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Officer William Porter, center, one of six Baltimore city police officers charged in connection to the death of Freddie Gray, leaves the Maryland Court of Appeals on Thursday, March 3, 2016, in Annapolis, Md. Maryland Court of Appeals heard the oral arguments in five cases related to the arrest and death of Freddie Gray. (AP Photo/Jose Luis Magana)

Court’s order for Porter to testify could have ‘monumental consequences’

In a precedent-setting decision, Maryland’s highest court ruled Tuesday that a criminal defendant can be compelled to testify against co-defendants so long as they are granted immunity.

The Court of Appeals ordered Officer William Porter to testify against his fellow officers charged in connection with the death of Freddie Gray days after hearing oral arguments in the cases.

In one per curiam order, the court affirmed Baltimore City Circuit Judge Barry Williams’ order requiring Porter’s testimony against Officer Caesar Goodson and Sgt. Alicia White. Porter appealed the order on state and federal constitutional grounds, arguing the state’s immunity statute did not effectively protect his right against self-incrimination.

In a second per curiam order, the court reversed Williams’ denial of a motion to compel Porter to testify against Officers Edward Nero and Garrett Miller as well as Lt. Brian Rice. Williams found the state was attempting to delay proceedings and subvert his scheduling orders, a ruling prosecutors appealed.

The immediate impact of the court’s decisions are that all of the defendants cases have been remanded to circuit court for further proceedings and the stays in each case have been lifted. Rice’s trial, originally scheduled to begin Wednesday, was reset for April 13 during a scheduling conference Tuesday afternoon.

‘Principle, not practicality’

Adam Ruther, a former city prosecutor, said a lot of questions asked by the judges on the Court of Appeals at oral arguments last week indicated they were not bothered by the parade of horribles that were key to Porter and his fellow defendants’ case.

Porter’s attorney, Gary E. Proctor, claimed prosecutors were setting Porter up for a perjury charge because he will be testifying multiple times and is unlikely to describe events in exactly the same way. He also claimed it is impossible for him to get inside prosecutors’ heads to know they absolutely did not use Porter’s immunized testimony in their strategy on his retrial.

“All of Gary Proctor’s arguments were the practicality of actually being able to realize that [immunity] promise,” said Ruther, of Rosenberg Martin Greenberg LLP in Baltimore. “The appellate law doesn’t really work on practicality, it works on principle.”

Though the Court of Appeals has a track record of making rulings in favor of individual defendants’ rights, Ruther said it was “a different ballgame” once the judges began asking questions of the defense teams.

“Normally, the Court of Appeals is more protective of individual rights and a little more defense-friendly,” he said. “I’m kind of amazed by this.”

Protecting defendants’ rights

Prosecutors argued — and Court of Appeals judges pointed out in response to some of the defense arguments — there is already a constitutional mechanism in place to ensure immunized testimony is not used against a defendant at a later trial.

Evaluating the defendant’s right against self-incrimination is done at a hearing designed to ensure the state’s information came from an independent course. The so-called Kastigar hearing, named after a Supreme Court case, is a rarity in Maryland but is designed to ensure prosecutors are not violating an immunity agreement.

Prosecutors typically carry a heavy burden in Kastigar hearings, according to David Jaros, a professor at University of Baltimore School of Law, but for Porter there is already a full record of the state’s case and Porter’s testimony.

“This is maybe the one case where it really is not that damaging to the defendant to be forced to testify given both the requirements of Kastigar and the fact that he does have limited use immunity and everything they will use against him at trial… there’s already a full record of it,” he said.

Should prosecutors attempt to compel co-defendants in future cases to testify against each other, the ruling could have “monumental consequences” according to former city prosecutor Warren S. Alperstein.

“As it stands right now, I believe this will have far-reaching effects on co-defendants who are compelled to testify against each other because now it potentially opens the floodgates for prosecutors throughout the state to call co-defendants who are pending their own trial as witnesses,” said Alperstein, of Alperstein & Diener P.A. in Baltimore.

If prosecutors “get cute with this decision” and apply it more broadly, according to Jaros, it could raise serious concerns about the rights of the defendant.

“I think we just have a big question mark on this case and whether prosecutors are going to try to push what this means,” he said.

Supreme Court appeal?

The defense argued in briefs to the Court of Appeals that Williams’ order compelling Porter’s testimony violated his rights under the state and federal constitutions and claimed Maryland’s Declaration of Rights provided separate protections greater than their Fifth Amendment counterpart.

Though court said it would explain its decision in a forthcoming opinion, the judges will almost certainly address both constitutions in rejecting Porter’s arguments, according to Jaros. If any part of the court’s ruling rests on federal laws and principles, the decision can be appealed to the U.S. Supreme Court.

While the likelihood of the Supreme Court hearing the case is debatable, Porter’s attorneys still may seek review, according to Jaros.

“I don’t know why the defense wouldn’t try to create a complete record that they preserved every claim, and they might offer a petition, but I would be really surprised if it were granted,” he said.

Ruther said the attorneys appear convinced of the constitutional validity of their argument so it would not be surprising if Porter appealed, but added he’s not certain the current Supreme Court would rule any differently.

It is not known when the Court of Appeals will issue its opinions in the case. The court, under Chief Judge Mary Ellen Barbera, has issued all opinions from cases heard during a term by Aug. 31, when the term ends.