The Baltimore prosecutors bringing criminal charges against the officers involved in the death of Freddy Gray won an important victory today. The trial judge ruled that Officer William G. Porter, who is awaiting retrial, will have to testify against colleagues who also are charged in the Gray matter.
Porter had argued that the Fifth Amendment gives him the right not to testify, inasmuch as he is still in legal jeopardy and his testimony might tend to incriminate him. The Baltimore prosecutors will be barred from using Porter’s testimony against him at his retrial. However, the feds are still considering bringing a case against Porter and his attorneys expressed concern that his testimony as a witness in Baltimore Circuit Court could be used against him if he is charged in U.S. District Court.
They also contend that it will be impossible for the Baltimore prosecutors to remove from their minds any new information they hear from Porter on the stand during other trials. The judge, Barry Williams, basically agreed. He stated that if Porter does take the stand against others, it will be “nigh impossible” to prove that his testimony would not have an impact on his retrial. He nonetheless ruled that Porter must testify in other cases, and said that it will be the prosecution’s burden in his proceeding to show the “nigh impossible” — namely that their case against Porter isn’t tainted by what he said in prior cases.
Judge Williams admitted that no precedent supports his decision. He stated he’s in uncharted waters. Local legal experts interviewed by the Baltimore Sun and the Washington Post agree.
Porter’s attorneys are seeking an injunction at the appeals court level against this ruling. The trial of Caesar Goodson, at which Porter will be called to testify, is set to begin next Monday. However, it might be delayed as a result of Porter’s appeal to the higher court.
Goodson is the officer who drove the van in which Gray suffered injury. He is the only officer charged with murder — second-degree depraved-heart murder.
The prosecutors apparently will argue that Goodson deliberately gave Gray a “rough ride” to teach him a lesson (or whatever). In theory, this might enable them to show the kind of intentional action needed to help sustain the murder charge.
Judge Williams has ruled that the prosecution can use testimony from a retired Baltimore police officer about “retaliatory prisoner transportation practices.” According to the Baltimore Sun, this witness is expected to testify about his familiarity with rough rides and about any training officers receive regarding proper prisoner transportation practices, including information about the potential for injury associated with rough rides.
I’m not a criminal lawyer. For what little it’s worth, however, I would have thought that such testimony should be permitted only if the prosecution first presents credible evidence that Gray actually received a rough ride. Absent such a showing, training would seem to be irrelevant and evidence that officers sometimes are abusive both irrelevant and prejudicial.
Looking at the big picture, I wonder whether justice may be getting a rough ride from politically motivated prosecutors and a judge who arguably is making their job easier than it should be.
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