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Judicial Watch • Caesar Goodson v. State of Maryland 2308

Caesar Goodson v. State of Maryland 2308

Caesar Goodson v. State of Maryland 2308

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THE
COURT SPECIAL APPEALS MARYLAND
_____________________________________
September Term, 2015
No. 2308
____________________________________
CAESAR GOODSON
STATE MARYLAND, Appellee Interlocutory Appeal from the Circuit Court
For Baltimore City, Maryland
The Honorable Barry Williams, Presiding
BRIEF JUDICIAL WATCH, INC. AMICUS CURIAE FOR
APPELLANT WILLIAM PORTER
Paul Orfanedes
Md. Bar No. 9112190026
Lauren Burke
JUDICIAL WATCH, INC.
425 Third Street, SW, Suite 800
Washington, D.C. 20024
Tel: 202-646-5172
Fax: 202-646-5199
porfanedes@judicialwatch.org
lburke@judicialwatch.org
Counsel for Amicus Curiae
February 2016
TABLE CONTENTS
STATEMENT THE CASE AND INTERESTS THE AMJCUS CURIAE .....................................................................................
QUESTION PRESENTED .................. ....... .......................................................................2
STANDARD REVIEW .......... ........................ .... .... ..... .... .... ....... ...... ......... ....... ........ ...3
ARGUMENT .......... ... ... ... ..... ...... ............ ............................. ........................ ........ ................
CONCLUSION ..... ... ..................................... ............................. ........ .................. ......... .....
CERTIFICATE WORD COUNT AND COMPLIANCE
WITH RULE 8-112 .................................................................. ..... .........................
CERTIFICATE SERVICE ..........................................................................................
TABLE AUTHORITIES
Cases
Chambers Mississippi,
410 U.S. 284 (1973) ..................................................................................................
Choi State,
316 Md. 529 (1989) ...................... ............................. ................................
Graves United States,
472 A.2d 395 (D.C. 1984) .......................................................................................
Hoffman United States,
341 U.S. 479 (1951) .................................................................................................. Criminal Investigation No. 1-162,
307 Md. 683 (1986) ....... ................................................................. ........ ......
Kastigar United States,
406 U.S. 411 (1972) ......................................................................................
Langley State,
421 Md. 560 (2011) ............................ .................................................... .................
Murphy Waterfront Comm
378 U.S. (1964) ................................................................................................
People DeFreitas,
140 Cal.App.3d 835 (Cal. Ct. App. 1983) ................................................................
Pillsbury Co. Conboy,
459 U.S. 248 (1983) ................................................................................ .............
Rock Arkansas,
483 U.S. (1987) ....................................................................................................
United States Apfelbaum,
445 U.S. 115 (1980) ..................................................................................................
United States Watkins,
505 F.2d 545 (7th Cir. 1974) ............................... ........ ......... ....................................
Constitutional Provisions
U.S. CONST., amend. ...............................................................................................passim
U.S. CONST., amend. ......................... ...................... ..... ................................. ........passim
Statutes u.s.c. 6002 ................. .... ....... ..... ... ............. ...................... ........... ..... ........ ..... ............
MD. CODE ANN., CTS. AND JUD. PROC. 9-123 .................................... ... ... ..... ....passim
MD. CODE ANN., CTS. AND JUD. PROC. 9-123(b )(2) ........ ....... ......... .... ...........................
111
STATEMENT THE CASE AND INTERESTS
OFTHEAMICUSCURIAE
The death Freddie Carlos Gray, Jr. police custody generated widespread
outrage and caused weeks tension and violence the City Baltimore. The scope
the rioting that plagued the city following Mr. Grays death has precedent recent
memory. Cars were set fire, cinder blocks were thrown police, stores across the city
were looted, and buildings were burned. Baltimore was state emergency. The
National Guard had brought stop the violence.
Cities across the country had faced similar unrest following deaths police
custody confrontations with the police. Unlike other cities, Baltimore immediately
suspended six involved officers and swiftly charged each officer with multiple felonies.
Certainly, justice must served and police brutality, misconduct, and racism
must not tolerated. Officers must held accountable they break the law. The
interests justice and public confidence law enforcement require less. These same
interests are not served, however, reactionary efforts quiet unrest and appease
violent protesters. Such efforts are short-sighted. They undermine the integrity the
judicial process and erode public confidence both law enforcement and the courts.
Eric Gamer Staten Island, New York; Michael Brown Ferguson, Missouri. April 30, 2015, Baltimore officials announced the investigation had been turned
over the states attorney. The next day, May 2015, all six officers were charged.
Officer Caesar Goodson Jr., the driver the van, was charged with second-degree
murder, three counts manslaughter and assault. Lt. Brian Rice was charged with
manslaughter, assault and false imprisonment. Sgt. Alicia White and Officer William Porter were charged with manslaughter and assault. Officers Garrett Miller and
Edward Nero were charged with assault and false imprisonment. All were charged
with misconduct office.
Judicial Watch, Inc. (Judicial Watch) not-for-profit, educational foundation
that seeks promote integrity, transparency, and accountability government and
fidelity the rule law. Judicial Watch regularly files amicus curiae briefs and has
appeared amicus curiae before Maryland courts other occasions. Judicial Watch
seeks participate amicus curiae this matter ensure that due care and the full
protections the law not hasty rush judgment short-sighted effort placate
angry protesters are afforded all persons and entities involved. particular concern Judicial Watch are the uncharted questions law raised the States efforts
compel Officer William Porter testify the trials his fellow officers following
his mistrial and before his retrial.
Judicial Watch addresses two particular issues
regarding the constitutional protections governing compelled, immunized testimony and
the interplay between compelled, immunized testimony and the Sixth Amendment.
QUESTION PRESENTED
Whether Officer William Porter (Officer Porter), whose prosecution
criminal charges arising from the in-custody death Freddy Carlos Gray, Jr. resulted mistrial and who now faces retrial, may compelled testify against his fellow
officers while preserving his rights under the Fifth and Sixth Amendments the United
States Constitution.
The trial court apparently declared that found itself uncharted territory when
ruling the issues presently before this Court. Brief Appellant William Porter
(citing Transcript, Jan. 2016, 65).
-2-
STANDARD REVIEW
The question presented question law, which reviewed under nondifferential, novo standard review. Langley State, 421 Md. 560, 567 (2011).
ARGUMENT
The Fifth Amendment the United States Constitution grants witnesses
privilege against compelled self-incrimination. Criminal Investigation No. 1-162,
307 Md. 674, 683 (1986). witness may assert the privilege any proceeding order prevent disclosures that the witness reasonably believes could used criminal
proceeding lead uncover other evidence for criminal prosecution. Id. Despite
this privilege, the government can compel witness testify the witness obtains
immunity coextensive with the privilege. Id.; see also Kastigar United States, 406
U.S. 441, 449 (1972). The immunity must granted statute; court has inherent
power compel testimony the face witness claim the Fifth Amendment
privilege. Criminal Investigation No. 1-162, 308 Md. 683. valid, the
statutory immunity must leave the government substantially the same position with
regard prosecution the witness would have been the witness had asserted the
privilege against self-incrimination. Id. 683-84.
Three types immunity are possible. Use immunity protects against the future
use the witness compelled testimony criminal prosecution the witness; use and
derivative use immunity prohibit the use the witness testimony uncover other
evidence for use against the witness; and transactional immunity bars any future
prosecution the witness for offenses based the compelled testimony. Criminal
-3-
Investigation No. 1-162, 307 Md. 684. Use immunity alone not broad enough
defeat the privilege, the danger remains that the compelled testimony might used
indirectly derivatively place the witness more incriminated posture than before
such testimony. Id. 684. withstand constitutional challenge, immunity statute
must provide either use and derivative use immunity transactional immunity. Id. Any
statutory immunity afforded witness one state also binds other states and the federal
government. Murphy Waterfront Comm 378 U.S. 52, (1964). addition, any subsequent prosecution the witness, the government has the
burden demonstrating that its evidence derived from source wholly independent
the compelled testimony. Criminal Investigation No. 1-162, 307 Md. 684, n.4;
Kastigar, 406 U.S. 460.
This burden has been described heavy, not
insurmountable.4 Kastigar, 406 U.S. 461; Graves United States, 472 A.2d 395,
405 (D.C. 1984).
The statutory immunity issue Officer Porters case Section 9-123
Marylands Courts and Judicial Proceedings Article. provides, pertinent part, that testimony other information compelled under the order, and
information directly indirectly derived from the testimony other
information, may used against the witness any criminal case, except prosecution for perjury, obstruction justice, otherwise failing
comply with the order.
MD. CODE ANN., CTS. JUD. PROC. 9-123(b)(2). Judicial Watch has found reported
Maryland case applying this provision directly, but the language the statute, enacted
If, appears, the State intent re-trying Officer Porter, will have satisfy
this heavy burden.
-4-
1989, mirrors that the federal immunity statute which appears have been
modeled. See U.S.C. 6002. Kastigar, the U.S. Supreme Court determined that
the federal immunity statute granted both use and derivative use immunity, and,
consequently, was coextensive with the protections the Fifth Amendment privilege.
Kastigar, 406 U.S. 452-53.
Assuming there are material differences between
Section 9-123 and the federal statute, the Court should find that the Maryland statute also
extends both use and derivative use immunity and, accordingly, coextensive with the
protections the Fifth Amendment privilege.
Given the unique circumstances Officer Porters case; however, further analysis required. Both Section 9-123 and the federal statute contain exception for perjuryrelated prosecutions. Both statutes are silent about whether this exception forward
looking, backward looking, both.
With respect Officer Porter, this silence
important because Officer Porter already testified the same subject matter the events
surrounding Mr. Grays death which the State now seeks compel him testify.
Moreover, the record clear that the State repeatedly accused Officer Porter lying
under oath his earlier trial, essentially alleging that Officer Porter perjured himself.
applied Officer Porter, the Court must decide whether the immunity provided
Section 9-123 prospective, retrospective, both, has more than reasonable cause testimony other information compelled under the order (or any information
directly indirectly derived from such testimony other information) may used
against the witness any criminal case, except prosecution for perjury, giving false
statement, otherwise failing comply with the order. U.S.C. 6002.
Maryland law makes clear that waiver exists under these circumstances. Choi
State, 316 Md. 529, 545 (1989).
-5- fear that the State may seek charge him with perjury based his testimony his
earlier trial. Choi, 316 Md. 536-37 (quoting Hoffman United States, 341 U.S. 479,
486 (1951) witness entitled invoke the privilege against self-incrimination the
witness has reasonable cause apprehend danger from direct answer.)). the
exception applies retrospectively, the State would not substantially the same
position Officer Porter had asserted the privilege against self-incrimination.
Criminal Investigation No. 1-162, 307 Md. 683-84. would allowed use make
derivative use Officer Porters immunized testimony prosecute him for perjury
based his testimony his first trial. Such result would inconsistent with the Fifth
Amendment. reported Maryland case applying Section 9-123 appears have addressed this
issue either, but federal cases applying the federal immunity statute have done so.
Federal cases make clear that the federal immunity statutes perjury exception refers
future perjury, future false statements future failure comply with the immunity
order, rather than previous acts. United States Watkins, 505 .2d 545, 546 (7th Cir.
1974). [T]he testimony remains inadmissible all prosecutions for offenses committed
prior the grant immunity that would have permitted the witness invoke his Fifth
Amendment privilege absent the grant. United States Apfelbaum, 445 U.S. 115, 128
(1980). The Court should conclude that, least applied Officer Porter, Section 9123 exception for perjury-related charges applies only prospectively any compelled,
immunized testimony, not retrospectively any past testimony. The Fifth Amendment
prohibits the State from making any use derivative use compelled, immunized
-6-
testimony any perjury charge against Officer Porter arising from his testimony his
first trial.
The umque circumstances Officer Porters case also give nse another
uncharted issue regarding any compelled, immunized testimony.
The Sixth
Amendment the U.S. Constitution guarantees criminal defendant fair opportunity
present whatever defense believes might sway the jury his favor. Chambers
Mississippi, 410 U.S. 284, 294 (1973). Fundamental any defense accuseds
right present his own version the events his own words. Rock Arkansas, 483
U.S. 44, (1987). defendants opportunity conduct his own defense calling
witnesses incomplete may not present himself witness. Id.
Officer Porter still faces charges directly related the subject-matter the
compelled, immunized testimony the State seeks. The State has made clear that intends retry Officer Porter and has set June 2016 date for the retrial. Regardless whether
Officer Porter intends testify his retrial, plainly has the right so. Rock, 483
U.S. 52. Not only has the State repeatedly and forcefully accused Officer Porter
perjury, but the more sworn testimony Officer Porter provides the same subject matter voluntarily under compulsion the more opportunity the State has cherry pick
allegedly false inconsistent statements use bringing perjury charge against
him. See Pillsbury Co. Conboy, 459 U.S. 248, 256 (1983) (Each new statement
witness] creates new source.). Forcing Officer Porter testify even under grant
use derivative use immunity pursuant Section 9-123 presents Officer Porter with
dilemma: provide the compelled, immunized testimony potentially opening the door
-7-
perjury charges from that testimony refrain from testifying his own defense his
retrial.
Given Section 9-123 exception for prospective use compelled, immunized
testimony, only silence can preserve both Officer Porters Fifth and Sixth Amendment
rights.7 Compelling Officer Porter testify will have significant, adverse chilling
effect the exercise his right testify his own defense his re-trial. already
has responded official inquiries and testified about his knowledge the facts and
circumstances surrounding Mr. Grays death. also has already been accused the
State lying under oath his first trial. Yet Officer Porter must still defend himself
again against the States criminal charges. Pillsbury Co., 459 U.S. 256. Officer
Porter compelled testify, will faced with the untenable choice deciding
whether take the stand his retrial and risk having his compelled, immunized
testimony used against him later perjury charge foregoing his Sixth Amendment
right testify his own defense. Officer Porter has more than reasonable cause fear perjury charge arising from any compelled, immunized testimony given that the State
has already accused him lying under oath the same subject matter the testimony seeks compel from him. Choi, 316 Md. 536-37.
The dilemma which the State will have placed Officer Porter impermissibly
chills Officer Porters constitutional right testify his own behalf. See People
DeFreitas, 140 Cal. App. 835, 839 (Cal. Ct. App. 1983) (noting the chilling effect
Transactional immunity would preserve Officer Porters rights, but transactional
immunity not available under Section 9-123.
-8-
compelled, immunized testimony the constitutional right testify ones own
behalf). Officer Porter certainly would not substantially the same position
had not been compelled testify. Criminal Investigation No. 1-162, 308 Md.
683-84; Kastigar, 406 U.S. 462 (witness also must left substantially the same
position); Murphy, 378 U.S. (same). Under the unique circumstances presented
this case, the State cannot accuse Officer Porter perjury, compel him testify against
his fellow officers, and seek retry him without violating his Fifth and Sixth
Amendment rights.
CONCLUSION
For the foregoing reasons, the trial courts January 2016 order compelling
Officer Porter testify under immunity granted pursuant Section 9-123 should
vacated.
Dated: February 2016
Respectfully submitted,
Attorneys for Judicial Watch, Inc.
-9-
CERTIFICATE WORD COUNT AND COMPLIANCE
WITH RULE 8-112
This brief contains 719 words, excluding parts the brief exempted from
the word count Rule 8-503.
This brief complies with the font, spacmg, and type face requirements
stated Rule 8-112.
Specifically, the brief has been prepared 13-point,
proportionally spaced Times New Roman font with 2.0 spacing between lines.
Mt-~
PaulJ.OrfiiedeS
CERTIFICATE SERVICE hereby certify that February 2016, caused true and correct copy the
foregoing BRIEF JUDICIAL WATCH, INC. AMICUS CURIAE FOR
APPELLANT WILLIAM PORTER served, via first class U.S mail, postage
prepaid, the following:
Brian Frosh, Attorney General Maryland
Carrie Williams, Assistant Attorney General
Office the Attorney General, Criminal Appeals Division
200 Saint Paul Place
Baltimore, 21202
Michael Schatzow, Chief Deputy States Attorney
Office the States Attorney for Baltimore City
120 East Baltimore Street
Baltimore, 21202
Gary Proctor
The Law Office Gary Proctor, LLC East Mulberry Street
Baltimore, 21202
Joseph Murtha
Murtha, Psoras Lanasa LLC
1301 York Road, Suite 200
Lutherville, 21093
Andrew Jay Graham
AmyE.Askew
Justin Redd
Kramon Graham, P.A.
One South Street, Suite 2600
Baltimore, 21202
Matthew Fraling, III
Harris Jones Malone, LLC
2423 Maryland Avenue, Suite 1100
Baltimore, 21218
01~1~
Paul Orfliedes