State attorneys say there is "nothing unusual or inappropriate" about the court order forcing Baltimore Police Officer William G. Porter to testify at his fellow officers' trials in the death of Freddie Gray, as it provides him with immunity against self-incrimination in his own retrial in the case.
Assistant Attorney General Carrie J. Williams, arguing on behalf of city prosecutors in a brief filed Wednesday before the state's second-highest court, said Porter is "no different than any of the countless witnesses over the centuries to whom the government granted immunity in exchange for their compelled testimony." She also brushed off suggestions by Porter's attorneys that he was being used as a "whipping boy" by prosecutors in their extended litigation against the other officers, and that compelling his testimony flew in the face of hundreds of years of Maryland law.
"The reality is far more mundane — the State has chosen to use one of the many tools in its toolbox to prosecute the officers charged in the death of Freddie Gray," Williams wrote in the state's brief to the Court of Special Appeals.
The issue landed in the higher court after Porter appealed a decision last month by Circuit Judge Barry G. Williams to grant the immunity and compel Porter to testify.
In granting the order, Judge Williams said he was in "uncharted territory," but also that he saw no reason why the limited immunity offered by the state wouldn't be sufficient in protecting Porter's rights.
Gray, 25, died in April from neck injuries suffered while in police custody. Six Baltimore police officers were charged in his arrest and death. All have pleaded not guilty.
Porter was tried first in December, but his trial ended in a mistrial after the 12-member jury failed to reach a consensus on any of the four charges against him. He is scheduled to be retried in June.
Officer Caesar R. Goodson Jr. and Sgt. Alicia D. White were supposed to be tried after Porter, but their trials were halted pending the resolution of Porter's appeal before the higher court.
Porter's attorneys, in their own brief before the higher court late last month, said compelling his testimony would violate his constitutional right against self-incrimination because of his pending retrial and any future federal charges. They said forcing him to testify would also expose him to perjury charges, particularly because prosecutors told jurors that Porter had lied to them at his trial. He questioned whether the state would actually be able to try him again without deriving any benefit from his testifying at Goodson and White's trials.
And, Porter's attorneys said, there has never been an "analogous situation" to which the court could refer for precedent, and that prosecutors were stretching in their attempts to put Porter on the stand solely to salvage their cases against Goodson and White.
Williams, the state's attorney, sought to strike down each of the concerns outlined by Porter's attorneys in the state's brief.
The limited immunity provided to Porter puts on the state the "heavy burden" of showing that nothing used against Porter during his retrial was derived from his testimony in the other officers' trials, she said. When it comes time for Porter's retrial, the state will "have to show the steps it took to prevent taint and Porter is free to argue that whatever steps were taken were insufficient," she said.
Williams also argued that the constitution provides no protections against perjury, and that the "possibility that Porter might perjure himself is not a reason to preclude the State from compelling his testimony."
Either way, she said, prosecutors could not use his immunized testimony in the Goodson and White trials to contrast it with his previous testimony for consistency, she said.
Porter's immunized testimony in the Goodson and White cases also could not be used against him in a federal case, if one is brought, Williams wrote.
In all, Williams argued, Porter's "hand-wringing" about the effect his testifying will have on his own prosecution at his retrial "is unfounded and premature."
Oral arguments are scheduled in the Court of Special Appeals on March 4.