CNN senior legal analyst Jeffrey Toobin has a term for where he thinks the prosecution in the case of Baltimore police Officer William Porter is right now.
“Up a creek,” he said Wednesday, shortly after a judge declared a mistrial in Porter’s case because jurors were unable to reach a unanimous verdict.
Porter is one of six officers charged in connection with the death of Freddie Gray, a young African-American man who suffered a fatal injury while in police custody.
Toobin said he believes the hung jury will benefit the defense — not just in Porter’s case, if he’s retried, but in the cases of the other five officers as well. Prosecutors have not yet said whether they will retry Porter.
“A hung jury is a defeat for the prosecution, especially when they needed Porter to make some of these other cases,” Toobin said.
“Now there are lots of strategic decisions ahead. They may decide to give up on prosecuting Porter, give him immunity and use him as a witness anyway, but that’s obviously not a solution they wanted. All of these issues will have to be debated, and the prosecution here is in serious trouble.”
Porter was picked to go ahead of the other officers, at least in part, because prosecutors wanted to have him as a witness, according to Andrew Alperstein, a Baltimore defense attorney and former prosecutor.
“Their thinking, seemingly, was if he was convicted maybe they could flip him and get him to become a witness for the state. … On the other hand, if he was acquitted, he became what’s called a compellable witness. He could be forced to testify,” Alperstein said.
“This hung jury is, really, I think, a major setback for the state because they have neither option available.”
Sunny Hostin, a former federal prosecutor and current CNN legal analyst, agreed.
“I do think that all those cases will be tried, but this is a problem for the prosecution, because the prosecution wanted to try this officer first so that, in the event of a conviction, they could use his statements against the other officers,” she said.
“In the event of an acquittal, they would have tried to use his statements against the other officers. They didn’t offer him immunity. So now, they are in a situation where they have this charged defendant hanging out there, and they can’t force him to testify against these other officers.”
The other officers and their charges are as follows:
Caesar R. Goodson Jr. is charged with one count of second-degree depraved-heart murder, involuntary manslaughter, second-degree assault, manslaughter by vehicle (gross negligence), manslaughter by vehicle (criminal negligence), misconduct in office and reckless endangerment.
Officer Garrett E. Miller is charged with one count of second-degree assault, two counts of misconduct in office and one count of reckless endangerment.
Officer Edward M. Nero is charged with one count of second-degree assault, two counts of misconduct in office and one count of reckless endangerment.
Lt. Brian W. Rice is charged with one count of involuntary manslaughter, one count of second-degree assault, two counts of misconduct in office and one count of reckless endangerment.
Sgt. Alicia D. White is charged with one count of involuntary manslaughter, second-degree assault, misconduct in office and reckless endangerment.
Hostin also made the point that prosecutors rarely want to retry a hung jury case because the defense now has had access to the whole case.
“Many times you want to send a message to the defense team that you are going to get a conviction. And so the fact that they were unable to secure a conviction does have an impact on all of the other cases,” she said. “I think this is a gamble that was taken by the prosecution.”
Bill Murphy, an attorney for the Gray family, said the hung jury doesn’t mean Porter’s case is over.
Nor does it mean, in his opinion, that one side has an inherent advantage or disadvantage moving forward.
“I don’t buy the nonsense that this is somehow a victory for either side. It’s not,” Murphy told reporters. “It’s just a bump on the road to justice, and you know, the road to justice has lot of bumps.”
