Defense attorneys for Baltimore Police Officer William G. Porter are arguing that he cannot be compelled to testify against Officer Caesar R. Goodson Jr. in Goodson's trial in the death of Freddie Gray.
In a motion to quash a subpoena requiring him to appear as a witness for the prosecution at Goodson's trial, Porter's attorneys said he plans to assert his rights under the state and federal constitutions to decline to testify. Porter also plans to decline to testify in the trial of Sgt. Alicia White, the motion said.
"Calling Officer Porter at the Goodson and White trials will not only result in his rights being violated, but will necessitate a quagmire in which rights are trampled on all sides in the ensuing free-for-all," his attorneys wrote in the motion, filed Monday.
Jury selection in Goodson's trial is scheduled for Monday. White's trial is scheduled for Jan. 25. Prosecutors have said Porter is a "material witness" against the two.
Goodson was driving the police van in which prosecutors say Gray suffered a severe injury following his arrest. Goodson faces second-degree murder and other charges. White, a supervisor on the day of Gray's arrest, faces involuntary manslaughter and other charges. All of the officers charged in Gray's arrest and death have pleaded not guilty.
Porter's trial ended last month in a hung jury, and he is scheduled to be tried again in June. Porter's attorneys say their client will assert his right not to testify in Goodson's case at a pretrial hearing on Wednesday, at which prosecutors plan to propose that Porter be given immunity to speak without his testimony being used against him at his retrial.
The defense says the state believes such immunity would eliminate Porter's ability to invoke his Fifth Amendment right against self-incrimination, forcing him to answer questions under penalty of contempt.
Such an arrangement is known as "use and derivative use" immunity. It is different from "transactional" immunity, which would assure Porter would not be charged in the crimes to which he testifies. The latter has not been offered by the state.
If Porter is compelled to testify under the proposed immunity arrangement, his attorney's argued, it would fail to protect him in several ways — thus abridging his constitutional rights.
First, his attorneys wrote, the prosecution called Porter a liar on multiple occasions during his trial for involuntary manslaughter and other charges. They outlined at least 20 instances in which the state either called Porter a liar outright or suggested he was being deceitful.
Calling him to the stand in Goodson's case would expose him to repeating his testimony, which they've already characterized as a lie, or changing his testimony, which would provide evidence of perjury by its nature, Porter's attorneys said.
"Effectively, the state wishes to compel Porter, through the farce of a grant of immunity, to lay a foundation for evidence that the state has deemed as constituting an obstruction of justice and perjury," they wrote.
They also noted that a federal investigation into Gray's death from injuries sustained in police custody is ongoing, potentially exposing Porter to investigation by federal authorities that they said the state's immunity would not necessarily apply to.
Gray, 25, suffered a broken neck and a severe spinal cord injury in the back of a police transport van in April. His death touched off widespread protests against police brutality, and his funeral was followed by rioting, looting and arson. The Justice Department launched its own investigation.
Porter's attorneys wrote that Maryland U.S. Attorney Rod J. Rosenstein and at least two members of his office watched Porter testify during his trial, and that witnesses in the case have mentioned being questioned by the FBI.
"It is therefore, surely, undeniable that Officer Porter remains in the sights of the United States," Porter's attorneys wrote.
Porter's testifying in Goodson and White's cases — regardless of their outcome — would also cast him in a negative light for future potential jurors heading into his own retrial in state court, his attorneys argued.
"If Officer Goodson or Sergeant White were to be acquitted it is all but inevitable that jurors would conclude that Porter — the star witness — was not credible," they wrote. If Goodson and White were convicted, they said, jurors would assume Porter had provided incriminating evidence under immunity.
Porter said at his trial and in a statement to police investigators that he told both Goodson and White that Gray would need to go to the hospital. If he doesn't take the stand at Goodson's and White's trials, prosecutors would not be allowed to use his statement to police, either. White provided a statement to police, but Goodson did not.
Federal authorities do not comment on open investigations. Prosecutors and defense attorneys are forbidden from discussing the case because of a gag order imposed by Judge Barry Williams.
David Jaros, a University of Baltimore law professor who has been following the case, said the defense has "a lot of good points" in its motion, and the state's proposal is a "novel theory" to compel testimony that the court is unlikely to accept.
The prosecution is "trying to have their cake and eat it too, and have two trials and then have [Porter] retried too, is questionable," he said.
Jaros said it would be more common for the state to offer Porter transactional immunity, essentially agreeing to drop the charges against him in exchange for his testimony.
"The state can in this case legitimately say, 'We gave a full effort trying to get Officer Porter. Unfortunately that case ended in a mistrial, so we have to do some cost-benefit analysis, weighing our odds of getting Officer Goodson versus a second shot at getting Officer Porter,'" Jaros said.
Steven H. Levin, a former federal prosecutor, said even if the prosecutors offered Porter transactional immunity to testify, he may still turn it down because of the potential of being prosecuted federally. Levin, now a defense attorney in Baltimore who has represented police officers in high-profile cases, said the defense motion raises questions about the integrity of the legal process if the prosecution were allowed to put Porter on the stand after calling him a liar.
"You are aligning yourself with a witness who you believe to be lying, and that raises not just legal but ethical issues," he said.
Judge Charles G. Bernstein, a former federal public defender, long-time trial attorney and former Circuit Court judge, said he believes the state's immunity would protect Porter against his testimony being used by federal investigators, and there is case law to support that view.
He also said he isn't convinced by the perjury concerns of the defense, because the state could argue that the testimony it wants from Porter is not the information it says he lied about.
The latest filing is one of many pending motions in the case that could be addressed Wednesday. A review of an antiquated court docket system on Tuesday also revealed that other filings have been made under seal.