Judge Barry Williams

Judge Barry Williams

There have been several other interesting developments in the motions war. From the Baltimore Sun: 

Prosecutors say Circuit Judge Barry G. Williams overstepped his authority in refusing their request that he force Baltimore Police Officer William G. Porter to testify at the trials of three of his fellow officers in the arrest and death of Freddie Gray, and have asked him to delay those trials pending their appeal of his decision to a higher court.

The prosecutors argue Williams improperly took it upon himself to decide whether it would be in the ‘public interest’ to compel Porter to testify under a limited form of immunity in the trials of Officer Edward M. Nero — set to begin Feb. 22 — and Officer Garrett E. Miller and Lt. Brian W. Rice, scheduled for early March.

Williams had questioned prosecutors’ motives in wanting Porter to testify in those trials, suggesting they were using the request as a way to delay them. He also questioned the relevance of Porter’s testimony in those trials.

But, prosecutors said, Baltimore State’s Attorney Marilyn J. Mosby has the ‘sole power’ to decide whether immunity for Porter would serve the public interest.

Despite Williams’ ‘good intentions in seeking to avoid delay of the Defendant’s trial,’ his decision to deny the request ‘ran contrary’ to the law in Maryland, they said

Prosecutors announced their intent to appeal Williams’ decision to the higher court last week. Their motions asking Williams to stay the trials outline for the first time the arguments they will likely make in their appeal to the higher court.

This is yet another bizarre ploy in a backwards case. Thus far, Judge Williams has been very tolerant of the Prosecution’s ethical lapses, and most of his rulings have been favorable to the Prosecution. Prosecutors rarely do anything to directly challenge a judge, particularly one that is essentially on their side.

Their argument is deceptive at best. Judge Williams did not speak to the “public interest” in his ruling on Porter. Readers will recall, I’m sure, that it was Williams that wanted to compel Porter to testify, though he may have had a few reservations. The ultimate issue is whether Mosby or anyone else in Maryland has the lawful authority to give a defendant that is still in legal jeopardy some form of limited immunity and thereby compel their testimony. The prevailing argument seems to be that the Legislature intended this sort of immunity to apply to witnesses, and never, defendants. The issue is whether this practice violates the constitutional rights of defendants–Porter in this case–not whether it is in some vaguely defined “public interest.”

Readers will also recall that Porter’s legal jeopardy is significant. He awaits retrial on all of his charges in the Maryland Courts, and even if the prosecution kept its word and didn’t use his testimony against him at his upcoming trial, that would not keep federal prosecutors from using it against him if they decide to prosecute him in the federal system. And as I’ve already observed, this kind of situation is rife with the probability of perjury traps. There is no real precedence in Maryland because all prior prosecutors apparently thought this a settled matter: one doesn’t try to compel the testimony of defendants, because it is plainly unconstitutional. But Mosby and her deputies are plainly desperate:

Trying the officers before their pending appeal before the Court of Special Appeals is resolved would ‘needlessly cause irreparable harm’ to their cases against the officers, the prosecutors argued in their new filings.

In requesting last month that Porter be compelled to testify, Chief Deputy State’s Attorney Michael Schatzow said Porter’s testimony would help the state prove reckless endangerment charges against Nero and Miller and manslaughter and assault charges against Rice.

In a statement to investigators, Porter described arriving at the scene as Gray was being put into a police van. Schatzow said Porter’s testimony on the stand about what happened at the scene could help the state show Gray was not secured in a seat belt and establish a timeline for when Gray was injured, helping jurors understand the officers’ culpability.

This too is disingenuous. As I’ve previously written, are we to believe the prosecutors are so incompetent they filed charges against six people without an adequate understanding of what would be necessary to sustain them? Until Porter’s trial ended in a mistrial, their absolute desperation to have Porter testify–without his testimony, they can’t convict anyone–was unknown, or at least, unspoken. Virtually everything they claim to need Porter’s testimony to establish is easily established via statements, transcripts, and the testimony of others. According to ABC News: 

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Two Baltimore police officers charged in the Freddie Gray case are opposing the state’s motion to delay their trials until appellate courts decide whether another officer can be compelled to testify against them.

Lawyers for Lt. Brian Rice and Officer Edward Nero filed the responses Monday in Baltimore Circuit Court.

They call the state’s motion a ‘transparent subterfuge’ to avoid trying them before William Porter’s retrial on related charges in June. Porter’s first trial ended in a hung jury in December.

Back to The Sun:

The prosecutors’ new requests to delay the trials, filed in motions in the Circuit Court in Baltimore, are required before they can ask the Court of Special Appeals — where they have appealed Williams’ decision regarding Porter’s testimony — for an injunction to block the trials from proceeding pending a higher court decision on the Porter issue.

That appeal has not yet been made public, and it was unclear Monday whether it had been filed yet. A court spokeswoman said she had not been notified of any appeal filings as of Monday afternoon.

If the Court of Special Appeals does take up their appeal, the trials could be delayed for months.

And whose fault is that? Does the Prosecution really expect these defendants to simply roll over and fail to do anything to ensure that their rights are upheld?

Already, the trials of two other officers — Officer Caesar R. Goodson Jr. and Sgt. Alicia D. White — are stalled behind a separate appeal filed in the Court of Special Appeals by Porter’s attorneys, challenging a separate decision by Williams to force Porter to testify in those trials.

Prosecutors said early on that Porter was a ‘material witness’ in the Goodson and White trials, and Williams ruled that the limited immunity given to Porter — preventing prosecutors from using his testimony at his own retrial in the case — would protect his rights against self-incrimination.

Unless, of course, the prosecutors weren’t honest and ethical and chose to unethically use Porter’s testimony against him. It’s also possible they hope to use something Porter might say as a means of forcing other officers to testify against their fellow officers. The problem–just one; there are more–with this approach is that it appears to be an obvious consequence of the Prosecution’s rush to file charges without a complete investigation. When that happens, one sees what is happening in this case: prosecutors trying to find potentially hidden information they can use against some defendant, any defendant.

credit: the conservativetreehouse.com

credit: the conservativetreehouse.com

Then there is the political dimension. Marilyn Mosby’s City Councilman husband Nick is currently running for Mayor. It takes little political acumen to understand that Prosecutor Mosby would very much like to have at least some convictions of some of the officers on the record before voting for Councilman Mosby begins. If everything collapses, so too may his mayoral hopes. Mosby obviously thought all of these cases would be smooth sailing, officers falling convicted like dominos in short order, but Porter’s mistrial made a mess of that plan, hence the Prosecution’s desperation, which just got even more frenzied. From The Baltimore Sun: 

The Maryland Attorney General’s Office is asking the state’s highest court to take up competing appeals in the Freddie Gray case, which would freeze all proceedings indefinitely as the next trial date nears.

The agency, representing the Baltimore State’s Attorney’s Office, petitioned the Court of Appeals on Tuesday to bypass the lower-level appeals process and expedite a review regarding questions over whether Baltimore Police Officer William Porter can be compelled to testify against other officers while still facing his own charges.

In two of the officers’ cases, Porter was forced by Circuit Court Judge Barry Williams to testify against his fellow officers and has been seeking to overturn the decision. In the three other cases, prosecutors failed to convince Williams that Porter is a necessary witness, and they are seeking to overturn that decision.

The Attorney General’s Office wrote that all five cases should be reviewed ‘because they provide an appropriate vehicle for this court to consider the application of [the state immunity statute] from all sides.’

At issue is whether the state’s immunity statute can protect Porter’s right against self-incrimination. Attorneys for the state argue Williams applied the immunity statute differently in the two instances now being appealed, and ask that the court resolve the issue ‘before Maryland’s witness immunity scheme fails to function as the legislature intended.

I’m sure the State AG simply decided to pursue this issue without any consultation with or urging by Marilyn Mosby or other Maryland politicians of a social justice bent.

Obviously, Mosby hopes that the high court will take the case and immediately decide it in her favor. Notice that the Prosecution is arguing that the Legislature intended defendants in legal jeopardy, be compelled to surrender their 5th Amendment rights, a bizarre and likely indefensible position. Remember that the Prosecution has all but told the court that without Porter’s forced testimony, they have no case against Officer Nero, Sgt. White and Officer Goodson. Courts generally do not look kindly on such pathetic arguments, expecting that prosecutors that can’t win cases without violating the Constitution, not file them in the first place. Trying to convince a court to be complicit in willfully violating the Constitution is something ethical attorneys normally avoid, but this is the backward case. It would not be outlandish to think the State AG’s office would agree with Mosby for political, rather than legal, reasons.

The biggest problem for the Prosecution might very well be that these officers are innocent. There are no Perry Mason dramatic confessions, or pieces of damning physical or testimonial evidence to be found, because the officers did nothing wrong. It’s just not possible to flip one officer against the others because there is nothing to be uncovered.

As I’ve often written, it’s possible some of these officers are in some way culpable. However, we’ve yet to see any evidence of that, and the Prosecution’s desperation and backwards tactics, as well as the State AG’s inserting itself into the case, suggests they know the officers are innocent, but will do whatever is necessary to convict someone, anyone, of something.

After all, the Prosecution argued that the defendants could receive fair trials in Baltimore, in fact, justice could be served only by keeping the trials in Baltimore. If they manage not a single conviction, who do they blame?