William Porter: Credible Witness or Liar? Depends.
Dec. 22, 2015 (Mimesis Law) — William Porter was prosecuted for the death of Freddie Gray in Baltimore. Last week, the jury couldn’t reach a verdict and the judge declared a mistrial. Twelve jurors must unanimously find Porter guilty of contributing to Gray’s death beyond a reasonable doubt. It’s harder than it sounds and the first jury couldn’t do it. That result creates a dilemma for the prosecution: is William Porter a liar or a star witness? Depends on which side he picks in the coming weeks.
Six members of the Baltimore Police Department are accused of causing Gray’s death during his transport to jail after he was arrested. The decision to try Porter first was strategic. Baltimore prosecutors tried him before the others because they needed his testimony against other officers charged in Gray’s death.
In pre-trial motions, prosecutors said they wanted to start with Porter, charged with involuntary manslaughter, second-degree assault, reckless endangerment and misconduct in office, in part because they consider him a material witness against Goodson, the driver of the van, and Sgt. Alicia D. White, a supervisor on the day Gray was injured.
The title of an article in the Baltimore Sun says it all: “Prosecutors see Officer Porter as both a liar and a potential witness.” Liar. Potential witness. The two should be mutually exclusive. Who on Earth would want to put a witness on the stand if they thought the witness was a liar?
It’s not clear whether Baltimore prosecutors are actually going to get the opportunity to call Officer Porter in the trials of other Baltimore police officers. His recent mistrial makes that significantly more difficult, especially with the next officer’s trial slated to start in just a few weeks.
Officer Porter can’t be forced to testify at his fellow officers’ trials. He has a Fifth Amendment right to remain silent. This is a simple right. If asked a question about something that could get you in legal trouble, you don’t have to answer.
Right now, there is little chance Porter would testify at the trials of the other officers. With charges still pending against him, there is little incentive to cooperate with the government. The prosecutors have pushed for speedy trials. Now they may not have time to try Porter again without delaying the other five trials.
Prosecutors probably assumed they would convict Porter, since they usually win convictions in criminal trials. At that point, they would then be able to offer him the standard deal: testify for the government in exchange for a lighter sentence.
Would it matter that the prosecutors have already branded Porter a liar? Probably not. It happens all the time. In this specific case, it’s unclear how it would work out.
Porter testified in his own defense. Since he denied being responsible for Freddie Gray’s death, the prosecutors branded him a liar. Porter testified he didn’t know Gray was in danger of dying and never intended for him to die.
With one of his attorneys at times demonstrating Gray’s position, Porter testified that he never believed Gray needed immediate medical attention until the sixth and final stop.
“Are you sorry Freddie Gray died?” one of his lawyers asked.
“Absolutely,” said Porter, who had testified that he knew Gray from the West Baltimore neighborhood he patrolled.
“Freddie Gray and I weren’t friends, but we had a mutual respect,” Porter said.
He added, “Any kind of loss of life, I’m sorry to see that.”
Earlier, Porter testified that he did not call for a medic before that final stop because Gray had not exhibited signs of a medical emergency.
“I didn’t see anything externally, cuts or wounds,” Porter said.
Asked whether Gray said he couldn’t breathe, Porter replied: “Absolutely not.”
This story is deeply at odds with the prosecution theory, who claimed Gray “was criminally negligent” in failing to seek medical attention to Gray. This would make him responsible for Gray’s death, at least according to the prosecution. When the prosecution is against Porter, his credibility is a joke:
“Who had the motive to be deceitful?” she asked. “It’s not Detective Teel. It’s Officer Porter.”
Porter had argued that he didn’t know Gray was seriously injured. Bledsoe said evidence proved that “Porter knew that Freddie was hurt badly.”
Schatzow, in his closing, was more blunt.
“Every place that he is stuck” contradicting his statement to investigators, Schatzow argued, “he now comes up with some new explanation.”
One would think these statements alone make it pretty farfetched to turn around and use Porter as a witness in another criminal trial. But that is one of the issues for prosecutors as they consider a second trial for Porter.
In the coming days, Baltimore prosecutors face a number of critical strategic decisions — including the possibility of offering a plea deal to Porter — as they seek to use him as a witness in cases against five other officers.
Despite clearly taking the position Porter was lying at his trial, the prosecutors now want to use him in support of their cases against the other officers. This change in the prosecutors’ attitudes will come about if Porter changes sides. If he decided to cut a deal and testify for the prosecutors, he becomes a star witness. And a far cry from the liar he was when he was defending himself against those same prosecutors.
This is a dangerous position for a prosecutor to take, especially in a case like this. It is not at all clear whether he committed any crime. The case against these officers has more to do with what they didn’t do, then what they actually did do, which may have contributed to the jury’s inability to reach a unanimous verdict.
While the Porter case is unusual because he is a police officer accused in a death, it also included factors — ambiguous evidence and complex legal questions — that can leave jurors in disagreement, according to the National Center for State Courts.
The case against Porter centered on his alleged failure to take action, an unusual focal point in a criminal case. Prosecutors said he did not follow Police Department rules on placing seat belts on those arrested and seeking medical care if requested. Defense attorneys argued that Porter did not know how badly Gray was hurt and that he acted as other officers would reasonably have done. They also challenged crucial medical evidence.
In such a close case, the fact the prosecutors would be willing to make Porter one of their witnesses should cause concern, if they really believe he is a liar. Or if they don’t really think he is a liar, their actions during his trial should cause concern.
Either way, the prosecutor’s position is troubling. A liar or a potential witness. Porter should be considered one or the other. Not both.