Getting around the Fifth

On Tuesday the Maryland Court of Appeals ruled that Baltimore police officer William Porter would have to testify at the trial of five other officers charged with the manslaughter and other crimes in the death of Freddie Gray last April. You may recall that Mr. Porter was the first officer tried in the matter (ironic considering he is the only black officer charged) and that his trial ended in a hung jury.

Prosecutors sought to compel Mr. Porter to testify against his fellow officers in their trial under a grant of limited immunity. Mr. Porter refused, citing his Fifth Amendment protection against self-incrimination. Prosecutors argued that since they wouldn't be able to use any of his testimony against him at his re-trial, that Mr. Porter's Fifth Amendment protection wasn't being violated.

The highest court in Maryland agreed with prosecutors and ordered Mr. Porter to testify.

I am deeply troubled by the court requiring a man who is facing criminal charges for the same incident being compelled to provide testimony at the trial of the other officers. While the words he says from the stand aren't admissible at his trial, you better believe that prosecutors will parse his testimony for anything they can use at his re-trial. That testimony will be compared to the statements he has given in the past and prosecutors will jump on any inconsistencies or contradictions.

While the Maryland Court of Appeals may be living under the fiction that prosecutors only want Mr. Porter's testimony because he is a witness to what happened to Freddie Gray last April, the truth of the matter is the prosecutors are trying to find a way around the Fifth Amendment. They couldn't call Mr. Porter to the stand at his own trial because he has a constitutional right to remain silent. This cynical end around is nothing more than a ploy to force him to testify under oath. Make no mistake. This is all about the government forcing a criminal defendant to undergo cross-examination on the witness stand.

This case is also an example of how bad facts make even worse law. Sure, the court may very well try to couch its ruling in all sorts of language that seeks to limit the scope of its holding, but they have now given prosecutors a new tool to use in compelling a criminal defendant to testify. This guiding principle of American jurisprudence is why the Fourth Amendment looks like a slice of swiss cheese. It's why we are strapping down citizens accused of a misdemeanor and jabbing a needle in their arm.