Williams also ruled that Porter can not be compelled to take the stand in the trials for officers Edward Nero, Garrett Miller and Lt. Brian Rice.
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The cases before the Maryland Court of Appeals involve whether Officer William Porter must testify against fellow officers charged in the death of Gray, a 25-year-old black man who died in Baltimore police custody. Prosecutors, in turn, called Porter’s “hand-wringing” about the effect his testimony could have on his retrial “unfounded and premature” in a court filing last month. His neck was broken in the back of a police transport van while handcuffed and in leg irons, but not restrained by a seat belt. The ruling was a major victory for the prosecution, and only offered transactional immunity. The mistrial has put the prosecution in a bind because they hoped to use Porter’s testimony against the other officers charged in the death.
Prosecutors contend that the court can take up the issue.
Maryland’s highest court has heard arguments on whether a Baltimore police officer charged in the death of Freddie Gray can be forced to testify against his colleagues.
But he said he saw no reason why the limited immunity would not be sufficient to protect Porter’s rights, the Baltimore Sun reported. While they must ask a judge to grant the request, they say the language of the statute says the judge “shall” grant it. One pertained to cases against three officers and the other concerned two. Williams suggested the request was a stall tactic, as prosecutors had not identified Porter as a witness in those trials earlier in the discovery process.
Williams said the move was “simply an attempt at subterfuge” because prosecutors didn’t want to try the next three cases first.
“We think we have the right to change our mind”, Schatzow told Williams. One of the questions the judges asked attorneys to address in written briefs was whether the prosecutors’ appeal was something that could even be considered by the judges.
The judges heard a second appeal stemming from the cases of Nero, Miller and Rice.
Appeals typically are filed after a case has come to a conclusion or a final judgment in a lower court.
But prosecutors say Porter is far from a pawn. They argue alternatively that there are still other ways that allow the court to take up the case.
Judge Sally Adkins asked Schatzow if the state would be able to appeal Williams’ decision on Porter’s testimony if the trial of one of the officers concluded in an acquittal.
Porter’s defense, anxious the testimony could still hurt his chances in a retrial, appealed the decision to the state.
Chief Deputy State’s Attorney Michael Schatzow argued that Circuit Judge Barry G. Williams’ had overstepped his “ministerial role” in overseeing a state motion to compel a witness by denying its request to compel Porter to the stand. Michael Belsky, Rice’s attorney, and appellate lawyer Thomas Donnelly, who the defense team enlisted for the hearing, argued on behalf of Rice, Miller and Nero that the state had no standing to appeal Williams’ decision at this stage in the criminal proceedings.
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“They called him a liar multiple times”, Gary Proctor, Porter’s lawyer, replied.
