The prosecution of six Baltimore police officers charged in the death of Freddie Gray received a jolt on Tuesday, setting the stage for the resumption of proceedings that had been put on hold after the case against one of the officers, William Porter, resulted in a hung jury in December.
A surprise ruling from the Maryland Court of Appeals on Tuesday held that Porter can be forced to testify against his fellow officers when their cases go to trial—even if prosecutors retry him separately, as they’ve said they intend to do. The catch is that nothing Porter says on the stand while testifying in the other trials—and no evidence that the state discovers as a result of his testimony—can be used against him if and when he faces prosecution again.
As the New York Times put it today, Tuesday’s ruling is a “major victory for the state in a complex prosecution.” But the ruling also brings up an interesting and important legal question: In the likely event that Porter does face trial again, how will the court distinguish between evidence that prosecutors obtained on their own from evidence they obtained as a result of Porter’s forced testimony during the other officers’ trials?
According to David Jaros, an associate professor of law at the University of Baltimore, the risk of that happening in this particular case is actually quite low, since prosecutors have already pressed their case against Porter once and revealed all the evidence they have against him. If the state ends up introducing new evidence in the second trial, Jaros told me, it will inevitably come under strict scrutiny, meaning prosecutors will feel significant pressure to avoid bringing in anything derived from or based on Porter’s testimony in the other trials.
“We know all the evidence—they have already had Officer Porter testify for hours, he has been cross-examined about what he said happened, and he gave a videotaped statement,” Jaros said. “In other words, everything the prosecutors have, they have already put into the record at the first trial, so we have a really good idea about the evidence the prosecutor has independently developed, and we will know if any evidence coming out in his retrial is based on the testimony he gives in the other officer’s trials.”
Of course, a second trial of Porter would inevitably proceed differently than his first one did, which means prosecutors will have quite a bit of wiggle room. “Trial testimony can be very subtle,” said criminal defense attorney Scott Greenfield, who blogs frequently about legal matters at Simple Justice, in an email. “And since testimony is never exactly the same when done over, small differences can creep in, seemingly undetectable, which can significantly alter the impression given a jury. It’s not always the sort of thing you can put a finger on, and it’s easily explainable as a normal variation, but the influence of Porter’s testimony at another trial can easily worm its way into his retrial.”
But legal experts, including Jaros and Greenfield, are concerned about Tuesday’s ruling for a bigger reason—one that goes beyond Porter, and could set a dangerous precedent that would affect all kinds of future cases involving multiple defendants. To understand the concern, imagine a case in which co-defendants A, B, and C are all set to face trial separately, and co-defendant A is compelled to testify against B and C before A himself has been tried. In that scenario, it could be very difficult to determine whether the evidence that prosecutors end up using against A was obtained independently, or as a result of his testimony.
Such a scenario, Jaros said, is extremely unusual, and for good reason: by coercing testimony from someone about an incident and then putting them on trial for their role in that same incident, prosecutors would be making it very difficult to tell whether they are using the defendant’s words from the earlier trial against him, and thus violating his right against self-incrimination.
“It would be really disturbing if, in future cases, codefendants who didn’t have a clear outline of all the evidence that was going to be used against them—the way Porter does in this case—were forced to testify,” said Jaros. “That would be problematic… We’re making a huge leap of faith that evidence obtained independently, and evidence obtained through coerced testimony, can be walled off from each other in future cases, and I think that’s a very dangerous assumption.”
Tuesday’s ruling from the Maryland Court of Appeals was extremely brief, and did not include any explanation of the reasoning that led to the decision. It’s possible that when that explanation is released in the form of an opinion, the court will reveal that it’s restricting its ruling only to situations in which the evidence against a co-defendant who is being forced to testify has already been presented. If that is what they end up saying, Jaros said, the decision would be “a much less disturbing precedent.” If it’s not, we can expect criminal defense attorneys around the country to worry and strenuously object.
