The delay in the trials of the six officers charged in the death of Freddie Gray leaves the fate of the accused uncertain and Baltimore's demand for justice unresolved.
The indefinite hold was sparked Monday when the prosecution subpoenaed Officer William Porter to testify against Officer Caesar R. Goodson, Jr., whose case was to start this week.
In providing materials to backup their request, the prosecution offered Porter limited immunity via “use and derivative use." Judge Barry Williams agreed to the subpoena, and compelled Porter to testify in the case. The judge said Porter would not be able to use the Fifth Amendment clause against self- incrimination as a defense. Baltimore State’s attorney, Marilyn Mosby, announced late this week she will use Porter’s testimony in all of the trials; however, it can’t be used in his retrial, which is scheduled for June.
Judge Williams acknowledged, “they were in uncharted (legal) waters.” Last Thursday, the Defense filed an injunction to quash the subpoena and prevent the implementation of the orders. The next day, the State of Maryland filed a response questioning whether the Appeals Court is the correct venue to hear this case.
This legal conundrum has no case law in Maryland but, has precedent at the federal level, according to defense attorney, Charles Ware. “Derivative use immunity was originally enacted in Federal Law in 1857, and was intended to illicit testimony from just "witnesses" (with little to no thought of the applicable witnesses being "co-defendants" in the same factual scenarios or cases).”
The Maryland Court of Appeals, which will hear this challenge, has ordered all the parties to provide legal briefs by the end of February. The Court of Appeals will hear oral arguments on March 4. There is no timetable on when they will rule.
Sgt. Alicia White, the only other Black officer, was scheduled to begin her preliminary hearing next week. Her attorneys are also expected to challenge Porter’s testimony.
Outside the courthouse, several protesters expected jury selection to begin in Goodson’s case. They were disappointed. Expressing concern about “when justice will be served.”
Attorneys for Goodson also filed a motion this week, which questioned whether their client could a get a fair trial “in a timely matter.”
Goodson, who was the police van driver, faces the most serious charges in the death of Freddie Gray. He was charged with second degree depraved heart murder (the equivalent of second degree murder), second-degree assault, two counts of vehicular manslaughter, misconduct in office and reckless endangerment.
It’s clear the Prosecution needs Officer Porter to testify against Officer Goodson. Attorney Ware notes, “the issue of derivative use immunity has become a classic legal battle between the compelling need for the ‘truth’ in cases versus the personal freedom protections allegedly ensured by the Constitution in the Fifth Amendment against self-incrimination.”
Porter has previously implicated Goodson. In a taped deposition he tells internal instigators, Gray needed a medic. He relays his concern to the driver, Officer Goodson. The tape was shown during his mistrial. Porter says he relayed the same information to his supervisor, White, who tells him to take Gray to the Western Police District Headquarters before going to the hospital. In both cases, the officers did nothing.
On Monday, jury selection was scheduled to start in Goodson’s trial. Judge Williams puts the proceedings on hold, awaiting the findings of the Special Appeals Court on whether Porter will be compelled to testify.