A ruling last week by Judge Barry Williams further illustrates the bizarre nature of the Freddie Gray case. From WBALTV:
During a hearing Wednesday, Baltimore City Circuit Court Judge Barry Williams denied the state’s motion for Officer William Porter to testify in trials of Officers Edward Nero, Garrett Miller and Lt. Brian Rice, three of six officers charged in the police in-custody death of Freddie Gray.
Prosecutors said that Porter’s testimony is crucial to their case. In both statements to investigators and during his trial, Porter said that he told White and Goodson that Gray asked for a medic. Williams said the state should have decided to include Porter’s testimony when initially filing with court this past June.
Nero’s trial is expected to go on as scheduled on Feb. 22. However, his defense has a scheduling issue to discuss with the judge. Miller’s trial is scheduled to start on March 7, and Rice’s trial is scheduled to start March 9. [skip]
Williams put Sgt. Alicia White’s trial, set to begin Feb. 8, on hold Wednesday. Officer Caesar Goodson’s trial was also put on hold until the Court of Special Appeals settles the issue of Porter’s testimony in those cases.
While there have been signs that Williams is very much on the side of the prosecution and social justice forces in this case, this decision probably does not indicate a change in focus. Williams had no choice. Even Williams could see the prosecution’s true intentions:
Williams asked if the state was setting up Porter to perjure himself if asked to testify about the seat belt issue.
‘I don’t see how we’re setting him up,’ Schatzow said.
Williams said the ‘problematic’ issue would come up when giving testimony, whereas the state would grant immunity, Porter could potentially perjure himself when responding during the defense’s cross-examination.
We are to believe that an experienced and seasoned prosecutor has no idea how easily any prosecutor can construct a perjury trap in circumstances like this? Schatzow is either a liar or an incompetent, perhaps both. But that’s not the end of his deception or incompetence:
Williams reprimanded the state for failing to initially realize the possibility of a mistrial in Porter’s case, saying that ‘it sounds strange to the court,’ when Schatzow said it wasn’t something the state considered.
‘You didn’t know that mistrial was a possibility?’ Williams asked Schatzow.
Williams apologized for his outburst. Schatzow backtracked, saying while he knew there was a possibility of a mistrial, they didn’t assume it would be the case.
‘We tried to learn something in trying Porter,’ Schatzow said. ‘But we are where we are.
“Where we are” is entirely the fault of the prosecution. Officer Porter’s attorneys fired back:
In the defendants’ rights to a speedy trial, the state said it has only been roughly eight months since the initial filing.
Murtha argued that prosecutors sought a postponement to take Porter hostage for five cases and torture him at his own trial. He said the state ridiculed Porter when he testified during his own trial and that is contradictory to their claims that his testimony is now vital to the other trials.
Murtha refuted the state using Porter as a witness in other trials that Gray was not seat belted during the second stop, saying Porter’s back was turned from the police van and facing a crowd, whom he was engaging. ‘How can he be a witness?’ Murtha asked.
Porter was never before recognized as a material witness, Murtha said. He said that the state was exploiting its privilege.
This is interesting:
Miller’s defense attorney also objected to Porter as a witness, saying Miller gave his statement about the second stop, saying Miller was filling out a tow tag during the stop.
Nero’s defense attorney also objected to Porter as a witness and asked the judge for a speedy trial.
Rice’s defense attorney said the father of four has been without income and trying to get his right to a speedy trial.”
In the question to the video from the second stop, the state said it showed Porter could testify that Gray was not seat belted, Murtha said.
Responding for the state, Schatzow spoke on the immunity deal for Porter, focused on where the injury occurred and the speedy trial issue, saying to Williams, “(We know) your patience in not unlimited.”
Williams responded jokingly, “Certainly, it is.
Realizing the state has broad power to seek immunity, Williams said that while the matter surrounding Porter’s testimony in Goodson’s and White’s trials will be up to Court of Special Appeals, it was not as simple as a determination in Nero, Miller and Rice’s trials in regards to the seat belt issue.
Williams said immunity for Porter was conditionally tied to postponement of the other trials. Williams found the issue of Porter testifying in the other trials as ‘problematic,’ which could possibly mislead the jury, and a postponement would cause an undue delay for the defendant’s rights to a fair and speedy trial. Williams denied the state’s motion to compel Porter to testify in the other trials.
It is now likely that the Court of Special Appeals won’t make a ruling until some time in March. If the Prosecution is being honest and they simply cannot proceed against the other officers without Officer Porter’s compelled testimony, none of these cases can go to trial before the Court of Special appeals rules. This assumes, of course, that the appeals court rules in favor of the prosecution, which seems, for the moment, unlikely. If Porter cannot be compelled to testify, what then? Do all of the cases fall apart, except the retrial of Porter, or does the prosecution go ahead with the cases as scheduled?
As I noted at the beginning of this article, this case becomes more and more bizarre. The most recent hearing is a case in point. In order to secure a conviction, prosecutors must be able to prove each and every element of every offense charged beyond a reasonable doubt. Before so much as filing a charge, they must be certain they have sufficient credible witnesses and evidence to prove each and every element. This isn’t merely good practice, it is the foundation of the criminal justice system. Prosecutors must, as they did in this case, file a list of witnesses long before trial so that the Defense can be fully aware of the prosecution’s evidence, and so that the defendant may be able to fully confront all witnesses. This, of course, is a requirement of the Constitution.
Courts rightfully frown on any prosecutor springing surprise witnesses at the last minute, and rarely, if ever, allow it because it tends to deny fundamental rights to the defendant. After all, if a prosecutor didn’t know which witnesses were necessary to prove each and every element of every offense before charges were filed, they should not have filed charges in the first place. Doing things like rushing to file charges before an investigation is complete to try to mollify a mob tends to cause this sort of problem.
Courts are also rightfully death on prosecutors that file charges knowing they don’t have sufficient evidence to prove their case, in the hope they’ll somehow be able to scrape it together before or during trial. Such practices are violations of the Constitution and gross abuses of prosecutorial power.
Prosecutor Michael Schatzow’s suggestion that he has no idea about a perjury trap is as pathetic and outrageous as the suggestion that he didn’t bother to take a mistrial into consideration. We are now to believe:
(1) Schatzow, Bledsoe, Mosby, etc. filed charges without any idea which witnesses would be required to prove every element of every offense beyond a reasonable doubt.
That’s believable. In fact, that’s a virtual certainty. This has been a hasty, political prosecution from the start. Remember that Mosby actually charged several innocent people that had the same names as the officers, and had to re-file and change her initial charges.
(2) The prosecution filed charges knowing they didn’t have sufficient witnesses and evidence to prove every element of every charge beyond a reasonable doubt.
That’s also entirely believable and a virtual certainty. It’s also arguably grounds for sanctions, perhaps even disbarment of the prosecutors. If this is true, they charged people they knew to be innocent. The power to prosecute is the power to destroy, and the process is the punishment.
(3) The prosecution is acting in good faith and has no intention of catching Officer Porter in a perjury trap.
That’s entirely unbelievable. To buy that, we’d have to accept the prosecution’s prior bad will and incompetence, which led to a last minute realization that without Officer’s Porter’s unwillingly compelled testimony, they couldn’t possibly convict anyone of anything. Their bad will and incompetence are easily acceptable, but if that’s true, the idea they’d be ethical in primly and carefully eschewing a knowing and spiteful perjury trap is ludicrous.
Everything the prosecution has done in this case indicates that they are not professional, ethical officers of the court. Their demeanor suggests poorly controlled temperaments and resentful, entitled personalities that take professional setbacks personally. Their behavior and statements also suggest they are ideologues, social justice true believers. Such people would do everything they could to construct perjury traps merely to punish Officer Porter for daring to defend himself, and for daring to cost them the embarrassment of a mistrial.
Imagine the rage of Marilyn Mosby and her fellow social justice sycophants as it all fell apart. They expected to glide easily to glorious conviction after conviction. They expected to be carried jubilantly on the shoulders of the mob, lauded as virtual goddesses and gods of social justice, saviors of diversity. And then reality and the law got in their way.
Don’t take my word for it. Consider this from Steven H. Levin, former federal prosecutor and a military judge in the US Army Reserve, writing in The Baltimore Sun:
Although a prosecutor ‘may strike hard blows, he is not at liberty to strike foul ones.’ The Supreme Court first articulated this obligation in 1935. Since then, that court and several lower courts have repeated the admonition to remind prosecutors ‘it is as much [their] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.’
Like many of its sister courts, the Maryland state courts have explicitly ruled that calling a defense witness — which includes a defendant testifying in his own trial — a ‘liar’ is among those improper methods.
And so, I call foul on the state’s repeated references to defendant William Porter, on trial in connection with the death of Freddie Gray, as a liar during its closing argument last month. I am not alone.
In the past, the Maryland Court of Appeals has not hesitated to hold that the state acts improperly when it vouches for or against the credibility of a witness. The reason for the rule is fairly straightforward: The government should not be permitted to suggest to the jury that the prosecutors know more about the case than the jury, and that the jury should therefore simply trust the government’s judgment.
The Fourth Circuit Court of Appeals, which is a federal court with jurisdiction over Maryland courts, has been even more forceful in its criticism of the type of prosecutor’s actions witnessed in the Porter case. That court has ‘recognized that it is highly improper for the government to refer to a defense witness as a liar,’ explaining that the prosecutor should not express his ‘opinion as to the veracity of the witness.’ More to the point, such comments can lead to a wrongful conviction that would undermine the integrity of the criminal justice system.
The integrity of the criminal justice system would not seem to be a concern of the prosecutors in the Freddie Gray case, would it?
Nevertheless, according to a recent court filing, the prosecution repeatedly called Officer Porter a liar in its closing argument. Specifically, a Baltimore deputy state’s attorney told the jury that ‘now that the defendant is on trial, he comes into court and he has lied to you about what happened.’ On another occasion during closing arguments, a prosecutor claimed that ‘the state proved that [Officer Porter] … lied on the witness stand.’ Still a third time, a deputy state’s attorney asserted that ‘what he said at stop two was a lie.’
This is by no means an exhaustive list of what I believe to be the state’s improper arguments, which also include the indecorous claim that one of Officer Porter’s statements was “a bunch of crap.’ It is hard to see how these statements also do not run afoul of the Maryland Lawyers’ Rules of Professional Conduct, which prohibit a lawyer from stating ‘a personal opinion as to the justness of a cause, the credibility of a witness … or the guilt or innocence of an accused.
By all means, take the link and read the rest of Levin’s opinion piece. No doubt the prosecutors are no longer Mr. Levin’s friend–if they ever were.
We are now to believe that a man the prosecutors have repeatedly called a perjurer is now vital to their cases against every other officer, and has magically recovered sufficient credibility to be a convincing witness upon whom they can rely to convict his fellow officers. We are also to believe that the prosecutors have no intention of setting a perjury trap for a man they have publically excoriated as a serial perjurer.
It surprises many people to learn that perjury charges are seldom filed. This is so because perjury occurs only when someone knowingly makes a statement they know to be false, with the intention of misleading the court. In addition, the matter must be material; it must have a relationship to the issues. Differences in recollection, different interpretations of events, simple mistakes of fact or opinion are not perjury. If Officer “A” says, “I remember Freddie Gray wearing a seatbelt at the second stop,” and Officer “B” has no such recollection, that doesn’t mean that either is lying.
However, take an unethical, vengeful prosecutor, and Officer “A,” or Officer “B,” could abruptly be on trial for perjury depending entirely on which observation best fits the prosecution’s social justice narrative. As we have already seen, it takes nothing to file an unsupportable charge. Prosecutors are not liable for the costs of a trial or defense, or for the damage their charges do to the lives and reputations of innocent defendants.
Throughout this case, I have been open to new, previously unrevealed evidence that would tend to demonstrate that the prosecution really does have proof the officers are culpable in Freddie Gray’s death. There is no longer any reason to seek such evidence. It doesn’t exist. The prosecution has proved it beyond any doubt.
This senseless prosecution will destroy public faith in the criminal justice system in Baltimore and around the nation. It will not appease perpetually aggrieved, racist mobs, nor will it protect the political careers of unethical, narcissistic prosecutors and politicians. It will not lower the Baltimore crime rate or encourage capable, honest men and women to become police officers.
It will not imbue the memory of Freddie Gray, a petty criminal, drug dealer and user, with honor, or the dignity he denied himself in life.