Prosecutors in Freddie Gray case move to compel another police officer to testify

After appeals court victory, prosecutors in Freddie Gray case move to compel another police officer to testify

Prosecutors are moving to compel another police officer charged in the death of Freddie Gray to testify against a fellow officer.

The Baltimore state's attorney's office filed a motion last week, made available Monday, seeking to order Officer Garrett E. Miller to testify at the trial of Officer Edward M. Nero. Both officers were involved in Gray's initial arrest and have pleaded not guilty to charges of second-degree assault, reckless endangerment and two counts of misconduct.

Nero's trial is scheduled to begin May 10. Miller's trial is scheduled for July.

The motion comes after months of legal wrangling over prosecutors' efforts to force Officer William G. Porter to testify under limited immunity against five fellow officers with his own charges still pending. Porter appealed, and the state's highest court ruled March 8 that Porter had to testify.

Prosecutors had not previously said that they planned to call any of the other officers to testify in the cases, but defense attorneys had said forcing Porter to testify would open the door to such a scenario.

Prosecutors and defense attorneys are barred by a gag order from discussing the case with anyone outside their legal teams.

There haven't been any prior cases in Maryland where defendants with pending charges were compelled to testify against their co-defendants. If Baltimore Circuit Judge Barry Williams grants the prosecution's latest motion, Nero's trial would feature both Porter and Miller as witnesses.

Miller and Nero were on bike patrol last April 12 in Gilmor Homes when they said Gray, 25, ran unprovoked. The officers chased and detained Gray, and arrested him after police said they found a switchblade knife clipped to his belt.

Authorities say Gray died of injuries suffered after being placed — shackled but not in a seat belt — in the back of a police van. Prosecutors said police lacked probable cause to arrest Gray and showed a reckless disregard in their treatment of him; they charged six officers in connection with Gray's arrest and death.

Nero will be the first of the officers to go to trial since Porter's December trial ended with a hung jury. Competing appeals from Porter and the prosecution reached Maryland's Court of Appeals, with judges siding with prosecutors that Porter could be called as a witness in the other officers' trials.

A full written opinion from the court has not yet been released.

Porter's attorney had argued that his client could still be subject to perjury charges, and that immunity would not protect him from a possible federal prosecution. Prosecutors argued that Porter's Fifth Amendment right against self-incrimination would not be violated by requiring him to testify under a grant of limited immunity.

Attorneys for Officer Caesar R. Goodson Jr., who drove the arrest van, argued in the state's lower appeals court that forcing Porter to testify could lead to their client, who never gave a statement to investigators, being ordered to take the stand in the trials of his fellow officers.

"In fact, every single defendant involved in the April 12, 2015, arrest and transport of Mr. Gray could be compelled to testify in the case of Officer Porter (or any other defendant) under the state's theory," Goodson's attorneys wrote. And that outcome, the attorneys wrote, "completely eviscerates the purpose of their constitutional protections."

Calling Porter and Miller as witnesses is not without consequence for prosecutors. Before their cases, the court must hold what is called a "Kastigar hearing," a proceeding before trial in which the burden would be on prosecutors to prove that they had not improperly used anything from the officers' testimony in preparation for their own trials.

It could also require a "taint team," or a panel of attorneys who would be brought in to assist in ensuring that prosecutors have not been tainted by hearing the officers' testimony. Assistant Attorney General Carrie Williams, who argued for prosecutors in the appeals court, said it was "uncharted territory," which spoke "volumes about the burden the state faces" by calling the officers as witnesses.

Doug Colbert, a University of Maryland law professor who has been following the cases, said the decision by prosecutors to seek a court order compelling Miller's testimony makes sense strategically because they need someone to walk the jury through Gray's arrest and know the officers aren't going to do so willingly.

"If I'm a prosecutor and I've got three officers involved in the first part — the chase, the apprehension and the arrest of Freddie Gray — I know that the police code of silence will prevent any of the officers from testifying against the others," Colbert said. "The only way to make sure that evidence gets presented is granting immunity and allowing one officer to tell the story."

Forcing Miller to do so also presents risks, Colbert said, and would have been a decision prosecutors weighed carefully, including by referring back to Miller's initial statement to police investigators to gauge his potential value to the prosecution.

"The calculus here, the decision, is based on how much evidence Officer Miller will present that implicates Officer Nero," Colbert said.

Baltimore Sun reporter Kevin Rector contributed to this article.

jfenton@baltsun.com

Trial dates

•Officer Edward M. Nero: May 10

•Officer Caesar R. Goodson Jr.: June 6

•Lt. Brian W. Rice: July 5

•Officer Garrett E. Miller: July 27

•Officer William G. Porter: Sept. 6

•Sgt. Alicia D. White: Oct. 13

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