Court: Porter must testify

Appeals decision could have wide implications for other prosecutions

The pair of rulings by the Court of Appeals on Tuesday set the cases against six police officers charged in the arrest and death of Freddie Gray back in motion, but the judges left key questions — with potentially far-reaching consequences for other prosecutions — unanswered.

Lawyers are waiting for full opinions from the court to explain exactly why it found that Officer William G. Porter can be compelled to testify against his colleagues.

Attorneys around the state will read those opinions closely, analysts said, in search of any indication that they have enhanced the state’s powers to compel testimony or contest unfavorable rulings in the middle of a case.

Much will depend on how narrowly the court’s rulings are tailored to the specific facts of the Gray cases, which could limit their relevance to prosecutors pursuing defendants in other cases.

The six police officers, who face charges ranging from misconduct in office to second-degree murder, have pleaded not guilty. The appeals focused on whether Porter could be compelled to testify against his fellow officers while he is a defendant himself.

“A lot of people were actually watching the argument,” said Brian

Murphy, a Baltimore defense attorney. “Not only is it fascinating with its twists and turns; it’s also highly relevant.”

The appeals judges ruled that Porter could be compelled to testify but offered no reasoning Tuesday.

Michael Wein, an attorney in Greenbelt who has been following the case, said he expects a fuller ruling to be issued within a few weeks to help guide the lawyers as the six officers head to trial and to make clear whether it will apply to other cases.

“The Court of Appeals is going to have to make a more detailed discussion of the reasons,” he said.

The Fifth Amendment ordinarily prohibits police or prosecutors from forcing a suspect to make an incriminating statement. But the law also recognizes situations in which there is public interest in compelling a witness to reveal key information, even at the risk of implicating themselves in a crime.

Typically, the solution is to offer the witness immunity, which commonly involves prosecutors offering a plea deal or some other resolution of a case in order to secure important testimony.

But in Porter’s case, prosecutors proposed something different.

Porter was the first of the six officers to go to trial. The state’s attorney’s office had hoped that getting a verdict against him first would free him up to serve as a potential witness against the other officers. But Porter’s trial ended in December in a hung jury and the case against him remains open.

So instead of agreeing to resolve his case, the state’s attorney’s office said that when he comes back to court for his retrial, prosecutors will proceed as if they have not heard any of Porter’s testimony in the trials of the other officers.

The basis for that arrangement seems to be clear in Maryland law, but neither Porter’s lawyers nor prosecutors could find an example of it ever having been invoked.

“I think it is opening up a can of worms,” Murphy said. “The traditional thinking, which I think is the fair way to do it, is that either you’re a witness or you’re a defendant.

“If you’re a defendant, you can be made a witness, but the state has to either dismiss your case or work out a deal with you.”

In a brief to the appeals court, Porter’s lawyers warned that forcing him to testify would hand significant new powers to prosecutors in cases in which more than one person might be responsible.

J. Amy Dillard, a law professor at the University of Baltimore, said the appeals court could write the ruling in such a way that limits its impact on other cases, latching onto unusual details about the cases against the officers.

Porter testified voluntarily in his own defense, for example, which is something the court could highlight.

“It seems like an issue that can be resolved very narrowly and on these specific facts,” she said.

Douglas Colbert, a law professor at the University of Maryland, said it’s rare for courts to grant separate trials for six defendants who have been charged together — another fact that could limit the scope of the rulings.

“Anyone who is claiming that this is opening up, or giving the state more power, is taking a one-sided view,” he said.

The appeals court also addressed whether it even had the power to hear the case. The ability of prosecutors to contest rulings against them is strictly limited. In even agreeing to hear the cases, legal analysts said, the judges might make future pretrial disputes more likely.

“This case would open the floodgates and cause the operation of the trial courts to cometoahalt in criminal matters,” attorneys for three of the officers wrote in a brief.

But again, how the Court of Appeals frames its opinion will matter. While the question in the cases against the officers is unusual, Dillard said, there have long been routes for prosecutors to appeal over some issues before a trial begins.

In their filings, prosecutors wrote that they were not asking the courts to do anything new.

“The State has had the ability to appeal a narrow class of final, civil orders like the one here for over thirty years, yet no floodgates have opened,” they wrote.