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Officer Porter's attorneys say state is misusing immunity statute in forcing his testimony

Baltimore Police Officer William G. Porter enters a downtown courthouse during his trial last month. His attorneys are trying to prevent him from being forced to testify in the trials of other officers charged in the Freddie Gray case.
Baltimore Police Officer William G. Porter enters a downtown courthouse during his trial last month. His attorneys are trying to prevent him from being forced to testify in the trials of other officers charged in the Freddie Gray case. (Algerina Perna / Baltimore Sun)

Attorneys for Officer William G. Porter say prosecutors are misusing the state immunity statute to force Porter to testify against other officers charged in the death of Freddie Gray.

"For almost a quarter-millennium the legislatures have enunciated laws. The courts of Maryland have interpreted them. And in all that time, there is not an analogous situation which this court can call upon to guide it," Porter's attorneys wrote in a brief filed with the state's second-highest court.

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"That in and of itself speaks volumes to the length the state seeks to go to bend Officer Porter's rights, so that their case against [two fellow officers] does not break."

Circuit Judge Barry Williams ordered Porter to testify at the second-degree murder trial of Officer Caesar R. Goodson Jr. earlier this month, despite Porter's own pending charges in Gray's death. He was granted a limited form of immunity in which his testimony cannot be used against him, but his charges remain in place.

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At the time, attorneys and the judge agreed that forcing a defendant to testify against a co-defendant was unprecedented in Maryland.

"The statute the state seeks to rely on was not remotely meant to cover the situation like the one at bar," Porter's attorneys wrote in their new brief. "It was designed for witnesses."

Six officers have been charged in the arrest and death of Gray. The 25-year-old West Baltimore man suffered a severe injury in police custody last April and died a week later.

All of the officers have pleaded not guilty.

Porter's request for an injunction to block Williams' order is to be heard by the Court of Special Appeals on March 4. Goodson's trial, and that of Sgt. Alicia White, are on hold pending that court's ruling.

Prosecutors say Porter is a "necessary and material witness" in the two trials and have said that not being able to call him would "gut" their cases.

Porter, whose first trial ended last month in a mistrial, still faces charges of manslaughter, second-degree assault, reckless endangerment and misconduct in office.

The Baltimore Sun reported that jurors were one vote away from acquitting him of manslaughter, but were leaning toward convicting him of reckless endangerment and misconduct when they told Williams they were deadlocked.

His retrial date is in June.

Porter's attorneys, in their appellate brief, repeated arguments that Porter has a right not to testify, and that immunity wouldn't protect him from perjury charges after prosecutors repeatedly called his previous testimony untruthful.

They said prosecutors are seeking a "leg up" by having extra opportunities to explore Porter's testimony and answers.

Williams warned prosecutors that granting immunity to Porter was complicating their case against him, and they would have to prove before his retrial that they would not be using or be influenced by his testimony under immunity.

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Porter gave an extensive interview to police investigating Gray's death. He also took the stand at his trial.

Williams has issued a gag order barring prosecutors and defense attorneys from discussing the case.

While compelling a defendant to testify against a co-defendant is unprecedented in Maryland, prosecutors cited a 1984 District of Columbia case in which it happened.

"A duly authorized assurance of immunity is sufficient to supplant the Fifth Amendment privilege because it proscribes any use direct or indirect of the compelled testimony against the witness," the D.C. Court of Appeals ruled in Graves v. United States. "Thus, an immunized witness/defendant must testify at his co-defendant's earlier, separate trial."

Maryland Assistant Attorney General Carrie Williams has written that the immunity extended to Porter by Judge Williams "is sufficient" to protect his Fifth Amendment rights.

Prosecutors have not yet filed their full appellate brief.

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