The next trial in the death of Freddie Gray is moving forward with a hearing scheduled for Friday, even as the state's highest court continues to weigh whether to intervene.
Defense attorneys for Officer Edward M. Nero, whose trial is scheduled to begin Monday, and other Baltimore police officers charged in the Gray case asked the Court of Appeals on Tuesday to reject a prosecution request to halt all proceedings.
The Baltimore state's attorney's office has requested a delay while the high court reviews its request to compel Officer William G. Porter, the first officer to be tried in the Gray case, to testify against the other five officers. The prosecutors' request was rebuffed by Circuit Judge Barry G. Williams, who said the move appeared to be a stall tactic. The state's attorney's office had said previously that it only considered Porter a witness in two other trials.
In its request to the Court of Appeals, the state's attorney's office argued that Williams had overstepped his authority. If the appellate court agrees to consider the request, it could delay the trials against the officers for months.
Attorneys for the officers wrote Tuesday that the state's appeal is "not permitted by law."
"The state continues its pattern of deception, pretext and subterfuge in an attempt to end-run the Circuit Court's order and try the cases in the order in which it desires," they wrote.
Porter went to trial first in December, and jurors deadlocked on manslaughter and other charges, resulting in a mistrial. With Porter facing a retrial, he was ordered by Williams to testify at the trials of Officer Caesar R. Goodson Jr. and Sgt. Alicia D. White. Porter appealed to the Court of Special Appeals, which took up the case and suspended Goodson and White's trials in the meantime.
That moved up the trials of Nero, Officer Garrett E. Miller and Lt. Brian W. Rice. Prosecutors then informed Williams that they now consider Porter a material witness in those cases as well. Had Williams granted the request, it would have also tied up those cases in the appellate court as Porter fought the order.
After Williams rejected the request to compel Porter's testimony — he referred to it as "subterfuge" in a recent order — prosecutors asked the Court of Appeals to take up the matter.
It is unclear when the Court of Appeals will decide whether to hear the state's request.
Defense attorneys contend that prosecutors cannot appeal decisions while the cases are in progress. They say the state can appeal only once the case has concluded, or after "final judgment."
"To be sure, the State has created the problems of which it complains by the failure to address this issue well before trial and for employing subterfuge to control the trial court docket," defense attorneys argued. "These problems are clearly self-inflicted and the State is simply distressed because the trial court is not bailing the State out of the boat that the State itself put a hole in."
The defense attorneys accused the state of "burdening three levels of the judiciary in a frivolous appeal."
The state wrote that the court's attempt to limit the prosecution's authority to call whom it wants "impermissibly undermined" its cases, violates Maryland's separation of powers, and "threatens to impede criminal prosecutions and investigations throughout the state."
Gray, 25, suffered a severe spinal cord injury in police custody in April and died a week later. Six officers were charged May 1 and indicted by a grand jury the next month. All have pleaded not guilty.
Nero has pleaded not guilty to second-degree assault, misconduct in office and reckless endangerment in his role in Gray's arrest and placement in the back of a police transport van without a seat belt.
Among the motions that could be taken up Friday, Nero's attorneys have asked the court to dismiss the second-degree assault charge against the officer, contending that prosecutors have failed to outline actions that constitute the crime.
They have also asked the court to block prosecutors from mentioning aspects of their theory, including an alleged lack of probable cause for arresting Gray, and from using key evidence in the case, including citizen video of the arrest and the knife found on Gray.
Prosecutors also have filed several motions, including one that asks the court to block the defense from referencing certain information about Gray's past — including his previous arrest record and prior interactions with law enforcement — that they argue is irrelevant to the case against Nero.