Prosecutors see Officer Porter as both a liar and a potential witness

Prosecutors want Porter to testify in trials of fellow officers, but told jurors, "He has lied to you."

Prosecutors might have created a problem for themselves this week when they said Officer William G. Porter had lied on the witness stand.

Porter, whose trial ended Wednesday in a mistrial, is one of six police officers charged in the death of Freddie Gray. Prosecutors chose to try him first because they want to call him to testify in the subsequent trials of two of his fellow officers.

But during closing statements this week in Porter's trial, they asked jurors to ask themselves whether he could be trusted on the witness stand.

"He has lied to you," said Chief Deputy State's Attorney Michael Schatzow.

Steven H. Levin, a former federal prosecutor, says that's a problem.

"For a prosecutor to call a witness who the prosecutor has publicly identified as a liar undermines the integrity of the criminal justice system," said Levin, now a defense attorney in Baltimore who has represented police officers in high-profile cases. "The optics are terrible, to say they want to use somebody that they've branded a liar in later trials to convict others."

Further complicating matters: After the mistrial, it's unclear now whether Porter's case will be resolved before the next trial begins. Jury selection in the trial of Officer Caesar R. Goodson Jr., who faces the most serious charges in Gray's death, is scheduled to begin Jan. 6.

Baltimore Circuit Judge Barry G. Williams met behind closed doors Thursday with prosecutors and attorneys to discuss a new trial date for Porter. They reached no agreement, and planned to meet again.

Prosecutors and Porter's attorneys have been barred by a gag order from discussing the case.

Gray, 25, died in April after suffering a severe spinal cord injury in the back of a police van. Baltimore State's Attorney Marilyn J. Mosby filed charges against Porter, Goodson and the four other officers on May 1. All have pleaded not guilty.

In pre-trial motions, prosecutors said they wanted to start with Porter, charged with involuntary manslaughter, second-degree assault, reckless endangerment and misconduct in office, in part because they consider him a material witness against Goodson, the driver of the van, and Sgt. Alicia D. White, a supervisor on the day Gray was injured.

Williams declared a mistrial in Porter's trial after the 12-member jury was unable to reach a consensus on any of the four charges against him.

Legal analysts disagree on whether Schatzow's comments would be admissible in the other officers' trials. But Levin said the damage is done.

"Anyone who is watching the case, which is just about every citizen in Baltimore City, knows what the state called Officer Porter," he said.

And that's not the only challenge.

If a decision is not reached to push the scheduled trials of the five other officers back to allow Porter to be retried first, analysts say, prosecutors could lose what little leverage they have in getting him to take the stand against other officers.

If he were called to testify against Goodson or White while still awaiting a second trial on his own charges, he would likely assert his Fifth Amendment right not to incriminate himself.

If he were tried and acquitted, he could still assert the same right, citing the Justice Department's ongoing review of the case and the possibility that federal charges still could be filed.

If Porter were found guilty, he could try to claim the same right. But prosecutors could try to persuade him to take the stand by promising to seek a lighter sentence for him.

"They could offer some sort of inducement: 'If you testify truthfully, we will give you this benefit,'" said James Cohen, a professor of criminal law at Fordham Law School.

If Porter does not take the stand in his fellow officers' trials, the prosecution will not be able to use his initial statement to police after Gray's death, analysts said, because Goodson and White would not have the opportunity to cross-examine him.

During Porter's trial, prosecutors replayed the recorded statement he gave to detectives investigating Gray's death, then pointed out ways in which they said Porter had added new information in his court testimony to benefit his defense.

The van carrying Gray made several stops after his arrest. At the fourth stop, prosecutors said, Porter told Detective Syreeta Teel that Gray said he couldn't breathe.

Porter had not secured Gray with a seat belt, and did not call for a medic. Prosecutors said those actions constituted criminal negligence.

They also said Porter told Teel and another investigator that he lifted Gray off the floor of the van at that stop and placed him on a bench, without saying that Gray had helped.

When Porter took the stand in his trial, he said Gray told him he couldn't breathe at an earlier stop, when he was not yet injured, and had participated in the effort to get him onto the bench.

Porter's attorneys argued that that assistance contradicted the prosecution's claim that Gray had already suffered his neck injury at the time.

In her closing argument, Deputy State's Attorney Janice Bledsoe took Porter to task for his testimony.

"Who had the motive to be deceitful?" she asked. "It's not Detective Teel. It's Officer Porter."

Porter had argued that he didn't know Gray was seriously injured. Bledsoe said evidence proved that "Porter knew that Freddie was hurt badly."

Schatzow, in his closing, was more blunt.

"Every place that he is stuck" contradicting his statement to investigators, Schatzow argued, "he now comes up with some new explanation."

It is unclear whether the jury believed the prosecutors or Porter, but analysts said the fact that they were hung implies they were split on the issue.

The prosecution's claims that Porter lied won't matter if Porter doesn't take the stand in Goodson's or White's trials. Analysts disagreed on the impact if he does testify.

Cohen said the "short answer" to the question of whether the prosecution's claims matter is 'Absolutely,' with several exclamation points."

The claims that Porter lied could be allowed into evidence in Goodson's and White's trials as "admissions" by the prosecutors, Cohen said, then used by the defense to attack Porter's credibility.

"The prosecution is admitting, literally, that this witness that they are now 'vouching' for lied" on the stand, Cohen said.

David Jaros, a University of Baltimore law professor who has been following the case, said he wasn't sure if the prosecutors' closing statements in Porter's trial would be admissible in Goodson and White's trials.

But even if they were, he said, the prosecutors never said Porter was lying about his general knowledge of the events — which could be all they need from him.

In Goodson's case, for instance, the prosecution likely only needs "where Officer Porter places Officer Goodson throughout the narrative and what Officer Goodson saw or what he was told," Jaros said. "And as far as those things go, I don't think they said he was lying."

Judge Charles G. Bernstein is a former federal public defender, long-time trial attorney and former Circuit Court judge who now presides over cases in Orphans Court.

He is a friend of Schatzow — though he has not talked to him about strategy in this case — and has sat on the bench with Williams. He has tried a case with Porter's attorney Joseph Murtha and knows others involved in the proceedings.

Bernstein said Schatzow and Bledsoe almost certainly plotted out the implications of their strategy of impugning Porter's character before Porter's trial ever started, knowing they needed him for Goodson and White. They have likely planned to deal with his credibility and their own erosion of it by using Porter's initial statement to police if he strays from his basic testimony about the sequence of events.

"The issue can be responded to," Bernstein said. The prosecutors will "put him on the stand and let him say what he wants to say, but also get in that statement and argue that statement is the truth."

Bernstein said it is likely that prosecutors still want Porter to be tried first: "Since they wanted it that way the first time, I would presume they would still want that."

He and others said Williams could deny their request, but they don't expect it.

"The prosecution, within some limitations, has the right to decide the sequence in multi-defendant trials," Cohen said. "It would be highly unusual for a judge to interfere with prosecutorial choices in that way."

But getting a conviction, getting Porter to the stand in the subsequent trials, and getting testimony out of him that isn't immediately undermined by the defense is another thing entirely, experts said.

"It's just such a crazy scenario," Levin said.

krector@baltsun.com

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