New Ruling in the Freddie Gray Case Could Set a Dangerous Precedent

[jimmy olsen]

When I read this, I wondered about a much more basic question that revealed how little I know understand the law. How does the state compelling the officer to testify against his comrades not violate his 5th amendment rights?

http://www.slate.com/blogs/the_slatest/2016/03/09/freddie_gray_ruling_on_william_porter_could_set_dangerous_precedent.html

A New Ruling in the Freddie Gray Case Could Set a Dangerous Precedent in Criminal Law

By Leon Neyfakh

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.

[Razgovory]

Is this a real thing or it just something written by Slate.

[jimmy olsen]

Is this a real thing or it just something written by Slate.

It was written by Leon Neyfakh .

[dps]

When I read this, I wondered about a much more basic question that revealed how little I know understand the law. How does the state compelling the officer to testify against his comrades not violate his 5th amendment rights?

Well, I'm not sure exactly what "forced to testify" means in this context (I haven't looked at the ruling itself).  If it just means that he's forced to take the stand as a prosecution witness against the other officers, but can still decline to answer any given question on the grounds that it might incriminate him, then it doesn't violate his 5th Amendment rights.  If he's actually compelled to answer, though, then it probably does violate his rights.

[CountDeMoney]

It's only because his trial resulted in a hung jury that this is even happening; all they want is to get the testimony from him they would've have expected to receive had he been found guilty.  It's just a hedge, because all they really want his testimony for is the wagon guy, he's the one with the worst case against him, and the one they really want make sure the Ts are crossed with.  Porter may still have his ass on the line, but that might come down to what happens to Goodson.
The female sergeant may just walk away without a job, but Lieutenant Domestic Violence that started all this in the first place with a round of Let's Fuck With Freddie shouldn't be a fucking cop anymore anyway, so that's not going to break anybody's heart.  The remaining two, Nero and the other guy, will probably walk away as well but somebody's got to go to jail, and it's going to be the wagon driver and, with luck, that piece of shit Rice.

[Razgovory]

I can see why you wanted to get out of there.

[11B4V]

I can see why you wanted to get out of there.

That is the tip of the iceberg. This is just one department.

[DontSayBanana]

When I read this, I wondered about a much more basic question that revealed how little I know understand the law. How does the state compelling the officer to testify against his comrades not violate his 5th amendment rights?

http://www.slate.com/blogs/the_slatest/2016/03/09/freddie_gray_ruling_on_william_porter_could_set_dangerous_precedent.html

He can go on the stand and invoke the 5th when questioned.  The argument is that simply being brought to the stand is a violation of his 5th amendment rights, which is bunk.  He just doesn't want the PR nightmare of pleading the 5th on the stand.

[dps]

I STILL need to learn to type faster, it seems.

[Barrister]

When I read this, I wondered about a much more basic question that revealed how little I know understand the law. How does the state compelling the officer to testify against his comrades not violate his 5th amendment rights?

http://www.slate.com/blogs/the_slatest/2016/03/09/freddie_gray_ruling_on_william_porter_could_set_dangerous_precedent.html

He can go on the stand and invoke the 5th when questioned.  The argument is that simply being brought to the stand is a violation of his 5th amendment rights, which is bunk.  He just doesn't want the PR nightmare of pleading the 5th on the stand.

That's not my read of the story at all.  It means he can not plead the 5th on the stand - but that what he says can not be used against him.

Which is kind of laughable for a Canadian criminal lawyer to read - because that's exactly how our "right to silence" works.  I can call almost any witness I want, and I can force them to answer almost any question I want.  But all of their evidence is then "compelled testimony", and it can not be used against them in any other court proceeding.

Frankly I'm surprised the "bad guys" don't use this loophole more often.  Your buddy is charged with an offence?  Go testify that "I was the one who did it".  Create enough uncertainty to raise a reasonable doubt, and be secure that your confession can't be used against you.

Instead, in the real world, what tends to happen is that when I call one bad guy in the second bad guy's trial, I get a lot of "I don't remember".

[CountDeMoney]

I can see why you wanted to get out of there.

I could get fired, jailed or killed on my own, I didn't need fellow officers to do it for me.

[garbon]

When I read this, I wondered about a much more basic question that revealed how little I know understand the law. How does the state compelling the officer to testify against his comrades not violate his 5th amendment rights?

http://www.slate.com/blogs/the_slatest/2016/03/09/freddie_gray_ruling_on_william_porter_could_set_dangerous_precedent.html

He can go on the stand and invoke the 5th when questioned.  The argument is that simply being brought to the stand is a violation of his 5th amendment rights, which is bunk.  He just doesn't want the PR nightmare of pleading the 5th on the stand.

That's not my read of the story at all.  It means he can not plead the 5th on the stand - but that what he says can not be used against him.

He's been granted limited immunity as more reputable sources note. So yeah, I don't see what is the big deal here.

[DontSayBanana]

He's been granted limited immunity as more reputable sources note. So yeah, I don't see what is the big deal here.

See, I hadn't come across that part.  Yeah, that makes things quite a bit different.  What we've got here is exactly what Beeb described- he can be compelled to testify, and his testimony won't be admissible in his own trial.

[Jaron]

May the Creater protect us.

[Valmy]

May the Creater protect us.

But has he endowed us?