Judge denies motion to force Porter to testify against three fellow officers in Freddie Gray case

Judge Barry G. Williams denies the prosecutors motion to force Porter to testify against three fellow officers in Freddie Gray case. (Kevin Richardson/Baltimore Sun video)

The next trial of a Baltimore police officer in the death of Freddie Gray could begin as early as next month after a judge on Wednesday rejected a request from prosecutors that could have tied up the cases in the state appeals court indefinitely.

Judge Barry G. Williams questioned prosecutors' motives for asking him last week to compel Officer William G. Porter to testify against all five of his fellow officers who are facing trial. Until then, they had said Porter was a witness against only two officers.


Williams said prosecutors appeared to have a "dual purpose" for making their request — one being to stall the trials. He denied the motions.

Porter has been ordered by Williams to testify in the trials of Officer Caesar R. Goodson Jr. and Sgt. Alicia D. White, and Porter's appeal to block that order is tied up in the Court of Special Appeals. That court will not hear his appeal until March, and could take months to decide.


Joseph Murtha, an attorney for Porter, said calling his client to testify at the rest of the trials — of Officers Edward M. Nero and Garrett E. Miller and Lt. Brian W. Rice — was a "disingenuous pretext for the purpose of getting a postponement."

Prosecutors said that they had not previously contemplated calling Porter at all of the trials, but adjusted their strategy after Porter's trial last month ended in a mistrial.

"We tried to learn something from our experience in trying Officer Porter," Chief Deputy State's Attorney Michael Schatzow told Williams. "We think we have the right to change our mind, and we acknowledge we are changing our mind."

Nero's trial is tentatively slated for Feb. 22, with Miller to follow on March 7 and Rice on March 9. But an attorney for Nero indicated Wednesday that he had a scheduling conflict, and Miller and Rice's trials are not likely to move forward just two days apart.


Gray, 25, suffered a severe spinal cord injury in police custody last April. The six officers were charged May 1 and indicted by a grand jury the next month. All have pleaded not guilty.

Nero, Miller, Rice and White attended the hearing Wednesday; Porter and Goodson did not.

In September, prosecutors called Porter a "necessary and material witness" against Goodson and White. Williams ordered six separate trials and scheduled Porter to be tried first.

Prosecutors' plans were complicated last month when the jury in Porter's trial was unable to reach a verdict on any of the four charges against him and Williams declared a mistrial.

The judge ruled that Porter would be retried in June.

Goodson's trial was scheduled to begin this month. Porter was subpoenaed to testify, but invoked his Fifth Amendment right against self-incrimination with his charges still pending.

Williams granted prosecutors' request to force Porter to take the stand, under a form of limited immunity, in both Goodson and White's trials. Porter's attorneys immediately sought an injunction from the Court of Special Appeals to block him from testifying, and Goodson's trial was postponed pending a decision. Williams postponed White's trial on Wednesday.

Prosecutors said last week they were moving to have Porter compelled to testify at each of the remaining trials.

In court Wednesday, Schatzow said prosecutors now believe Porter's testimony would help the state prove reckless-endangerment charges against Nero and Miller and manslaughter and assault charges against Rice.

Porter gave a statement to investigators in which he explained arriving on the scene as Gray was being put into a police van.

Schatzow said Porter's testimony would help show Gray was not secured in a seat belt and establish a timeline for when Gray was injured, which would help jurors understand the officers' culpability.

But Williams said he had scrutinized Porter's statement and testimony, and questioned whether Porter's statements about the officers' actions at those stops were "admissible and relevant."

Williams noted Porter said he had turned away from the van to deal with a crowd forming while the other officers were still handling Gray.

Williams also chastised prosecutors for not concluding earlier that Porter would be a witness at "every single case."

Murtha, Porter's attorney, noted that prosecutors gave immunity to other officers on the scene who were not charged at all, at least one of whom had a "bird's-eye view" of what occurred, and could just as soon call those officers to the stand as Porter.

"What they want to do is take [Porter] hostage for five cases, then torture him in his own trial," Murtha said. He said prosecutors were "exploiting their privilege."

Schatzow acknowledged that prosecutors' position had changed but said it is the state's prerogative to call witnesses of its choosing and a judge shouldn't "interfere with the state's ability to make reasoned judgments about who may or may not be necessary."

"This is the state's attorney's office's decision to make," Schatzow said. "Once they make it, and make it in good faith, we're done."

He said that a decision by Williams to deny the state's request to call Porter would be "premature" and that the relevance of his testimony was a matter to be taken up at trial.

Attorneys for Nero, Miller and Rice spoke only briefly at the hearing, but argued in filings that the state was trying to "avoid trying the most factually and legally tenuous cases first."

Granting the prosecutors' motion to compel Porter to take the stand in their trials, they said, "would in essence reward the State for its tactical inadequacies and utter disrespect for the Defendants' constitutional rights."

"If someone is to be blamed for not having sufficient foresight, that should be me," Schatzow said. But he said prosecutors were allowed to change strategy because it was in the "public interest."

Williams said it was "also in the public interest" that the defendants' rights be protected. Rice's attorney noted that his client is a father of four who has not been paid by the Police Department since he was suspended pending the outcome of his case.

Gene Ryan, president of the union that represents Baltimore police officers, applauded the judge's ruling.

"Williams' decision to deny the prosecution's request to force Officer Porter to testify was a positive one for the defense and we look forward to moving this process ahead," he said in a statement.

What's next

•With the trials of Baltimore Police Officer Caesar R. Goodson and Sgt. Alicia D. White on hold, the trial of Officer Edward M. Nero is tentatively scheduled for Feb. 22.


•The Court of Special Appeals is scheduled to hear arguments in the appeal of Officer William G. Porter in early March.

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