EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, February 19, 2016

Court of Appeals of Maryland Steps in to Sort out 5th Amendment Issue in Freddie Gray Trials

Yesterday, I posted an entry about the George Johnson case, in which Johnson has claimed that Thiruvendran Vignarajah violated the Fifth Amendment by calling his alleged co-conspirator, Derrick Toomer, knowing that Toomer would invoke his privilege against self-incrimination when asked about the crime. The State's response is that this was not inconsequential theater because Vignarajah had offered Toomer immunity, meaning that he was justified in calling him to the stand. In turn, Johnson has argued that such immunity couldn't protect Toomer against federal prosecution and that Toomer was appealing his conviction, meaning that there could be a retrial and the very real danger that Toomer's testimony could be used against him at that retrial.*

Hours later, it was reported that the Court of Appeals of Maryland "halt[ed] trial proceedings against the Baltimore police officers charged in the Freddie Gray case, taking up competing appeals on whether Officer William G. Porter can be compelled to testify against his five fellow defendants." In other words, Maryland's highest court is addressing the same issue that is at the heart of Johnson's appeal.

Porter, you might recall, was the officer in the van transporting Gray who did not ask for a medic in response to Gray's request for medical assistance. His first trial on charges ranging from misconduct to manslaughter ended in a hung jury.  

The Court of Appeals of Maryland has stepped in to determine whether the State's offer of immunity to Porter is sufficient to allow the State to compel him to testify at the trials of his co-officers. According to Justin Fenton,

In the cases against Officer Caesar R. Goodson Jr. and Sgt. Alicia D. White, in which Porter has been ordered to testify, the question is whether the state's immunity statute can protect Porter's Fifth Amendment right against self-incrimination by denying prosecutors the right to use anything he says on the stand against him in his retrial, scheduled for June.

In seeking to block Williams' order forcing Porter to testify in the Goodson and White trials, Porter's attorneys contend that only witnesses, not co-defendants, can be granted immunity and be forced to testify. They also contend that the immunity granted might not protect Porter from federal prosecution or perjury charges. Prosecutors argue that the immunity would be sufficient to protect Porter's constitutional rights, and Williams agreed.

These is the same basic question in the Johnson appeal: Does a State offer of immunity to a co-defendant compel that witness to testify, or does that co-defendant face an appreciable fear or his testimony being used against him at a subsequent state or federal trial? The answer to this question can seemingly be found in the opinions I cited yesterday: Adkins v. State, 531 A.2d 699 (Md.App. 1987) and Adkins v. State, 557 A.2d 203 (Md. 1989). As the Court of Special Appeals noted in the former opinion,

however remote appellant thinks Troxell's chances of success on appeal may have been, he still was in jeopardy of incrimination, and, under the circumstances, we are hard-pressed to see how the State could have granted him immunity or “made a deal” for his testimony. In any event, the State has no obligation to offer any such extraordinary inducements in order to justify a finding of unavailability.

In Porter's case, the argument is even stronger. Both Toomer (in Johnson's case) and Troxell (in Adkins) faced the mere possibility of retrial if their appeals were successful. Porter faces the near certainty of a retrial, making his Fifth Amendment claim stronger.**

But before the Court even gets to this substantive issue, it has to determine whether the Fifth Amendment decision regarding Porter were "final," meaning that they could be immediately appealed, or "interlocutory," meaning that they could not be immediately appealed.


*Toomer subsequently brought a federal lawsuit against Vignarajah and his co-prosecutor which was dismissed without prejudice after Toomer's murder conviction was thrown out. It now appears that Toomer will indeed have a retrial.

**Porter's attorneys have claimed that 

the prosecution was making "attempts to circumvent Officer Porter's unassailable right against self-incrimination" and that the type of immunity granted was meant for witnesses, not defendants.

"The state has presented no case law in which use and derivative use immunity was ever given to a defendant in Officer Porter's current situation — a fact the state does not dispute," they wrote.



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Under Murphy v. Waterfront Comm'n, doesn’t a state grant of immunity and derivative use immunity prevent the federal government from using the compelled testimony or its fruits, so shouldn’t that not be an issue? I’m not quite clear on why the state is unable to offer effective immunity in this case.

Posted by: Josh | Feb 19, 2016 8:10:08 AM

I'm puzzled. I don't see how an offer of immunity implies an acceptance of immunity. On it's face the 5A gives a right to the defendant and I don't see how the state can wipe away that right with a mere offer or a promise. It may seem to some that the defendant's holding on to a right in the face of immunity is unreasonable but my response to that is that it's the defendant's right and he can act unreasonable if he so chooses.

So to me it is not relevant whether he had a fear or not. He doesn't need a reason to invoke the 5A.

Posted by: Daniel | Feb 19, 2016 2:44:04 PM

Daniel: The 5th Amendment, though, gives a right against compelled self-incrimination, not against compelled testimony in a matter that would be criminal if not for a grant of immunity, or against testimony relevant to a criminal matter that nonetheless cannot be used to incriminate. The words “compelled in any criminal case to be a witness against himself” imply the presence of a “criminal case” against a speaker, so if the possibility of such a criminal case is eliminated (through transactional immunity) than the 5th amendment right to silence is not implicated. Similarly, the right also depends on whether a speaker would, by speaking, become a “witness against himself;” thus, if use and derivative use immunity is granted, any compelled testimony does not make the speaker a witness against himself (as opposed to, for example, a co-defendant) so, again, the right does not apply.

The case law is clear that use and derivative use immunity, at a minimum, is sufficient to allow the state to compel testimony (and other jurisdictions in our federal system are prevented from utilizing that compelled testimony). The issue becomes less clear if a statement would incriminate the speaker in a foreign jurisdiction over which U.S. legal authority has no control; however, in such cases, the privilege cannot generally be invoked, see United States v. Balsys.

Posted by: Josh | Feb 20, 2016 10:28:57 AM

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