Mimesis Law
22 January 2020

Freddie Gray Prosecutors To William Porter: “Just Trust Us”

Feb. 2, 2016 (Mimesis Law) — The State of Maryland tried Baltimore police officer William Porter in December for the death of Freddie Gray. The jury was unable to reach a verdict. As one can imagine, Porter probably feels like he is at odds with the prosecutors. Something about accusing a man of manslaughter, assault, reckless endangerment, and misconduct in office breeds a lack of trust. Add in repeatedly calling him a liar in open court, and Porter may get the feeling these prosecutors are not his friends.

But the prosecutors want to be friends with Porter. They want to put aside those petty differences that accusing a man of killing another man can cause and move on. And they aren’t going to let some silly little amendment to the Constitution get in the way.

Porter, understandably, is not willing to testify against the other officers in the Gray case. Six officers are charged. The State of Maryland insisted on trying Porter first, because they wanted him as a material witness against two other officers. That’s a pretty arrogant position, since it appears the State never considered there would be some other result besides a conviction. But that’s exactly what happened. He was not convicted. Instead, the jury couldn’t reach a verdict and a mistrial was declared.

After the hung jury, the State asked a judge to order Porter to testify in the next trials. Who cares, right? Wrong. Everyone should care. The Fifth Amendment to the United States Constitution, among other things, says:

No person … shall be compelled in any criminal case to be a witness against himself…

Most people don’t think too much about the right to be free from self-incrimination. Only criminals need to worry about incriminating themselves, right? Wrong again. Porter’s case shows people exactly why this right is so important.

Porter was accused of contributing to the death of Freddie Gray. He denied responsibility by pleading not guilty and demanding a jury trial. Porter took the stand and testified in his own defense. It should come as no surprise the State didn’t believe what he said, and they made sure everyone knew it.

Porter’s lawyers have filed a brief in the Court of Special Appeals of Maryland citing numerous examples of the prosecutors calling Porter a liar and claiming his testimony was false. In other words, accusing him of perjury, in addition to the other accusations already pending against him.

But these Maryland prosecutors are willing to forgive and forget, they claim, if Porter will testify for them in the next couple of trials. Because whether someone is a liar or not just depends on whether they will testify for the government. And the prosecutors in Porter’s case would be happy to move him from liar to best buddy if he will just play ball with them.

The prosecutors are even willing to offer “use immunity,” which means they can’t use his testimony against him. So there must be no danger at all if Porter testifies. As an aside, if you believe that, there is some fine ocean-front property in Arizona you should check out.

Porter’s attorneys, Gary Proctor and Joseph Murtha, are experienced defense lawyers and haven’t seemed too impressed with the State’s attempted seduction of their client. They viewed the government’s representations with suspicion. The accusations of lying and perjury were enough to warrant some caution. But they also noticed federal prosecutors in the courtroom and were told by witnesses the FBI was lurking around.

At this point, the lawyers went back to court, assuming the Fifth Amendment was pretty clear and what judge doesn’t know that? Apparently Judge Barry Williams, who ordered Porter to testify, despite spelling out the troubling implications of his own ruling.

“I find myself in uncharted territory,” Williams said before declaring that Porter can be compelled to testify.

The judge warned prosecutors that if Porter does take the stand against others it would be “nigh impossible” to prove his testimony would not have an impact on his retrial and said that was a burden they would face.

The judge found himself in uncharted territory, yet decided not to worry about the defendant’s constitutional rights. Judge Williams wanted to make sure the prosecutors don’t have to face too many challenges to getting their convictions. Start making it hard and next thing you know there will be acquittals everywhere.

Porter’s lawyers have legitimate concerns about the ruling. When lawyers see feds lurking around their case, they get nervous. It’s one thing to have the State of Maryland coming after a defendant. It’s an entirely different problem when the United States and all of its agents and prosecutors point the finger at a citizen.

The federal government won’t be bound by state immunity. It also won’t be hamstringed by any state court results. The feds can charge Porter and base those charges on the exact same facts used in the state court proceedings, regardless of the outcome of his state trial.

The more immediate concern is that the immunity won’t protect Porter from perjury charges. The State has already accused him of committing perjury. Apparently they will forgive the alleged perjury if he joins their team, but that would be a risky move. If he doesn’t make the prosecutors happy, it’s a foregone conclusion they are going to punish him. And what will make them happy is a conviction. They have already failed to get a conviction against Porter. There isn’t much incentive for him to get on board with the State.

Those same prosecutors promise they won’t turn on their new friend Porter if he just takes his immunity and does what they ask. He and his lawyers are not so trusting, according to the conclusion of the brief they filed last week in the appellate court:

For almost a quarter millennium the legislatures of Maryland have enunciated laws. The courts of Maryland have interpreted them. And, in all that time, there is not an analogous situation in which this Court can call upon to guide it. That in and of itself speaks volumes to the length the state seeks to go to bend Officer Porter’s rights, so that their case against Goodson and White does not break.

The statute the state seeks to rely on was not remotely meant to cover a situation like the one at bar. It was designed for witnesses. Officer Porter has a pending homicide trial, and yet the state seeks to have him testify to those very same events in their thirst to convict others. It is indubitably correct that this will give the state a leg up in their later quest to convict Appellant…

The State has already made it clear that whether Porter is a lying criminal or a cooperative witness all depends on whose side he ends up on. If he will just trust them, everybody wins. Luckily Porter’s lawyers aren’t falling for it:

There are witnesses, and there are defendants with pending homicide trials. It is time to tell the State that never shall the twain meet.

Hopefully the Maryland Court of Special Appeals has a firmer grasp on the importance of the Fifth Amendment than the prosecutors and the trial court.

2 Comments on this post.

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  • Gregg
    2 February 2016 at 11:06 pm - Reply

    “The feds can charge Porter and base those charges on the exact same facts used in the state court proceedings, regardless of the outcome of his state trial.”

    Not to ask too basic of a question, but would double jeopardy apply? Can the feds try somebody who has already been tried by a state?

    • shg
      3 February 2016 at 5:36 am - Reply

      “Dual sovereignty” means that double jeopardy does not apply. It should, but it doesn’t.