Please ensure Javascript is enabled for purposes of website accessibility
Officer William Porter, right, one of six Baltimore city police officers charged in connection to the death of Freddie Gray, walks into a courthouse during jury deliberations, Dec. 16, 2015, in Baltimore. (AP Photo/Patrick Semansky)

Immunity question in Porter appeal could end up in Supreme Court

Maryland’s highest court faces a case of first impression next week when it will be asked to determine whether Officer William Porter can be compelled to testify against his fellow officers charged in connection with the death of Freddie Gray despite his pending retrial.

But the Court of Appeals may not have the final say.

The court has a history of making decisions in favor of defendants’ rights only to have them overturned by the U.S. Supreme Court.

Whether Porter’s appeal will follow the same path remains unclear.

“It’s all about the way the Court of Appeals drafts their actual holdings in the case,” said Adam Ruther, a former Baltimore city prosecutor.

Documents filed by both the state and the defense have thus far have mentioned both the federal and state constitutions. But in the first brief in the case filed at the Court of Appeals, Joseph Murtha and Gary E. Proctor, representing Porter, argued Wednesday that Article 22 of the Maryland Declaration of Rights provides more protection than the Fifth Amendment of the U.S. Constitution.

“[W]hile immunity cannot cure [Porter’s] Fifth Amendment concerns, it most certainly cannot protect his Maryland rights,” the brief states.

Article 22 provides that “no man ought to be compelled to give evidence against himself in a criminal case,” which the Court of Appeals has generally interpreted in tandem with its Fifth Amendment counterpart in the federal Constitution.

“Maryland’s constitution can grant more grounds [for protection] than the federal constitution,” said to David Jaros, a professor at the University of Baltimore School of Law. “The federal sets the floor.”

The Court of Appeals would be well within its rights to rule purely on state constitutional grounds without reaching the Fifth Amendment question, according to Ruther, an associate with Rosenberg Martin Greenberg LLP in Baltimore.

Maryland recognizes the defendant’s right to waive a jury instruction about drawing inferences from his or her silence and makes post-arrest, pre-Miranda silence inadmissible to impeach the defendant, assurances not offered by the Fifth Amendment.

Other than these and other narrow instances, however, the Court of Appeals has interpreted the state and federal rights identically, according to the brief to the Court of Special Appeals filed by the Maryland Office of the Attorney General.

‘Uncharted territory’

At issue in the Freddie Gray cases is Maryland’s current immunity statute, in effect since 1989, which has never been reviewed by an appellate court, according to the petitions for certiorari filed by the attorney general’s office.

Porter’s case ended in a mistrial in December after a jury failed to reach a consensus on any of the four counts he faced and a retrial was scheduled for June.

Prosecutors had previously informed Baltimore City Circuit Judge Barry Williams that Porter was a necessary witness in the cases against Officer Caesar Goodson and Sgt. Alicia White. At a Jan. 6 hearing, Porter stated he would exercise his right not to incriminate himself if called in those cases due to his own pending retrial, among other concerns.

The state offered Porter use and derivative use immunity, which would prevent prosecutors from using anything Porter testified to deriving any additional evidence from it, but defense attorneys claimed their client’s rights would be irrevocably harmed once Porter testified and there was no way to ensure prosecutors will not use his testimony against him later.

Williams acknowledged that he found himself in “uncharted territory” because of the unique situation but held that the immunity statute was clear and had been satisfied by the state’s offer of immunity.

Porter’s attorneys appealed Williams’ decision in the Court of Special Appeals the following day, at which point a stay was issued.

Prosecutors then subpoenaed Porter in the remaining three cases, but Porter’s attorneys objected again, this time accusing the state of attempting to delay all of the trials.

Williams agreed and denied the state’s motion to compel, which prosecutors then appealed.

The attorney general’s office asked the Court of Appeals to review the appeals in all five cases to determine whether Porter’s rights are sufficiently protected by the grant of immunity and if the trial court judge has discretion to deny a motion to compel even if the requirements of the immunity statute are met.

Supreme restraint

The Supreme Court grants less than one percent of petitions for writs of certiorari, according to Ruther, and where the issue is very fact-specific, the justices may be less likely to weigh in.

“It feels like a very big deal, and it’s obviously a big deal to Officer Porter, but it’s a very unusual circumstance,” he said. “It’s a very novel argument the state is presenting because it’s backed itself into a very unique little corner.”

If the Court of Appeals rules that Porter can be compelled to testify with a grant of immunity, it could have a larger impact on how prosecutors try cases with multiple defendants, Jaros said.

“It is incredibly unusual and does have some far-reaching implications if every time a co-defendant is on trial they can be forced to take the stand against their co-defendants,” he said. “It’s a very big change.”

If there are broader implications in criminal practice, “it would not be outside the realm of possibility that the Supreme Court would take an interest,” according to Jaros.

Ruther said prosecutors in every kind of case involving co-defendants will be interested in the ultimate ruling on the issue.

“If this came down in the state’s favor and stuck as good law, I don’t really see any reason why it wouldn’t become standard practice,” he said.