Please ensure Javascript is enabled for purposes of website accessibility
William Porter, one of six Baltimore police officers charged in connection to the death of Freddie Gray, arrives at Baltimore City Circuit Court last month. (Mark Wilson/Pool Photo via AP)

Porter ordered to testify in Goodson’s trial

Despite his looming retrial for manslaughter, Officer William Porter will testify about the events surrounding the death of Freddie Gray at another officer’s trial set to begin Monday.

With no appellate opinions to use as guidance, Baltimore City Circuit Judge Barry Williams ruled Porter could be compelled to take the witness stand in the case of Officer Caesar Goodson, who is charged with second-degree murder, manslaughter, assault, reckless endangerment and misconduct in office, so long as Porter was granted use and derivative use immunity.

Use and derivative use immunity, which courts have held puts a witness in the same position as using the Fifth Amendment right against self-incrimination, prevents prosecutors from using any of Porter’s testimony against him or deriving any additional evidence from it.

Porter’s defense team plans to appeal the judge’s decision and seek an injunction.

With jury selection scheduled for Monday, it is unclear how quickly the Court of Special Appeals may hear the matter and issue a ruling, according to former prosecutor Warren S. Alperstein.

“If the Court of Special Appeals grants any relief, that can get appealed… and that’s certainly not going to get resolved by Monday,” said Alperstein, of Alperstein & Diener P.A. in Baltimore.

Porter took the stand briefly Wednesday and answered questions posed by Deputy State’s Attorney Michael Schatzow.

“Is it your intention, Mr. Porter, to invoke your Fifth Amendment privilege against testifying when called as a witness in the trial of Officer Goodson?” Schatzow asked.

Porter confirmed he would.

Prosecutors have previously called Porter a “necessary and material witness” against Goodson, the driver of the police transport van in which Gray sustained a fatal spinal cord injury.

Porter testified at his own trial in December that he met the van at one of its stops and helped Goodson check on Gray.

Porter’s case ended in a mistrial, and he is scheduled to be retried in June.

Because Porter announced his intention to refuse to testify at Goodson’s trial based on his federal and state constitutional rights, Schatzow said Maryland law provides that the state can ask a judge to compel his testimony and grant him immunity.

The motion to compel was a victory for the state, according to Alperstein, because Porter must testify or be held in contempt of court.

Issues on retrial

Williams found the statute to be clear and not unconstitutional as applied to Porter but warned prosecutors about the difficult burden they are inviting when it comes time for Porter’s retrial.

Should the retrial proceed, prosecutors would have to prove none of their evidence is based on the immunized testimony, which Williams suggested would be difficult.

“The second he says something, you’ve heard it,” Williams said of Porter’s testimony, calling it “nigh impossible” to prove it did not factor into his subsequent prosecution.

One solution would be forming a separate team of prosecutors prior to Goodson’s trial that would have no knowledge of Porter’s testimony at other trials with immunity. Referred to as a “taint team,” the group would then prosecute Porter, having been insulated from learning any compelled testimony.

“Without a taint team, I don’t know how you’re going to do it,” Williams told prosecutors.

University of Baltimore criminal law professor David Jaros said it would be wise for prosecutors to form a team before Porter testifies in Goodson’s trial so they could make a compelling case.

“It would be easiest to insulate other attorneys from his testimony,” he said.

It is also possible that Porter will deliver nearly identical testimony in both cases and no new information will be revealed, Jaros said. In that scenario, it will be easier for the state to argue it is not using Porter’s compelled testimony against him.

No venue change

Earlier Wednesday, there were few surprises as Williams dispensed with nearly a dozen pretrial motions filed in Goodson’s case. Many of the motions were either identical or nearly identical to those filed Porter’s case.

Officer Caesar Goodson, right, arrives at Baltimore City Circuit Court on Wednesday (Kim Hairston/The Baltimore Sun via AP)

Officer Caesar Goodson, right, arrives at Baltimore City Circuit Court on Wednesday (Kim Hairston/The Baltimore Sun via AP)

Williams again denied a motion to reconsider his decision not to remove the case from Baltimore, citing the fact that it took a mere two days to find 12 citizens who swore to be impartial in Porter’s case.

“There is no need for me to rehash the law [on removal],” he said. “It is the same law.”

Williams also partially granted a defense motion on juror issues, finding it appropriate to keep jurors anonymous but declining to fully sequester them. He took similar measures in Porter’s trial.

Defense attorneys Andrew Jay Graham and Amy Askew of Kramon & Graham P.A. in Baltimore and Matthew B. Fraling III of Harris Jones & Malone LLC in Baltimore also filed a motion to preclude the testimony of assistant medical examiner Carol Allen, who testified at Porter’s trial. Williams denied that as well as a motion to strike an additional state expert.

Williams said all experts will be subject to questioning on their qualifications and potential biases.

Prosecutors also filed several familiar motions, including a request that defense attorneys be precluded from calling them as witnesses and introducing certain evidence about Gray.

Williams granted the portions of the motions that Goodson’s attorneys conceded were not relevant to the case but denied the request to keep out evidence of Gray’s medical history and interactions with police as they may become relevant.

The case is State v. Caesar Goodson, 115141032.