The Court of Appeals and Freddie Gray

It really does reflect incredibly poorly on the State's Attorney. The fact that we're plumbing new depths of legal precedent illustrates how much of a witch hunt this is. In any other case where there wasn't a political motive, the state wouldn't have prosecuted Porter in exchange for his testimony. That's how it works. That's why there's no precedent. No one's ever been desperate enough to get convictions to try this.

This on-line reaction to the Court of Appeals order compelling Officer William Porter to testify against his co-defendants in the Freddie Gray case sums up my view.  But let me elaborate. 

The "new depths of legal precedent" began with the trial judge ordering Porter to testify against two co-defendants, Sgt. Alicia White and Officer Caesar Goodson, while Porter was still pending criminal charges in the same case after his first jury hung. The secondary issue was whether the judge could refuse to make Porter testify against the other three co-defendants when the judge believed that it was a ruse by prosecutors to postpone those cases until after the White and Goodson trials.

And therein lies the rub. The potential for prosecutors to abuse their authority. It's exactly what the late Supreme Court Justice Thurgood Marshall warned about in dissenting from the Supreme Court's approving the use of testimonial immunity. When a witness is given testimonial immunity, it means that they cannot invoke their 5th Amendment privilege against self-incrimination, but that nothing they say, or anything derived from what they said (new leads, new evidence, etc.) can be used against them. This immunity, he said, was tied to the good faith of prosecutors, and he was unwilling to put such power in their hands.

State's Attorney Marilyn Mosby and her lead prosecutor, Michael Schatzow, took a law that was aimed at witnesses and used it to force a person facing charges to testify. Career prosecutors have not done this, understanding the intent of the law.  As the commentator said, they make plea bargains with co-defendants to get their testimony instead.  But Schatzow wanted Porter's hide, too, or maybe he knew Porter wouldn't take a plea deal because he committed no crime.  So it took a civil litigator-turned-prosecutor to play legal gamesmanship and extract a new meaning from the immunity law. The potential for prosecutor mischief is huge. In fact, Schatzow has already demonstrated that potential by using his power to postpone cases.

But greater abuse is possible.  A prosecutor, for example, could deliberately set up a witness for a perjury charge, since perjury is excluded from protection.  Assistant attorney general Carrie Willliams, in arguing the case before the Court of Appeals, said that there is "no right to commit perjury."  Well, one of the ancillary protections of the 5th Amendment is to not be maneuvered into lying to protect oneself.  It is naive to think that a defendant would trust a prosecutor to not consciously or unconsciously improperly use his testimony against him.  

Porter's attorney, Gary Proctor, who seemed out-of-his-league at the Court of Appeals hearing, nevertheless made the point that by making Porter testify five times in co-defendant cases prosecutors would also be forcing the kind of inconsistencies that come naturally when people tell the same story over and over, but that could be used to damn him later.

A prosecutor could also use the compelled testimony to get leads and then manufacture evidence that she got these leads herself.  However "heavy" (per Williams) the burden is upon prosecutors to prove that they didn't do this, the truth is that any bad faith of the prosecutor would be difficult to unmask.

As a young prosecutor, I was offended when defense attorneys suggested that I would hide evidence or misuse my position to get a conviction. But when I encountered slimy defense attorneys who had once been prosecutors, I understood the suspicions. I have them myself about Marilyn Mosby, who from the beginning has violated her ethical responsibilities in these cases.

Schatzow, in arguing before the Court of Appeals, essentially told them that it was none of their business why he suddenly wanted to call Porter as a witness in the trials of three officers, which he knew would force postponements. He argued that it was his job to decide on his witnesses and the court's job to make them testify as long as he followed procedural steps. In other words, he claimed the privilege to manipulate the law to maneuver his cases into the most favorable position for himself. Schatzow needs a conviction on any count against any defendant to justify his indictments, and wanted to move the weakest cases to the end of the line. He even risked having an important prosecutorial tool, testimonial immunity, ruled unconstitutional under the Maryland constitution, to get his way.

It didn't happen, though I don't know whether that was good or bad for prosecutors. Good that they still have the tool when needed against criminals, bad in that they may pull a Schatzow: use the power to manipulate defendants and cases to get convictions of any kind in spite of the lack of evidence.

We will know more about the thinking of the Court of Appeals when they release their full opinion.  My guess is that they followed the letter of the law on both issues. First, the testimonial immunity statute does not specifically exclude charged defendants from being forced to testify, and there is no legal precedent to say that they can't be. Second, that the law does not provide for trial judges to decide whether a compelled witness is necessary to a prosecutor's case or not.  In addition, since Porter had already testified in his own defense the "cat", as one justice said, was "already out of the bag." Williams made a similar point: Porter was better off having already been tried, since everyone could see what evidence the State had against him before he testified.  This may have also factored into their decision.  Judges generally try to limit themselves to the facts in front of them, not theoretical scenarios.

But I have little doubt that the justices are on high alert to the potential for abuse. After all, Schatzow practically admitted that he manipulated the system to get postponements, and they could not have liked that. They may not feel that the law allows them to step in now, but I have no reason yet to not trust this court - now that former Chief Judge Robert Bell has retired - to apply the law properly.

And that should include reversing any convictions of these officers, either on the grounds that the trials should have been moved from the city, or on the grounds that the evidence in the cases do not support the charges. After all, forcing Porter to testify doesn't change the facts. Porter will only say what he testified to previously: that while Gray may have asked for a medic in response to his question, he did not appear to be injured. So whatever he told White and Goodson, he would not have communicated any imminent danger that the others ignored.  What his testimony will do is help prosecutors get past a motion to dismiss the case, and give any biased jury a hook to hang a conviction on.

But the officers, as I have written, committed no crime. Damaged as my faith is in the ethical behavior of prosecutors, I have to believe that the Maryland appeals courts will ensure ultimate justice.  Not "justice for Freddie Gray" - justice.