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A 'foul' blow in Freddie Gray trial

Although a prosecutor "may strike hard blows, he is not at liberty to strike foul ones." The Supreme Court first articulated this obligation in 1935. Since then, that court and several lower courts have repeated the admonition to remind prosecutors "it is as much [their] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one."

Like many of its sister courts, the Maryland state courts have explicitly ruled that calling a defense witness — which includes a defendant testifying in his own trial — a "liar" is among those improper methods.

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And so, I call foul on the state's repeated references to defendant William Porter, on trial in connection with the death of Freddie Gray, as a liar during its closing argument last month. I am not alone.

In the past, the Maryland Court of Appeals has not hesitated to hold that the state acts improperly when it vouches for or against the credibility of a witness. The reason for the rule is fairly straightforward: The government should not be permitted to suggest to the jury that the prosecutors know more about the case than the jury, and that the jury should therefore simply trust the government's judgment.

The Fourth Circuit Court of Appeals, which is a federal court with jurisdiction over Maryland courts, has been even more forceful in its criticism of the type of prosecutor's actions witnessed in the Porter case. That court has "recognized that it is highly improper for the government to refer to a defense witness as a liar," explaining that the prosecutor should not express his "opinion as to the veracity of the witness." More to the point, such comments can lead to a wrongful conviction that would undermine the integrity of the criminal justice system.

Nevertheless, according to a recent court filing, the prosecution repeatedly called Officer Porter a liar in its closing argument. Specifically, a Baltimore deputy state's attorney told the jury that "now that the defendant is on trial, he comes into court and he has lied to you about what happened." On another occasion during closing arguments, a prosecutor claimed that "the state proved that [Officer Porter] ... lied on the witness stand." Still a third time, a deputy state's attorney asserted that "what he said at stop two was a lie."

This is by no means an exhaustive list of whatI believe to be the state's improper arguments, which also include the indecorous claim that one of Officer Porter's statements was "a bunch of crap." It is hard to see how these statements also do not run afoul of the Maryland Lawyers' Rules of Professional Conduct, which prohibit a lawyer from stating "a personal opinion as to the justness of a cause, the credibility of a witness ... or the guilt or innocence of an accused."

In light of the hung jury in Officer Porter's case, one might ask why these improper arguments matter. There are at least three reasons. First, the public should be concerned any time a government seeks to convict based on improper means; such conduct erodes confidence in our system. Second, the fact that the state felt it needed to argue improperly to the jury suggests it has doubts about the strength of its own case; this should make us question the state's motivation for bringing the case at all, which leads to the third and final point.

After Officer Porter's trial ended, the state sought to compel Officer Porter to testify against Officer Goodson, the driver of the van that transported Freddie Gray, whose trial was scheduled to begin last week. When the circuit court granted the state's request, the defense appealed. The Maryland Court of Special Appeals postponed the trial while it considers the issue. In seeking the order to compel, the state suggested in court filings that Officer Porter's testimony is critical to the state's case. Why does the state want to rely on Officer Porter, someone it has repeatedly called a liar, to convict Officer Goodson?

The hypocrisy of the state's position can only serve to further erode the public's faith in the criminal justice system.

Steven H. Levin is a former federal prosecutor and now a member of Levin & Curlett LLC. He also serves as a military judge in the United States Army Reserve (USAR), though the views expressed here solely represent his own and not those of the USAR. Mr. Levin can be reached at SLevin@LevinCurlett.com.

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