Attorneys for Officer William Porter, whose trial last month on charges stemming from the death of Freddie Gray ended in a mistrial, have argued in court filings that their client cannot be compelled to testify in upcoming trials where he is subpoenaed without violating his constitutional rights.
Prosecutors have called Porter a “necessary and material witness” in the cases against Officer Caesar Goodson and Sgt. Alicia White, whose trials are set to begin Jan. 11 and Jan. 25, respectively, according to the motion, and subpoenaed him last month.
But Joseph Murtha and Gary E. Proctor argue Porter still faces a retrial, scheduled for June, as well as the possibility of federal charges in connection with Gray’s death.
“Frankly, calling Porter as a witness in two trials, about the same matters upon which he faces a pending manslaughter trial, wreaks of impropriety,” the motion states.
Pretrial motions in Goodson’s case are scheduled to be heard Wednesday in Baltimore City Circuit Court.
Prosecutors’ decision to try Porter first was based, at least in part, on the desire to have him testify at future trials. Some experts called the mistrial in Porter’s case the state’s worst-case scenario because he maintains all of his rights pending retrial.
At Wednesday’s hearing in Goodson’s case, Porter will assert his rights to decline to testify, according to the motion, and it is expected that prosecutors will offer him immunity from prosecution based on his testimony at Goodson’s and White’s trials.
Prosecutors accused Porter of perjury at several points during his trial, according to the motion, but now seek to call him as a “material witness” during other proceedings. Because immunity does not protect from a perjury charge, any inconsistent statement made by Porter on the stand at other trials could be used to charge him with lying under oath.
“The State either has to retract their previous theory, and admit that Officer Porter was truthful, or the State has to recognize that the grant of immunity would be a farce — that is, the State’s grant of immunity would be coaxing Officer Porter into committing what the State believes is perjury and an obstruction of justice, both of which are crimes that fall outside the scope of immunity granted in the immunity statute,” according to the motion.
The case is State v. Caesar Goodson, 115141032.