See if you can spot the constitutional problem with this little arm-twisting arrangement:
Maryland’s highest court has ruled that a Baltimore police officer charged in the death of Freddie Gray must testify against his colleagues while he awaits retrial.
The Court of Appeals issued a ruling Tuesday siding with prosecutors who asked a judge to compel William Porter to testify against the five other officers facing charges stemming from Gray’s death. Porter’s first trial ended in a hung jury in December. [emphasis added]
Hint: It's a matter of timing.
At one point, Judge Clayton Greene Jr. asked Porter’s attorney why it’s a problem for Porter to testify as a witness, given that he already testified in December at his own trial, which ended in a hung jury.
“Isn’t the cat kind of out of the bag now?” Greene asked. “What is the harm to Officer Porter if he were to simply tell his story again in multiple trials?”
But Judge Lynne A. Battaglia said prosecutors face a “minefield” of problems in their retrial of Porter if they push forward with him as a witness in the other trials. An attorney for the State’s attorney’s office agreed, saying prosecutors will encounter a “heavy burden.” [emphasis added]
Give up? Okay, here's the problem, and it comes right out of the aforetitled Amendment V:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. [emphasis added]
The case can be made that re-trying Officer Porter constitutes double-jeopardy as well, but we're focused on the self-incrimination clause. Marilyn Mosby wants to jail for life - or execute, if she could bring back the death penalty in Maryland - the whole of the Baltimore Six. But Officer Porter's (first) trial ended in a hung jury because, remarkably, even a jury drawn from Baltimore's population balked at Mrs. Mosby's over-charging and refused to destroy a man's life, whatever wrongdoing for which he might actually be culpable in the Freddie Gray incident, over something it could not be factually proven that he did. So determined is Mrs. Mosby to put away the other five that she's gotten a judge to sign off on forcing Officer Porter to testify against his colleagues - which redefines the term "hostile witness," but I digress - and that's fine and dandy, assuming that she foregoes his retrial. Why? Isn't it obvious? If he's forced to testify against the other officers about his role in the same case, what he says in his testimony cannot, per Amendment V, then be used against him later. It has to be exculpatory. And yet the State Supremes are forcing him to testify anyway, and there's no way on Earth that Mosby is not going to go for the clean sweep. So how, then, is Officer Porter not being effectively forced to incriminate himself?
The answer to this dilemma, which I'm sure his legal team has already told him, is to answer each question on the stand with, "I'm sorry, I cannot answer on the grounds that it might incriminate me" or words to that effect. Heck, he ought not need any lawyer to tell him that.
And from the standpoint of the prosecution, forcing Officer Porter to testify against his colleagues will just pollute their cases as well and tie up the whole process in appeals, mistrials, and more hung juries. It'll be an utter and complete mess....assuming anybody in the Maryland State court system remembers to belatedly start applying the Bill of Rights to the proceedings. Otherwise, they'll just be Mrs. Mosby's accomplices in this mockery of justice.
And that appears to be the way to bet.
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