The hung jury in December of William Porter’s trial raises critical issues for the prosecution in trying the van driver, Caesar Goodson, for the death of Freddie Gray. Goodson’s trial scheduled to start on January 11, was postponed on the same day by the Maryland Court of Special Appeals pending rulings on whether Porter must testify in the case.
The prosecution’s cases of the 6 Baltimore police officers charged in the death of Freddie Gray are difficult ones to prove. As a former Baltimore prosecutor, I know the challenges of proving a homicide case based on circumstantial evidence. Despite much of the perception of a slam dunk case for a conviction, without video, a confession and any eyewitnesses other than the involved police officers and another detainee in the van, Donta Allen, who testified as a defense witness for the police, the prosecution always faced an uphill battle.
On April 12, police arrested Freddie Gray and placed him in a police van driven by Officer Caesar Goodson. According to trial testimony I observed, Gray was not restrained by a seat belt as Baltimore Police general orders require. And according to Detective Syreeta Teel, an investigator assigned to the case, Gray stated to Porter he could not breathe. Gray, appearing lethargic, asked Officer Porter for help. Officer Porter, van driver Goodson and Sgt. White failed to call a medic. Approximately, 45 minutes later after being placed in the van, Gray was not breathing and unconscious. He died one week later from spinal cord injuries.
The prosecution subpoenaed William Porter to testify against Goodson. A subpoena compels a witness to testify unless there are legal grounds to avoid the witness’s testimony. Porter filed a motion and asserted his 5th amendment rights against having to testify and give incriminating testimony against himself in his re-trial scheduled for June, 2016. Judge Barry Williams denied is motion. Porter’s lawyers appealed to the Maryland Court of Special Appeals. A decision has not been made as of this writing.
Prosecutors and defense attorneys could not have anticipated a hung jury. However, one did occur and it raises substantial issues about the prosecution’s case and the possibilities for convictions. Based on the hung jury and the need for Porter to testify in the van driver’s case, the state offered what is known as use and derivative immunity for Porter to testify. In essence, the state cannot use the testimony of Porter in his trial in June, 2016. Porter was not offered transaction immunity which would have given him full and complete immunity—thereby dropping the charges against him.
The prosecution absolutely needs William Porter’s testimony in the case against Caesar Goodson. While a conviction is not guaranteed with Porter’s testimony, I don’t see any way the state can obtain a conviction without Porter’s testimony. Goodson, unlike the other 5 officers, did not give a statement. There is nothing to impeach. And undoubtedly, Goodson will likely testify in his own behalf.
Based on the essential need for Porter to testify and the hung jury issue, the prosecution should have offered full immunity to Porter in exchange for his truthful testimony against the van driver—the most culpable defendant. If the Maryland appellate court rules that Porter cannot be compelled to testify with use immunity, prosecutors must weigh heavily towards granting full immunity to Porter.
Without Porter’s testimony, the prosecution runs the high risk of a not guilty verdict— far worse than a hung jury.
Washington, DC based Debbie Hines is a trial lawyer, legal analyst and former prosecutor. When she is not in the court room on behalf of her clients, she often appears on air on Al Jazeera America, BET, MSNBC, Fox 5 DC, Sky News, among others. Her Op Ed’s appear in the Washington Post, Huffington Post, Baltimore Sun and Baltimore Afro American.