Thursday, March 10, 2016

Baltimore officer must testify in Freddie Gray cases

Too bad about the 5th. Amendment?

The Maryland Court of Appeals ruled Tuesday that prosecutors can compel a Baltimore police officer to testify against five other officers accused in the death of Freddie Gray.

The decision by the state’s highest court hands prosecutors a major victory, since the testimony of Officer William G. Porter is seen as key to securing a conviction against Caesar R. Goodson Jr., the officer facing the most serious charge in Gray’s death, and other officers.

The question of whether Porter would be forced to testify had held up the trials of the officers accused in Gray’s death as the appeals court considered the issue, which had no precedent in Maryland. Porter’s attorneys had argued it would be unfair to force him to take the witness stand when he is facing trial.

It is not yet clear why the court sided with the prosecution, since it did not immediately release an opinion explaining the brief orders released Tuesday. Court officials said it was not yet clear when that opinion will be published.

Legal wrangling over the issue began in the trial court. Baltimore Circuit Court Judge Barry G. Williams ruled in January that Porter would have to testify against Goodson and Alicia D. White — but not against the other three officers: Edward M. Nero, Garrett E. Miller, and Brian W. Rice. The Court of Appeals affirmed the first ruling and overturned the second on Tuesday.

Prosecutors had argued in court they had the authority to compel Porter to testify and had said previously their cases would be "gutted" without the witness. They said Porter’s testimony would not be used against him at his June retrial.

Porter’s attorneys argued that forcing Porter to testify would violate his Fifth Amendment right against self incrimination and damage his ability to receive a fair trial.

Porter’s first trial ended with a hung jury in December.

Porter and the five other officers are facing a range of charges in the death of Gray, who suffered a severe neck injury while riding in the back of a police van last April after his arrest. Gray later died, touching off days of protests and rioting that grabbed national attention.

Porter’s testimony is crucial because he met the van as it made a handful of stops around Baltimore on April 12, and he testified at his own trial that he told Goodson and White that Gray needed medical attention.

Goodson drove the van and is facing a charge of second-degree depraved heart murder.

Because the appeals court has not yet issued an opinion, it is unclear whether Porter’s attorneys have standing to fight the orders in federal court, said Warren S. Alperstein, a Baltimore defense attorney and former prosecutor. Any further appeals would continue to delay the trials for the officers charged.

Alperstein said even if the case moves forward with Porter taking the witness stand, prosecutors will have a difficult challenge ahead of Porter’s retrial.

The state must hold a hearing to prove that none of Porter’s statements directly or indirectly as a witness will be used against him at his own trial.

"It’s very difficult to do," Alperstein said. "If you’ve formulated a cross-examination question, how do you know it didn’t come from what he previously said?"

In federal cases, prosecutors bring in teams of attorneys from other jurisdictions to handle the trial — a "taint team" that is seemingly insulated from a defendant’s previous statements as a witness. They’re people who haven’t been saturated by media reports, read transcripts, or heard the testimony and can "come in with a clear mind," Alperstein said. But that may prove to be a tougher challenge in a local case where agencies have to draw from with a smaller pool of prosecutors.

"Does the state in Porter’s case, if he is ultimately prosecuted, bring prosecutors from a completely different part of the state?" Alperstein asked.

Original report here

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