We don't yet know what the effect will be of the decision by a Maryland appeals court to postpone the trial of the officer who drove the police van in which Freddie Gray was fatally injured. But we do know there was no other good option.
At issue is whether one of the six officers charged in Gray's death, William Porter, can be forced to testify with limited immunity at the trials of two of his colleagues — van driver Caesar Goodson and Alicia White — while his own retrial is still months away. (Mr. Porter's first trial ended in a mistrial last month; a retrial is set for June.) Baltimore Circuit Court Judge Barry Williams says yes, but the Maryland Court of Special Appeals is not quite convinced — and rightly so; there is too much at stake to rush forward without considering the longer term legal ramifications. Ultimately, Maryland's highest court, the Court of Appeals, should and almost certainly will be asked to settle the matter.
If Mr. Porter's forced testimony were later found by an appeals court to be in violation of his Fifth Amendment protection against self incrimination, it could upend the eventual verdicts in his upcoming trial and those of Mr. Goodson and Ms. White, in which prosecutors claim that Mr. Porter is a "material witness." There's no putting the testimony genie back in the bottle once it's out, and the last thing the state needs is to increase the odds of having to go through more costly retrials.
As Maryland Special Court of Appeals Chief Judge Peter B. Krauser noted Monday in an order postponing Mr. Goodson's trial shortly before jury selection was set to begin, it is "presumably in the interests of all parties" that the question be resolved prior to the start of that trial.
Mr. Porter's attorneys also have raised concerns that his testimony could affect not just the state's trial against him but a potential federal case down the line. While no federal charges have yet been brought, Maryland U.S. Attorney Rod J. Rosenstein and at least two members of his office watched Officer Porter testify during his first trial, the attorneys wrote in a court filing.
The situation is apparently unprecedented in Maryland. The state has an immunity statute that says "a witness may not refuse to comply with the order [to testify] on the basis of the privilege against self-incrimination" and that no information compelled in court may be used against the witness, "except in a prosecution for perjury" (which the state has agreed not to do in Mr. Porter's case), "obstruction of justice or otherwise failing to comply with the order." So far, no witnesses testifying under the terms of that statute have been actively facing trial, however.
The usual model looks more like the one used to prosecute those who killed Johns Hopkins researcher Stephen Pitcairn in 2010, with state's attorneys cutting a deal with a defendant before testimony was given. In that case, prosecutors agreed to drop murder charges against Lavelva Merritt in exchange for testimony against her co-defendant and lover, John Wagner. Ms. Merritt pleaded guilty to robbery and conspiracy charges and was promised a 30-year sentence with half the time suspended if she followed through on testifying, which she did. Mr. Wagner was ultimately convicted in 2011.
"Without Ms. Merritt's testimony, I'm not sure whether we would have been successful," then Baltimore State's Attorney Gregg Bernstein said after Ms. Merritt was sentenced.
We don't know whether deals have been offered in Mr. Porter's case, but each side has reasons not to want to go that route. Prosecutors have the eyes of the city and nation on them as they seek justice for Freddie Gray, whose spine was snapped in the back of a police van, leading to his death. And Mr. Porter has the integrity of his work as a police officer and the colleagues who support him to defend.
On that last point, one might say let him testify if he's so certain he did nothing wrong; what has he got to hide? But nothing about these cases is as simple as it appears, and this is a question that's bigger than these particular officers. Whether Judge Williams' ruling was correct or not, we are in no position to say. But the question cuts to the very heart of our justice system's promise of a fair trial and must be addressed immediately, rather than left to be argued later.