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Photo Illustration by Maximilian Franz (The Daily Record)

Experts: Mistrial in Porter case leaves questions for prosecutors

Of all the possible outcomes for the first trial in the case against six officers charged in connection with the death of Freddie Gray, legal observers said Wednesday’s mistrial was the state’s worst scenario.

Officer William Porter has been identified as a witness prosecutors would like to call against at least two other officers, including Officer Caesar Goodson, who faces the most serious charges and is scheduled to go on trial in less than three weeks.

With no verdict, however, Porter retains all of his Fifth Amendment rights against self-incrimination and can’t be compelled to testify without immunity.

“The state cannot compel Officer Porter to testify against Officer Goodson so long as Porter remains a defendant with his own trial pending,” said Baltimore defense attorney Warren S. Alperstein.

Porter testified in his own trial that he told Goodson, the driver of the police van that transported Gray on April 12, that Gray had requested medical attention. Porter also said he recommended Goodson take Gray to the hospital immediately so that he could be medically cleared and accepted to Central Booking.

If Porter does not testify at Goodson’s trial, it’s unclear how prosecutors Janice Bledsoe and Michael Schatzow could introduce evidence that Goodson was aware Gray asked for a medic, according to Alperstein, of Alperstein & Diener P.A.

“You certainly need Porter to testify and prove that Freddie Gray asked for a medic,” he said.

Assuming the state views Porter as a key witness, the only option for prosecutors is to ask that other trials be postponed so Porter can be retried immediately or drop charges against Porter and offer immunity, according to Ty Kelly, a former federal prosecutor.

A scheduling conference between Porter’s attorneys, the state and Baltimore City Circuit Judge Barry Williams was held in chambers Thursday morning, but no new trial date has been announced.

It would be disappointing for attorneys for the remaining five officers to be forced to reschedule their trials, Kelly said, in part because of the efforts it took to schedule the initial trial dates.

All six trials were announced at a hearing in September.

“The state got to choose the order and got it,” said Kelly, of Biran Kelly LLC in Baltimore.

Strategy adjustments

For better or for worse, attorneys on both sides of Porter’s case have seen the other’s evidence and strategy.

“Everybody lost the element of surprise,” Kelly said of a possible retrial.

It’s frustrating for the attorneys, Kelly continued, because the process of a trial is draining both physically and emotionally, and they most likely don’t want to repeat the experience.

“The state’s never happy with a hung jury,” added Baltimore defense attorney Gary S. Bernstein, a former city prosecutor. “You never want to retry a case.”

A hung jury on all counts indicates at least some jurors agreed with each side, Bernstein said, so trial strategy is unlikely to change dramatically for the attorneys.

“You know your case was good enough to convince somebody,” he said.

Alperstein, who observed the majority of Porter’s trial, said he could not think of any weak areas for either side which could be improved on retrial.

“The state definitely put on its best case possible because the state wanted to do everything it could to convict Porter so it could use him as a witness,” he said.

The state’s case was primarily professionals, not bystanders and eyewitnesses, so similar testimony would be expected.

On retrial, prosecutors will also have two sets of statements to use to attempt to impeach Porter, should he testify again, Alperstein said.

Kelly said it is unlikely either side will drastically alter their case, though defense attorneys will have the chance to investigate any information that they learned during the first trial.

Though evidence could come out a little differently, a new trial would be “a clean slate with a transcript of the first slate,” she said.