March 14, 2016
A Tale of Two Immunities
By Jonathan F. Keiler
Criminal immunity is not usually a hot news topic. However, in recent days we have seen not only a grant of immunity to Bryan Pagliano in the Clinton email scandal, but another consequential though less publicized immunity grant forced upon Baltimore City police officer William G. Porter in the Freddie Gray cases.
We know little about the Pagliano matter, but it appears that the former Clinton IT guy got some form of immunity after his attorneys negotiated an agreement with the Justice Department. In Porter's case, the Maryland Court of Appeals affirmed a ruling (unaccompanied by a written opinion) in the trial of his colleague Caesar R. Goodson, Jr. that the officer be forced to testify in violation of his 5th Amendment rights, even though he is still facing charges himself in the same matter.
There are two types of immunity, with very significant differences. Transactional immunity, the broader type, protects a witness from prosecution from the underlying offense(s) in a case. Use immunity, the more limited form, protects a witness only against the government using that testimony in prosecuting the witness, meaning the government can still pursue the case based on other evidence – including non-immunized statements. Immunity also does not apply to charges of perjury or false statement.
We don't know what type of immunity Pagliano got. That information would give us a better idea whether a grand jury has been impaneled, since a grand jury proceeding would be probable if he got transactional immunity and less so if he got use immunity. We don't know if Pagliano has been charged or cut a plea deal, but either way, his rights are being protected by his attorneys and by seemingly judicious and cautious federal prosecutors. And Pagliano is receiving his immunity as a witness, not as a defendant in a pending related criminal matter.
This is not true of Porter, who not only was charged in the Freddie Gray case, but has already been to trial. That trial resulted in a hung jury. The prosecution obviously hoped for a conviction, but even an acquittal would have allowed Porter to testify in his colleagues' cases without impacting his 5th Amendment rights. The prosecution could have also declined to retry Porter with the same result. But instead, the prosecution decided to have another go at Porter, and get testimony against his fellow officers, too, by convincing the trial judge, Barry G. Williams, to force his testimony with a grant of limited use immunity.
This is unprecedented in Maryland – as it is in most jurisdictions – and Porter's attorneys appealed. On March 8, the Maryland Court of Appeals affirmed Judge Williams and went him one better by reversing Williams's ruling that Porter's testimony could not be forced in the trial of several other police officers on the grounds that prosecutors had not noted Porter as a witness in those cases. Porter has now been ordered to testify against his will, with limited use immunity, while still facing charges, in all five other Freddie Gray prosecutions (besides his own).
Porter will first be forced to testify in Goodson's case. Goodson faces the most serious charge – depraved heart murder – and was the driver of the van in which Gray was fatally injured. As with Porter (and all the other officers for that matter), there is little or no evidence of criminal culpability in Goodson's case. Prosecutors believed that the case against Porter was the strongest and failed to win a conviction, but they must have been encouraged that at least some jurors managed to convince themselves that Porter was guilty, even on the thin tissue of evidence the prosecution presented.
It's not even likely that Porter is actually going to say anything incriminating about Goodson. The prosecution needs Porter, because, assuming Goodson does not testify (which is a good bet, since Goodson is the only officer who did not even give a statement after the incident), the prosecution will be hard pressed even to establish context for Gray's injuries, much less gross negligence or depraved heart murder. Judge Williams will also probably allow them to examine Porter as a hostile witness, which means they can ask him suggestive leading questions. With these, the prosecution will be able to buttress their case theory to a politically sensitive jury inclined to convict.
It really won't matter whether Porter denies the allegations the questions are likely to be built upon. The point will be to reinforce the idea for the jury that Goodson deliberately tried to harm Gray. And if the jury chooses to disbelieve Porter's probable denials, he could later be subject to charges of perjury.
But it gets worse. Grasping at legal straws, in January, the prosecution unveiled a new theory of the case that Goodson gave Gray a "rough ride" (the case has been pending since May.) As with every other aspect of the prosecution, there is no actual evidence that Goodson deliberately gave Gray a "rough ride," which supposedly is a way for police officers retaliate against a difficult arrestee and "teach a lesson." To bolster this theory, the prosecution listed as an expert witness Neill Franklin, a former cop who will testify about "retaliatory prisoner transport practices." The judge decided to allow Franklin to testify over defense objection.
This is highly prejudicial to the defense. The expert testimony on the "rough ride" is intended to essentially abrogate another constitutional right – the presumption of innocence. The prosecution's probable game here is to put Porter on the stand and cross him about the "rough ride" to entice the jury and put the expert on to testify about an illegal practice for which there is no evidence, except Gray's injury.
In civil law there is a doctrine called res ipsa loquitur (meaning the thing speaks for itself), which allows a presumption of negligence when a person is injured and the mechanism of injury is in the defendant's control, though the means are not entirely clear. Civilly, Baltimore has already settled with Gray's family for $6.4 million. Res ipsa doesn't apply in criminal proceedings, where the presumption of a defendant's innocence is paramount. But Judge Williams is basically permitting the prosecution to act as though the opposite were true with the expert's testimony – effectively allowing the jury to assume facts not in evidence, and supporting the proposition that the mere fact that Gray was injured means that "bad" policemen must be criminally responsible.
While the political pressures in the Clinton email scandal are against a just prosecution, the political pressures in the Gray cases are for an unjust prosecution that is little more than an attempt to vindicate mob anger and violence at the expense of innocent police officers. The best countervailing force in both cases is for judicial officials to put aside politics and do what is right. It is still unclear whether Pagliano's immunity deal indicates that this will happen in the Clinton scandal. It is abundantly clear in the Freddie Gray cases that the immunity forced on Officer Porter means that the Maryland judiciary will not do what's right and is intent on legally whitewashing and rationalizing a kangaroo court.
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