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Porter seeks injunction in appellate court to avoid testifying

Two other officers given new trial dates

William Porter, right, one of six Baltimore city police officers charged in connection to the death of Freddie Gray, walks into a courthouse for jury selection in his trial, Nov. 30, 2015, in Baltimore. Porter faces charges of manslaughter, assault, reckless endangerment and misconduct in office. (Rob Carr/Pool Photo via AP)

William Porter, right, one of six Baltimore city police officers charged in connection to the death of Freddie Gray, walks into a courthouse for jury selection in his trial, Nov. 30, 2015, in Baltimore. Porter faces charges of manslaughter, assault, reckless endangerment and misconduct in office. (Rob Carr/Pool Photo via AP)

Attorneys for Officer William Porter filed a motion for an injunction in the Court of Special Appeals on Thursday morning, less than 24 hours after a judge signed an order compelling Porter to testify at a fellow officer’s trial.

Jury selection for Officer Caesar Goodson’s trial in connection with the death of Freddie Gray is scheduled to begin Monday, and Porter has been given immunity for his testimony in the case. He is expected to be called Jan. 14 or 15, during the first week of trial, according to the motion.

The motion seeks a stay of Baltimore City Circuit Judge Barry Williams’ order under the collateral order doctrine, which permits an appeal of certain types of orders immediately before final judgment in a case. The motion argues Williams’ decision meets the requirements and can be reviewed by the appellate court.

The state will submit its response to the defense motion Friday, according to David Nitkin, spokesman for Attorney General Brian E. Frosh.

Porter’s attorneys, Joseph Murtha and Gary E. Proctor, made arguments in their appellate court filing similar to ones they made during Wednesday’s hearing before Williams on the motion to quash the officer’s subpoena.

Even with immunity, the motion states, Porter’s constitutional rights are violated by compelling him to testify and could have a disastrous impact on his right to a fair trial at his retrial in June.

“The actions of the state and circuit court are without precedent in Maryland law,” the motion states. “This court needs to provide guidance. The bell cannot be unrung, and Porter will be unable to challenge it later.”

‘Why me?’

Williams acknowledged Wednesday that he was in uncharted territory, with no appellate law on point to guide him on the matter.

“Somebody’s got to be first,” Deputy State’s Attorney Michael Schatzow told Williams.

“Why does it got to be me?” Williams responded.

The judge ultimately determined that the requirements of the immunity statute were met and not unconstitutional as applied to Porter, as his defense attorneys contended.

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, which ended in a mistrial, that he met the van at one of its stops and helped Goodson check on Gray.

Williams’ order provides that Porter must testify at Goodson’s trial and further orders that no testimony or information directly or indirectly derived from his testimony be used against him, also known as use and derivative use immunity. Porter’s compelled testimony may only be used against him in a prosecution for perjury or obstruction of justice.

Courts have held that use and derivative use immunity puts the witness in the same position as their Fifth Amendment right against self-incrimination. If Porter refuses to testify, he can be held in contempt of court.

Murtha and Proctor argued Wednesday, and Williams agreed, it will be difficult for prosecutors to prove Porter’s immunized testimony is not affecting their second prosecution of him in June.

“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.

New trial dates

Also, Thursday, the Judiciary announced new trial dates for two of the remaining officers. Sgt. Alicia White, previously set to go to trial in late January, now has a Feb. 8 start date; Officer Garrett Miller, previously scheduled for Feb. 9, had his trial moved to March 7.

Prosecutors have said they intend to call Porter as a witness in White’s trial, which will likely require the same motion to compel as the Goodson case.

The appellate case is State v. Officer Caesar Goodson, 2308/15.


2 comments

  1. gpinder@towson.edu

    Am I missing something at the beginning of this story? Who is Williams? Is that the judge? First name?

  2. nsforster@gmail.com

    Judge Barry Williams.