Maryland's second-highest court temporarily blocked Friday an order compelling Officer William G. Porter to testify in the trial of a fellow officer charged in the death of Freddie Gray.
With the trial of Officer Caesar R. Goodson Jr. scheduled to begin Monday with jury selection, the Maryland Court of Special Appeals did not grant the injunction requested by Porter's legal team but stayed a judge's order forcing him to testify as the appellate court considers whether that would violate his constitutional rights.
Chief Judge Peter B. Krauser said prosecutors needed an opportunity to respond to an injunction request from Porter's attorneys filed Thursday.
That response came later Friday. The Maryland attorney general's office, which represents prosecutors in appeals and other legal matters, argued that Porter's motion was not properly filed and that testifying under limited immunity would not violate his rights.
It was unclear Friday what would happen next. Court officials said jury selection in Goodson's trial would proceed as scheduled Monday but declined to comment on whether a postponement might occur.
Legal experts said the appellate court would likely hold a hearing before ruling on the motion. Goodson's trial could begin with the issue unresolved, but prosecutors would have to refrain from mentioning the prospect of Porter's testimony until given the green light by the appeals court.
"The trial can go forward, and the prosecution can call all of the other witnesses it has," said attorney Linda Schuett, an expert on Maryland legal procedure who is not involved in the case. "The trial doesn't have to be postponed."
Goodson, who was driving the police van in which the state medical examiner ruled Gray suffered a fatal spinal injury in April, is charged with second-degree, depraved-heart murder. He is the second officer to go to trial. A mistrial was declared last month in Porter's case after jurors deadlocked on all four charges, including involuntary manslaughter.
Prosecutors have said they consider Porter a material witness in the cases against Goodson and Sgt. Alicia D. White.
Porter's attorneys contend that requiring him to testify would be a violation of his Fifth Amendment right against self-incrimination and sought an injunction from the appeals court to block the judge's order.
At a pretrial hearing Wednesday, Circuit Judge Barry G. Williams ordered Porter to testify in Goodson's trial, granting limited immunity that he said protects Porter from having his testimony used against him when he is retried in June.
The move to compel a defendant to testify under immunity at a co-defendant's trial is unprecedented in Maryland. Nevertheless, prosecutors argued — and Williams agreed — that the law clearly allows for such a maneuver.
Maryland Assistant Attorney General Carrie Williams wrote in the state's response to Porter's motion that the immunity extended to Porter by Judge Williams "is sufficient" to protect his Fifth Amendment rights.
"Porter cannot establish that the granting of an injunction [to prevent his testimony] is in the interest of justice," she wrote.
Porter's attorneys argued in a motion to quash his subpoena, as well as in their request for an injunction, that prosecutors have repeatedly called Porter a liar, and that he has no protection from being prosecuted for perjury if his statements are deemed inconsistent.
"The Fifth Amendment creates a privilege against compelled disclosures that could implicate a witness in criminal activity and thus subject him or her to criminal prosecution," Porter's attorneys wrote.
They also said he would be vulnerable to potential federal prosecution.
The Maryland statute on immunity is "designed for people without skin in the game: witnesses. Not Officer Porter," they wrote.
Carrie Williams, arguing for the state, wrote that "the state is precluded from using Porter's immunized testimony to prove any charge of perjury that allegedly occurred prior to Porter's testimony in Goodson's trial."
In granting the motion to compel Porter to testify, Judge Williams warned prosecutors that they were headed down a tricky path if they intend to retry Porter. "The second he testifies, it may change the game," he told them this week.
The attorney general's office agreed, saying that prosecutors were taking on a "substantial burden" at Porter's retrial.
"If the trial court erred in admitting evidence that the state failed to prove came from an independent source, Porter will receive a new trial and that evidence will be excluded," Carrie Williams wrote.
Schuett, the expert on court procedures, said it was hard to interpret any significance in the Court of Special Appeals' decision to issue a stay. "They thought the issue was important enough to not deny it outright, which they could have done," she said. "It's hard to read anything other than that."
Attorney Brian Murphy, who is not involved in the case and specializes in appellate work, said the unresolved issues related to Porter will be a "massive distraction" for prosecutors next week if Goodson's trial proceeds as scheduled. But he said it was a problem they created.
He said the prosecutors' use of immunity to call Porter as a witness was unprecedented because it is "cumbersome" and would pose challenges if Porter is tried again.
"Usually when you want to use a witness, you don't prosecute him. You either grant immunity totally or you work out a deal where he gets a lesser sentence. It's never been done this way," Murphy said. "Maybe because it's never been done doesn't mean they can't, but they're clearly building in a ton of problems."