Porter appeals order to testify

Posted at 6:39 PM, Jan 07, 2016
and last updated 2016-01-07 18:39:30-05

First thing Thursday morning, William Porter’s defense attorney Gary Proctor walked into the Courts of Appeal building in Annapolis to file the motion for an injunction.

The motion seeks an immediate injunction preventing his client from being forced to testify in the upcoming trials of Officer Caesar Goodson and Alicia White.

The filing suggests that “the harm to his fifth amendment and article 22 rights will be irreparable.”

Officer Porter still faces a re-trial in June and doesn't want the risk of incriminating himself, but the state is simply saying: testify against Caesar Goodson and you get immunity for anything you say on the stand.

The legal maneuver is called testimonial immunity and while that is not a novel idea, compelling someone to testify who is also still a defendant has never been done before.

"So you're really opening up a lot of doors by allowing this tactic to be used," said former Baltimore assistant state's attorney, Jeremy Eldridge. 

He said while there is some Supreme Court case law on testimonial immunity, none of those cases quite match this one and the Court of Special Appeals will have plenty to consider.

Still, Eldridge believes the court may side with the state.

"I think there is a gray area," he said. "I do not think it is black letter law, but I have a feeling they will probably come down on the side of Judge Williams on this, on this issue. However I don't believe if they come back on Judge Williams’ side on this issue that Porter will be tried again."

It was a probability Judge Williams very plainly presented to the state in court yesterday.

If it tries Porter again, it will have to meet the incredibly hard burden of proof that nothing he said on the stand in Goodson and White's trials would be used against him.

Constitutional law experts say testimonial immunity is a massive risk and may mean sacrificing the case against Porter; evidence that the state may be dealing with the eggs that have already hatched in prosecuting the officers.

"It is very important to the state to get a conviction. At first they would have liked like of convictions. After the Porter trial is seems like, let's win one…You start off saying we need to sweep the series, now, let's not get swept," said University of Maryland Law Professor Mark Graber.

But all of that is now in front of the Court of Special Appeals and we have no time frame as to when it will take up the immunity issue or if that will cause a delay in Caesar Goodson's trial.

Meanwhile, at least two trials will be moved back.

The trials of Sgt. Alicia White and Officer Garrett Miller have been pushed back to Feb. 8 and March 7 respectively.

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