Mimesis Law
10 August 2020

Trouble Ahead, Trouble Behind: Officer William Porter Compelled to Testify

Mar. 24, 2016 (Mimesis Law) — In a decision that has been called unprecedented, the Maryland Court of Appeals has ordered Baltimore Police Officer William G. Porter to testify at the trials of his fellow officers facing charges in the Freddie Gray case:

Maryland’s highest court ruled in favor of prosecutors in the Freddy Gray cases Tuesday, ordering that Baltimore police Officer William G. Porter can be compelled to testify against his five fellow officers.

The high court’s decision was a victory for prosecutors, who argued that Porter’s Fifth Amendment right against self-incrimination would not be violated by requiring him to testify under a grant of limited immunity.

Porter, who dug in his heels and took the stand during his mistrial last December — and who is awaiting retrial for the same charges — will be compelled to testify in five additional related cases.

It seems that after the mistrial, Porter chose not to become state’s evidence against his fellow officers.  How cynical on his part, especially since the State of Maryland:

  • has called him a “liar” during his trial;
  • is moving forward with a new trial against him; and
  • has granted him limited immunity (more on this below) for his testimony against his fellow officers in a related case.

And what if the State comes away disappointed with his performance on the stand, where he has no control over the questions during direct examination. C’mon, William, you gotta have faith…

In its terse Order, the Maryland Court of Appeals ruled that Porter will have to testify in against the other cops, reversing Circuit Judge Barry G. Williams’ Order that denied the State’s motion to compel Porter to testify against Officers Edward M. Nero, Garrett E. Miller, and Lieutenant Brian W. Rice. The appeals court also denied Porter’s request that he not be forced to take the stand at the trials of Officer Caesar R. Godson Jr. and Sgt. Alicia D. White.

Attorneys on both sides, as well as Williams, agreed that while prosecutors have discretion to grant immunity, it was unprecedented in Maryland for a defendant awaiting trial to be compelled to testify against co-defendants.

Defense attorneys say that could open the door for prosecutors to force co-defendants, even those who had invoked their right to remain silent, to testify at the trials of others. (Emphasis in original.)

Since a detailed ruling from the appellate court[1] has yet to issue, it is likely the judges sided with the State’s argument in its motion, that the officer’s testimony “may be necessary to the public interest.”[2] Taking this a bit further down the trough, any prosecutor worth his salt and armed with this precedent can make the argument that a high profile case “may be necessary to the public interest.”

Crack cocaine conspiracy case that is all over the papers? Necessary to the public interest. Identity theft ring case that is on the evening news? Necessary to the public interest. Co-defendants may be compelled to testify against their alleged confederates, while charges are pending, without the necessity of a cooperation or immunity agreement, as is happening in this case.

Another concern here is that the use immunity bestowed upon Porter is not enough to protect him from further incrimination. As pointed out in a brief filed by amicus curiae in support Circuit Judge Williams:

Use immunity protects against the future use of the witness’ compelled testimony in a criminal prosecution of the witness; use and derivative use immunity prohibit the use of the witness’ testimony to uncover other evidence for use against the witness; and transactional immunity bars any future prosecution of the witness for offenses based on the compelled testimony. In re Criminal Investigation No. 1-162, 307 Md. at 684.

Use immunity alone is not broad enough to defeat the privilege, as the danger remains that the compelled testimony might be used indirectly or derivatively to place the witness in a more incriminated posture than before such testimony. Id. at 684. (Emphasis added.)

Sure, the cat may be “out of the bag,” based on Porter’s prior testimony and statements to the police, as Justice Clayton Greene Jr. suggested during oral argument.  But defendants have taken the Fifth Amendment even after they have spoken to police, after retaining counsel, or after testifying under oath in another proceeding. This is because there is always the potential of making things worse: another slip up, another discrepancy between statements.  There is always room in the indictment for additional counts of perjury or obstruction of justice.

Nothing indicates that Porter has reached any kind of agreement with the federal government that would preclude a subsequent charge of perjury or obstruction filed by the U.S. Attorney’s Office. With regards to the federales, he may become the proverbial “sitting duck” after going through his testimony in the five cases.  Who’s to say the feds are not in the bullpen, waiting to pounce should the State fail to get a conviction.  It has happened before.  Hell, Attorney General Loretta Lynch has already launched a civil rights investigation in Freddie Gray’s case.

One thing is for sure though. Absent a reversal or stay issued by the Supreme Court of the United States, Porter gets to walk the plank five more times while awaiting trial, courtesy of Maryland’s highest court.  What are the chances he’ll land safely?

[1] According to the Baltimore Sun, a more detailed ruling is expected to be issues in the coming weeks.

[2] Citing Maryland’s Section 9-123 of the Courts and Judicial Proceedings Article.

5 Comments on this post.

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  • JoAnne Musick
    24 March 2016 at 2:10 pm - Reply

    Love the analysis. Very dangerous precedent with and extremely slippery slope!

  • John
    24 March 2016 at 5:08 pm - Reply

    Testify, and the feds will use it against you. Don’t testify and you’ll be held
    Given the no win situation for Williams, why should he obey the order to testify? What’s the direct contempt law in MD?

  • Mario Machado
    24 March 2016 at 9:01 pm - Reply

    Thanks JoAnne. And I second you on the slippery slope concern.

  • Mario Machado
    24 March 2016 at 9:10 pm - Reply

    There lies the beauty of dual sovereignty. It’s not certain that he will be charged by the U.S. if he testifies and provides incosistent and/or false statements, but it is a real possibility. If he doesn’t comply with the court’s order to testify, he may be held in contempt in state court. I didn’t look up the contempt statute and the pertinent sentencing guideline, but I wouldn’t be surprised if a conviction for perjury exposes him to some jail time.

  • Mario Machado
    24 March 2016 at 9:12 pm - Reply

    My second comment was a reply to John