The Court of Appeals’ explanation as to why Baltimore prosecutors could call Officer William Porter to testify against fellow officers also charged in connection with the death of Freddie Gray – despite his own pending charges – did not surprise lawyers following the cases.
Both the state and federal constitutions permit the practice, Chief Judge Mary Ellen Barbera wrote Friday for a unanimous court, so long as the witness is granted use and derivative use immunity as Porter was. The Fifth Amendment makes no distinction based on the fact that the witness is a defendant in his or her own trial, the judges added.
“Once the court ruled that [Porter] had to testify, I’m not surprised that the opinion is as broad as it is,” said Steven H. Levin, a former federal prosecutor.
Barbera cautioned the state would carry a heavy burden in a later prosecution of that witness to show none of the prosecution’s evidence was directly or indirectly tied to the immunized testimony.
“The state has an ‘affirmative duty to prove that the evidence it proposed to use is derived from a legitimate source wholly independent of the compelled testimony,'” she wrote, citing the Supreme Court’s 1972 opinion in Kastigar v. U.S., which established the eponymous pretrial proceeding where prosecutors are asked to meet the heavy burden.
While the idea that prosecutors could compel co-defendant testimony was initially “befuddling,” the opinion addressed the issues straightforwardly, according to former city prosecutor Adam Ruther.
“Once the orders came out, this analysis is the one that makes the most sense,” said Ruther, an associate at Rosenberg Martin Greenberg LLP in Baltimore.
Baltimore city prosecutors acknowledged the eventual need for a Kastigar hearing when they subpoenaed Porter to testify at two of his fellow officers’ trials despite his pending retrial on involuntary manslaughter charges. Porter objected and appealed Baltimore City Circuit Judge Barry Williams’ order compelling him to testify, claiming even with immunity his right against self-incrimination was not adequately protected.
Prosecutors then subpoenaed additional officers and Williams denied the motions to compel, citing his belief that the motions were filed for the purpose of delay. The state appealed the denials.
The Court of Appeals heard arguments March 3 and issued orders March 8 affirming Williams’ order compelling Porter’s testimony and reversing his denial of the state’s motions to compel the other officers.
The court’s opinion echoed the skepticism expressed by judges at oral arguments, who pressed Porter’s attorneys to explain why a Kastigar hearing would not sufficiently protect their client’s rights.
“The theme of the court’s opinion was, ‘We have to wait and see if the state abides by its promise in the immunity letter,’” Ruther said. “It definitely tracked a lot of the questions they had at the oral argument.”
Barbera called the concern “premature” and said it is prosecutors who bear the risk by compelling Porter’s testimony.
“If the State cannot satisfy its substantial burden, the Circuit Court may decide that Officer Porter cannot be retried,” she wrote.
A violation of Porter’s rights would occur when the testimony or evidence derived from it is used, not when the testimony under a grant of immunity is given, according to the opinion. To prevent the state from seeking Porter’s testimony because it may be used in a later prosecution would have the effect of granting Porter transactional immunity, which is broader than the Fifth Amendment.
Porter was not called as a witness during the trial of Officer Edward Nero despite all of the legal machinations. But a third co-defendant, Officer Garrett Miller, took the witness stand this week as a witness for the prosecution.
A verdict in Nero’s case will be announced Monday morning.
New prosecutors entered their appearances in Porter and Miller’s cases the week of Nero’s trial, presumably to establish “clean teams” which would avoid hearing any immunized testimony. Chief Deputy State’s Attorney Michael Schatzow and Deputy State’s Attorney Janice Bledsoe, who tried Nero’s case, and State’s Attorney Marilyn Mosby, who was in the courtroom when Miller testified, are, in all likelihood, unable to consult with these new teams.
Porter’s lawyers pointed out during oral arguments at the Court of Appeals the state had not established such a team, but the judges’ opinion found the argument irrelevant.
“If the State fails to erect sufficient safeguards to ensure that Officer Porter’s retrial is not tainted by his immunized testimony, the State will be hard-pressed to carry its heavy burden of providing the legitimacy of any new evidence it seeks to introduce,” Barbera wrote.
The same burden applies to any federal charges, according to the opinion, dismissing Porter’s claim that a state grant of immunity does not preclude federal investigators from using his testimony.
The court also noted that Porter and his attorneys have a complete record of the evidence used against him at his first trial, which ended with a hung jury on all counts. A Kastigar hearing prior to his retrial will allow Porter to identify “quite easily” any different evidence offered by the prosecution and force the state to carry its substantial burden, Barbera wrote.
Porter’s attorneys also expressed concern that prosecutors were creating a “minefield” for their client to navigate by the time his own trial arrived if he were to testify repeatedly at other trials.
The state accused Porter of lying at his trial, and perjury is not protected by immunity, Porter claimed; therefore, the state would be suborning perjury by compelling Porter’s testimony.
The Court of Appeals rejected that argument as well, finding it is in Porter’s best interest to testify truthfully and pointing out again the officer’s contention was premature because the state has not offered any testimony that was previously labeled false.
The exception for perjury in the immunity statute refers to future perjury, according to the court, and Porter’s previous trial testimony may not be used in any case charging him with perjury.
The Court of Appeals issued its opinion in State v. Rice, Nero & Miller, Nos. 96, 97, 98, Sept. Term 2015 and White & Goodson v. State, No. 99, Sept. Term 2015.