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 six 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 what many view as a slam dunk case for a conviction, the prosecution faces an uphill battle 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.
Baltimore police arrested Freddie Gray on April 12, 2015 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, the investigator assigned to the case, Gray stated to Porter he could not breathe. And 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.
Prosecutors subpoenaed William Porter to testify in the trial against Goodson. A subpoena compels a witness to testify unless there are legal grounds to avoid the witness's testimony. Porter asserted his 5th Amendment rights against having to testify. Last week, Judge Barry Williams denied Porter's motion. And Porter's lawyers appealed to the Maryland Court of Special Appeals. The decision hangs in the balance with Maryland's appellate court. As of this writing, the appellate court has not ruled.
Prosecutors and defense attorneys could not have anticipated a hung jury. However, one did occur and it raises substantial issues about the prosecution's possibilities for convictions in Goodson's case. 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 five 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, 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 for the van driver -- far worse than Porter's hung jury.