Porter case is strange because it's upside down and backwards from everything else we've seen. That's why legal experts use terms like "unprecedented" and "uncharted waters" to describe it.

Here we have a Baltimore police officer — one of six charged with various offenses in connection with the death of Freddie Gray — who will be compelled to testify against his colleagues. And this after he's already stood trial (which ended with a hung jury) and after prosecutors suggested he uttered lies when he testified in his own defense in December.

It was Janice Bledsoe and Michael Schatzow, deputies to Mosby, the Baltimore state's attorney, who prosecuted Porter and questioned his veracity.

In an op-ed article published in The Baltimore Sun in January, Steven H. Levin, a former federal prosecutor, took the Porter prosecutors to task for repeatedly calling the officer a liar as they made closing arguments in his trial.

Levin was incredulous that the same prosecutors now would want Porter to testify for the state against his colleagues.

"The hypocrisy of the state's position can only serve to further erode the public's faith in the criminal justice system."

Really?

I had to think about this, even though thinking about the legal twists related to the Freddie Gray Six gives me a headache.

First of all, as to the question of prosecutorial conduct raised by Levin: Did Mosby's deputies go too far in characterizing Porter? At some point, the jury heard the words "lie" and "lied." In a post-trial motion, Porter's defense team cited several instances in which the state called Porter a perjurer.

Levin claimed this was highly improper.

I asked around and got different opinions.

Levin was correct to cite the 1935 Supreme Court admonition that a prosecutor "may strike hard blows, but not foul ones." But it's not clear that the Porter prosecutors went too far.

"I think the Maryland rule about prosecutors not making public comments about the strength of a case and the veracity of witnesses often gets conflated with the role of prosecutor at trial," said J. Amy Dillard, an associate professor at the University of Baltimore School of Law. "When a prosecutor confronts a [defense] witness with inconsistent statements, then the prosecutor can and should comment on the credibility of that witness to the jury in closing.

"Saying that a witness lied and calling a witness a liar is a thin line. I've seen prosecutors admonished by the trial judge about crossing that line, but I've never seen that kind of conduct as reversible error in a jury trial."

David Gray, a law professor at the University of Maryland, agreed. "I assume," he said, "that all these statements were made in the context of assessing evidence. So the prosecutor said, 'That's a lie,' and then went on to point to evidence tending to show that the specific bit of testimony at issue was not true. If that's the context, then I doubt very much there is any reason to cry foul."

Most of what Bledsoe and Schatzow said in closing struck me as aggressive lawyering. They didn't assert that Porter was a pathological liar; they claimed that some of the statements he uttered in his own defense were lies.

The important question is whether all this makes any difference going forward, now that the state's highest court has spoken.

Nobody asked me, but I doubt it.

For one thing, I can't imagine the state's closing comments about Porter ever being heard by another Freddie Gray jury.

And while the situation might be strange and suggest desperation — prosecutors asserting that Porter lied in winter, then making him a star witness in spring or summer — Maryland's highest court says the deal is allowed under the law. What did I say? Immunity in any form never smells sweet.

drodricks@baltsun.com

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