Attorneys for Officer Caesar R. Goodson Jr. say forcing a fellow officer charged in the arrest and death of Freddie Gray to testify against Goodson could lead to scenarios that "completely eviscerate the purpose of their constitutional protections."
Goodson, who drove the van in which prosecutors say Gray was fatally injured last April, is the only one of the six officers who didn't give a statement to investigators.
Circuit Judge Barry G. Williams has ordered Officer William G. Porter to testify at Goodson's trial. If that order is upheld, Goodson's attorneys wrote in a motion made public Wednesday, Goodson could theoretically be compelled to speak as well.
"The effect of [Williams'] ruling leads to the conclusion that Officer Goodson, who never gave a statement regarding this matter (which was his right) and has the right not to testify in his own case, could have been compelled to testify in the trial of Officer Porter in December 2015 under the guise of" limited immunity, they wrote in the motion filed Monday.
"In fact, every single defendant involved in the April 12, 2015 arrest and transport of Mr. Gray could be compelled to testify in the case of Officer Porter (or any other defendant) under the state's theory," they concluded.
Porter's trial last month ended in a mistrial when the jury was unable to reach a verdict. A new trial is scheduled for June.
Goodson's trial was to begin this week but was halted as the state's second-highest court considers a request from Porter to block Williams' order requiring him to testify.
Williams ordered Porter to testify after he was granted a limited type of immunity that would protect his testimony from being used against him. If he does not comply, he could be jailed for contempt.
The order was unprecedented in a case involving co-defendants. But Williams agreed with prosecutors that the law was nevertheless "very clear" and immunity would maintain Porter's constitutional protections.
The immunity "leaves [Porter] with precisely the same rights as if he had not testified," prosecutors wrote. They said Porter's appeal was "doomed to fail."
If they are not able to call Porter, they added, it would result in "irreparable harm by .. effectively gutting" the prosecution's case.
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The state attorney general's office, which represents the state's attorney's office in appeals, told the Court of Special Appeals that Porter's rights were not violated by the order.
Goodson's attorneys agreed with attorneys for Porter, saying the prosecution was making "attempts to circumvent Officer Porter's unassailable right against self-incrimination" and that the type of immunity granted was meant for witnesses, not defendants.
"The state has presented no case law in which use and derivative use immunity was ever given to a defendant in Officer Porter's current situation — a fact the state does not dispute," they wrote.
The Court of Special Appeals has scheduled a hearing for March 4, and a decision could be handed down that day or within three months.
Also this week, Sgt. Alicia D. White filed a motion challenging Williams' order compelling Porter to testify in her case. She argued that she and her attorneys were not present when the decision was discussed between Porter's attorneys and Williams during a hearing in Goodson's case.