Marilyn Mosby no longer quite so certain about getting "justice for Freddie Gray."

Marilyn Mosby no longer quite so certain about getting “justice for Freddie Gray.”

This article is pushing aside several others I have prepared, but that’s the nature of reporting on cases of this type; events often overtake intentions. As always, I’ll include appropriate links. If you wish to read all the source articles, by all means, do so. I intend to keep this article as concise as possible.

As readers may know by now, the Prosecution extended a limited grant of immunity to Officer William Porter, which grant was accepted by Judge Barry G. Williams. Porter’s original trial ended in a mistrial on 12-15-15 with a deadlocked jury. He faces a retrial–he is still in legal jeopardy–sometime during the summer of 2016. Grants of immunity in these circumstances are quite rare, in fact, there is no Maryland precedent. From The Baltimore Sun:

Williams said he found himself in ‘uncharted territory’ but felt the law was ‘clear.’ He granted Porter a type of immunity that allows his charges to stand, but which precludes his testimony in the trial of Officer Caesar R. Goodson Jr. from being used against him.

Legal experts — and Williams — said the ruling was unprecedented for a criminal defendant with pending charges.

To date, Judge Williams, despite being a former prosecutor with a social justice bent, has appeared to be reasonably, arguably neutral in his rulings. No longer. In this, he is clearly refusing to extend the protection of the Constitution to Porter and siding with the Prosecution.

Judge Williams

Judge Williams

Williams also warned prosecutors that calling Porter as a witness could have serious implications for their ability to retry him. [skip]

‘The second he testifies, that may change the game,’ Williams said.

After Williams issued the ruling, defense attorney Gary Proctor leapt to his feet and told Williams he intended to appeal to the Court of Special Appeals on Thursday to block prosecutors from calling Porter to testify.

Should Williams’ ruling stand, Porter would not be able to invoke the Fifth Amendment and would have to testify or face the threat of contempt and jail time.

In other words, Judge Williams is forcing Porter to testify and by virtue of the immunity grant, denying him his Fifth Amendment rights. There is a great deal troubling about this. The timing of the decision by the Prosecution is potentially suspect. As always, I’m judging by media accounts, but it appears they waited until the last minute to announce their immunity ploy, putting time pressure on Judge Williams, the Defense, and any court of appeals because jury selection for Officer Goodson’s trial begins on 01-11-16. They knew they were going to retry Porter, and they immediately–after the mistrial was declared–announced he was essential to their case against Goodson. There is no reason they should have delayed announcing the immunity unless they intended to game the system and try to force judges into hasty decisions in their favor.

Also intensely troubling is the fact the Federal Government is currently investigating the Gray case. A grant of immunity of any kind in the Maryland courts is meaningless in a Federal prosecution. Even if the local prosecutors can’t use what Porter says against him in the future, the Feds surely can. This is the most significant 5th Amendment factor involved, and a truly neutral judge should err on the side of the Constitutional rights of the defendant.

In addition–and the Prosecution knows this full well–Porter may say things the Prosecution can use against him in the future, and it will be virtually impossible for anyone to prevent it, no matter how the Prosecution will swear they are not intending to do it, nor are they doing it.  It’s a classic case of a bell that can’t be unrung.

Most disgusting is the possibility of a perjury trap. The Prosecution has already repeatedly called Porter a liar in their closing argument in his first trial, though they neglected to provide any specific evidence of such lying. It would be very easy to use any minor inconsistency or difference of interpretation in Porter’s testimony in each trial to charge him with perjury. The Prosecution also intends to have at least two runs at Porter for perjury as they have repeatedly made clear they intend to force him to testify in the trial of Sgt. Alicia White. Understanding they are unlikely to ever convict Porter, this may be the Prosecution’s stealth intention, and only hope of salvaging something.

Williams said it was a ‘simple decision in one sense’ to determine that preventing Porter’s testimony from being used against him would not violate his rights. Williams said it was ‘very clear’ that compelling his testimony would not conflict with the Maryland or U.S. constitution.

Typically, the right to protect one’s self against self-incrimination outweighs the state’s desire to call someone as a witness against their co-defendants, attorneys and legal observers said.

Not so. In all my years in the criminal justice system, I never saw it happen–nor did anyone suggest it–and I dealt with a very large number of related cases with multiple defendants.

Attorney Adam Ruther said that as a city prosecutor he had explored ways to call defendants, being tried separately for the same crime, to testify at each other’s trials, but said there was no case law to cite as precedent.

Defense attorney Warren Brown said it was ‘almost sacrilegious to make a defendant testify by giving him or her immunity, and that’s why it has never occurred.’

‘No one wants to be in the position of being made by the government to give information that might impact negatively on themselves,’ said Brown, who watched in the courtroom as Williams issued his ruling but is not involved in the case. ‘It might open some doors here that might severely impact the right of people to get a fair trial in multi-defendant cases.

The Prosecution is being as disingenuous as ever:

[Prosecutor Michael] Schatzow argued that no court in the country has ever ruled that an immunity statute was unconstitutional, and that such immunity is as protective as the Fifth Amendment when it comes to a person’s right not to incriminate himself.

‘Officer Porter, in the Officer Goodson case, is a witness,’ Schatzow told Williams in his argument. ‘That’s the only status he has.’

As to there being no precedent on the matter, Schatzow told Williams, ‘Somebody has to be first.

Such a move has not been ruled unconstitutional because ethical courts and attorneys across the country understand such issues must be inherently in the favor of the rights of the accused, and have avoided pushing the issue. In the Goodson case, Porter is indeed a witness, but Schatzow knows well that he is still a defendant in the same continuing case–a case he is prosecuting–and if the Prosecution intends to set a perjury trap, he is being particularly despicable. Even Williams clearly understands his decision opened a particularly ugly can of worms:

Williams put prosecutors ‘on notice’ that they will have ‘an interesting burden’ to prove that they have not been tainted by Porter’s testimony in Goodson’s trial before they are able to try Porter again. Proctor had contended they won’t be able to ‘un-know what they know.

If the past is predictive of the future, the Prosecution will swear it hasn’t been tainted and Williams will lecture a bit and then rule for the Prosecution. Williams continues to deny every motion for a change of venue.

Attorney Paul Mirengoff of Powerline, noted:

Judge Williams has ruled that the prosecution can use testimony from a retired Baltimore police officer and Maryland state trooper about ‘retaliatory prisoner transportation practices.’ According to the Baltimore Sun, this witness is expected to testify about his familiarity with rough rides and about any training officers receive regarding proper prisoner transportation practices, including information about the potential for injury associated with rough rides.

I’m not a criminal lawyer. For what little it’s worth, however, I would have thought that such testimony should be permitted only if the prosecution first presents credible evidence that Gray actually received a rough ride. Absent such a showing, training would seem to be irrelevant and evidence that officers sometimes are abusive both irrelevant and prejudicial.

I agree with Mirengoff. There is apparently no evidence whatever of Goodson intending to give Freddie Gray a “rough ride,” or of giving Gray such a ride. There is also apparently no evidence that Goodson has done any such thing in the past, nor is there apparently any medical evidence that Gray’s injury was inevitably the result of a “rough ride.” On the other hand, there is evidence that Gray enacted “crash for cash” schemes in the past, and that Prosecutor Janice Bledsoe tried to suppress the exculpatory evidence by keeping police investigators from looking into those schemes.

Without such credible evidence, the Prosecution might as well bring in “experts” to testify that space aliens friendly to the defendant could have beamed into the transport van, broken Gray’s neck and beamed out again. That testimony would be no less prejudicial, unreasonable and irrelevant as what the Prosecution surely intends. Courts must deal in evidence, not mere possibilities having no actual connection to a given person or case. Mirengoff concluded:

Looking at the big picture, I wonder whether justice may be getting a rough ride from politically motivated prosecutors and a judge who arguably is making their job easier than it should be.

I have no doubt of it. All of this has caused some changes in the trial dates of the other involved officers. Via another Baltimore Sun Article:

Caesar Goodson credit:

Caesar Goodson

White was scheduled to go to trial Jan. 25, days after the expected conclusion of Goodson’s trial. White’s new trial date is Feb. 8.

The trial of Officer Garrett E. Miller was pushed back to March 7. His trial had been scheduled to begin Feb. 9.

Officer Edward M. Nero’s trial date of Feb. 22 and the March 9 date for Lt. Brian W. Rice remain unchanged.

Expect even more changes as the Prosecution continues to try to make end runs around the Constitution and Judge Williams continues to set himself up for reversal in a bewildering variety of shaky rulings.

As one might expect–and hope–Porter’s attorneys appealed Judge Williams’ decision and were granted a stay by the Maryland Court Of Special Appeals, which, for the time being, prevents Judge Williams’ order for Porter to testify from being carried out. The Washington Post noted: 

What will happen next is uncertain. The appeals court issued only a temporary stay and hasn’t made a final decision. Experts said the legal issue facing the appeals court and the fact that it was coming to a head on the eve of a major trial were virtually unheard of in Maryland — or elsewhere.

The uncertainty confusing The Post has to do only with the final outcome of the motion for injunction. Both parties will present briefs, and there is likely to be a hearing for arguments from the Defense and Prosecution.

Legal experts said the issue of whether Porter should testify is novel in Maryland. Immunity is typically granted in exchange for grand jury testimony or a plea deal but rarely to a defendant the state intends to have stand trial.

Adam Ruther, a defense attorney and former Baltimore prosecutor, said it is hard to know how long it might take a three-judge panel to come to a decision, although he expected that it would work quickly. ‘Issuing a ruling on which there is not a prior precedent does not happen with a flick of a pen,’ Ruther said. ‘This is pretty unusual.’

Ruther said the trial might be delayed or the judge might allow jury selection to go forward Monday if the appeals court thinks it will have enough time to make a decision before opening statements begin.

Final Thoughts:

The Freddie Gray case continues to, more and more, resemble the George Zimmerman case (archive here; the Freddie Gray case archive is here). The Prosecution is clearly politically motivated, and clearly determined to convict the officers regardless of a lack of evidence, rather than see that justice is done; the Constitution and the rule of law be damned. As in the Zimmerman case, the Porter prosecutors have withheld vital exculpatory evidence, and slow-rolled and denied discovery. They have tried to cover up exculpatory evidence. They have made accusations that the defendant is a liar, but just as with the Zimmerman case, presented no evidence of deception.

Just as in the Zimmerman case, Judge Williams has made a variety of very questionable, pro-prosecution decisions, not the least of which is repeatedly denying changes of venue in a case that will one day be cited in legal texts as the best possible model for change of venue. Judge Williams has not quite sunk to the depths of Judge Debra Nelson, but he is rapidly descending to her level of shameless bias.

Before the Porter trial began, I held out hope that the Prosecution would produce previously unknown evidence that might make their charging decisions and public statements at least understandable if not entirely ethical, but no such evidence was forthcoming. Now, they claim that without Officer Porter’s testimony, they have no case against Officer Goodson and Sgt. White. This is, to put it mildly, amazing, but it certainly explains their desperation to violate Porter’s 5th Amendment rights.



To what can Porter testify? We know how many stops were made, we know who was present, why they were present, and we know that Porter discussed eventually taking Gray to the hospital, not because any of them believed at those discussions that Gray was in actual medical distress, but because they believed he was faking and they would have to have a medical sign off before Central Booking would accept him. We know that Goodson and White agreed, but that because there was no actual indication Gray was doing anything other than faking, there was no hurry to get him to the hospital, and we know that the second they realized that Gray was in genuine medical distress, they immediately summoned appropriate help. We know that they did not use a seatbelt on Gray, we know that virtually no BPD officer uses seatbelts on arrestees, and we know why they don’t.

No doubt, they need Porter to establish that Goodson and he discussed taking Gray to the hospital at some point. They probably need Porter in the trial of Sgt. White for the same reason. What Porter cannot establish, for anyone else, is their knowledge of seatbelt policy changes, what they thought, and why they acted or didn’t act.

In this case, the Prosecution appears to be acting entirely for political motives, in other words, in bad will. Bad will is cumulative. Even if the officers are, in any way, guilty, the Prosecution’s methods and obvious bias are telling every police officer in the area that they cannot be trusted, and that they are inherently the racially and politically motivated enemies of all police officers. Their actions have already told black criminals they have little to fear from the police and less from the prosecutors. They are also telling Baltimore’s poorest and most vulnerable populations: “you’re on your own, suckers!”

This is an ugly affair that has probably already irreparably damaged Baltimore. Its effects will be felt far beyond Maryland.