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Freddie Gray case: Maryland high court says Officer Porter must testify against all five co-defendants

Maryland appeals court says Officer Porter must testify against all 5 co-defendants in Freddie Gray case

Maryland's highest court ruled in favor of prosecutors in the Freddie Gray cases Tuesday, ordering that Baltimore police Officer William G. Porter can be compelled to testify against his five fellow officers.

The Court of Appeals rejected Porter's request that he not be forced to testify at the trials of Officer Caesar R. Goodson Jr. and Sgt. Alicia D. White. It also reversed an order by Circuit Judge Barry G. Williams that denied prosecutors' request to call Porter to testify against three other officers, Edward M. Nero, Garrett E. Miller and Lt. Brian W. Rice.

The rulings allow for the resumption of the officers' trials, which have been halted since January. On Tuesday, Rice's trial — originally set to begin Wednesday — was rescheduled for April 13, judiciary spokeswoman Terri Charles said. She noted that the date could change, and it will be up to the court to set a schedule for the remaining trials.

The high court's decision was a victory for prosecutors, who argued that Porter's Fifth Amendment right against self-incrimination would not be violated by requiring him to testify under a grant of limited immunity. Under the immunity, his testimony at the officers' trials cannot be used at his own retrial. Porter's first trial ended in a mistrial in December when jurors were unable to reach a unanimous verdict on any of the four charges against him.

Prosecutors also contended that Williams wrongly blocked their authority when he ruled that they could not call Porter to testify at the Nero, Miller and Rice trials. They had not said previously that Porter was considered a witness in those cases, and Williams said their deciding to call him later was a stall tactic.

"I think [prosecutors] have weathered the storm," said Douglas Colbert, a law professor at the University of Maryland. "They've been doing that since the beginning. There have been so many efforts to either delay or derail the prosecution. ... Both sides as well as the public are served when we are able to hear the truth about what happened to Freddie Gray on April 12th."

It was not clear whether Porter's attorneys, Gary Proctor and Joseph Murtha, would try to appeal the decision to the U.S. Supreme Court. In the wake of the Court of Appeals rulings, Porter must testify or face jail time for contempt.

Attorneys in the cases, who are barred by gag order from speaking publicly about them, declined to comment.

William "Billy" Murphy Jr., the civil attorney for Gray's family, said prosecutors' request to call Porter as a witness was "straightforward" and the appeals court ruling was correct.

"This is the definitive ruling for all intents and purposes," Murphy said.

The high court judges did not expound on their decision, which came in the form of a two-page order less than a week after the judges heard arguments in Annapolis. A more detailed ruling is expected to be issued in the coming weeks.

Attorneys on both sides, as well as Williams, agreed that while prosecutors have discretion to grant immunity, it was unprecedented in Maryland for a defendant awaiting trial to be compelled to testify against co-defendants.

Defense attorneys say that could open the door for prosecutors to force co-defendants, even those who had invoked their right to remain silent, to testify at the trials of others.

David Jaros, a law professor at the University of Baltimore, said attorneys will be anxiously awaiting the more detailed ruling to determine how the court viewed the issues.

"What remains to be seen is whether or not this is a narrow victory that simply speaks to what can be done in the Freddie Gray cases, or if this is a new arrow in the quiver of prosecutors when they deal with co-defendant cases," Jaros said. "I hope the answer is that the kind of unique circumstances here makes this OK in this instance, but shouldn't and will not change how co-defendant cases are typically tried."

Williams ordered last year that the six officers would have separate trials and set a schedule that put Porter's trial first. After the Porter case ended in a mistrial, the court moved on to Goodson's case, with White's to follow. But those trials were postponed after Porter appealed Williams' order that he testify to the Court of Special Appeals, the state's second-highest court.

That moved up the trials of Nero, Miller and Rice. But when Williams denied the state's motion to compel Porter to testify in those trials, prosecutors appealed, and all five cases were halted and taken up by the Court of Appeals.

Gray, 25, died after being arrested in April. The state medical examiner's office said Gray suffered a severed spine while being transported without restraints in the back of a police van. His death occurred amid heightened focus nationwide on deaths of black men in police custody, and touched off weeks of unrest in Baltimore that escalated into rioting. The city has agreed to pay a $6.4 million settlement to Gray's family.

The six officers involved in Gray's arrest and death face charges that including manslaughter, assault, second-degree murder and misconduct in office. All have pleaded not guilty and are free on bail.

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?"

Meanwhile, defense attorneys and many legal observers believed prosecutors were making a long-shot appeal of Williams' order denying their request to call Porter as a witness at the other trials.

Much of that contention was based on procedural grounds. A variety of rulings are issued by judges during pretrial motions, but can only be appealed once the trial has concluded. The Court of Appeals seemed unsure whether the issue was appealable, asking the parties to address it in their briefs to the court.

Rice's attorney, Michael Belsky, told the judges that there was not a single instance "in American jurisprudence" when such an appeal was taken up mid-trial. And defense lawyers said the state was asking the judge to be a "rubber stamp" for the prosecution by taking away his discretion.

The Baltimore state's attorney's office's chief deputy, Michael Schatzow, said state law required Williams to approve prosecutors' requests, and contended that Williams' ruling on the motion was actually a self-contained civil hearing that had concluded and could be appealed.

Schatzow said Williams' ruling had "undermined the state's case in a pending proceeding, violated Maryland's separation of powers principles, and, if allowed to stand, threatens to impede criminal prosecutions and investigations throughout the state."

What's next

The court is expected to set a new trial schedule for the Baltimore police officers charged in the Freddie Gray case, said judiciary spokeswoman Terri Charles. On Tuesday, the court rescheduled the trial of Lt. Brian W. Rice — originally set to begin today — to April 13, though that could change, Charles said.

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