ANNAPOLIS — Highlighting the uniqueness of the case before them, judges on the Maryland Court of Appeals heard oral arguments Thursday on whether one of the six Baltimore police officers charged in the death of Freddie Gray can be forced to testify against the others before his own retrial.
The court’s seven judges questioned attorneys on both sides about the precedents on which they based arguments as well as the degree of difficulty that would accompany a retrial of Officer William Porter depending on the outcome of the case.
Prosecutors have sought to compel Officer Porter to testify against his fellow officers ahead of his own retrial on manslaughter charges in June, offering him immunity and agreeing not to use his testimony against him later. His attorneys have argued that requiring him to testify would violate his Fifth Amendment right not to incriminate himself.
The trials of the other five officers have been postponed until the state’s highest court rules in the Porter case.
Chief Judge Mary Ellen Barbera asked Officer Porter’s attorney, Gary Proctor, to expound on the problems his client would face were he forced to testify again before his own retrial on manslaughter charges.
Mr. Proctor said the case is being so closely watched that anything Officer Porter said would likely be heard be potential jurors for his retrial. But he also expressed worry about the possibility that Officer Porter could be charged with perjury, noting that immunity would not protect him from additional charges and prosecutors accused him of lying in his first trial, which ended in a hung jury in December.
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“He literally may not be able to testify because it will be a mine field,” Mr. Proctor said, adding that it is “inconceivable” that Officer Porter would be asked exactly the same questions from his first trial and he would provide exactly the same answers.
Assistant Attorney General Carrie Williams argued that Officer Porter is better positioned than the others because he already knows the state’s case against him. If prosecutors were to introduce in his retrial new evidence stemming from his immunized testimony, it would be immediately recognized and could be challenged by his attorneys, she said.
“It is the state’s position that we cannot use immunized testimony to prove that Mr. Porter testified falsely in his first trial,” Ms. Williams said. “We have to prove that he committed perjury from this immunized testimony going forward.”
The criminal cases against the police officers stem from the death of 25-year-old Gray, who died a week after suffering a broken neck while handcuffed in the back of a police van in April. His death sparked protests in Baltimore, and large-scale rioting broke out on the day of his funeral.
Baltimore State’s Attorney Marilyn Mosby on May 1 announced charges against the six officers, who were involved in Gray’s arrest and transport.
Officer Porter was the first to be tried, but a hung jury could not reach a decision in his trial. Prosecutors sought to proceed with the other cases, with Baltimore Circuit Judge Barry Williams initially ruling that Officer Porter must testify against Sgt. Alicia White and Officer Caesar Goodson. All three face assault, reckless endangerment, misconduct in office and manslaughter charges.
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Judge Williams later denied a motion from prosecutors to compel Officer Porter’s testimony against Lt. Brian Rice and Officers Edward Nero and Garrett Miller on the grounds that prosecutors never indicated their intent to call him to the stand in those trials.
Attorneys for Lt. Rice and Officers Nero and Miller argued that Judge Williams was well within his rights to rule that Officer Porter could not be compelled to testify against their clients. Michael Belsky, Lt. Rice’s attorney, argued that prosecutors had been unable to find a single case in which a similar appeal was taken up in the middle of a trial.
Judges questioned whether Judge Williams’ ruling undermined the investigation of Lt. Rice and Officers Nero and Miller.
There is no deadline for Court of Appeals judges to issue a ruling.
• Andrea Noble can be reached at anoble@washingtontimes.com.
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