Defense says state request to delay officers' trials based on 'subterfuge,' not law

Baltimore Police officers charged in the Freddie Gray case are, top row from left, Caeser R. Goodson Jr., Sgt. Alicia White, Officer Garrett E. Miller.; bottom row from left, Lt. Brian W. Rice, Officer William G. Porter, Officer Edward M. Nero.
Baltimore Police officers charged in the Freddie Gray case are, top row from left, Caeser R. Goodson Jr., Sgt. Alicia White, Officer Garrett E. Miller.; bottom row from left, Lt. Brian W. Rice, Officer William G. Porter, Officer Edward M. Nero. (Baltimore Police / Baltimore Sun)

Three Baltimore police officers want their trials in the arrest and death of Freddie Gray to proceed as scheduled, and have asked two separate courts to dismiss as prosecutorial trickery the state's recent attempts to stall them.

Prosecutors last week asked Circuit Judge Barry G. Williams to issue a stay in the three trials, pending an appeal in the Court of Special Appeals in which they are asking the higher court to reverse a decision by Williams not to compel another officer, William G. Porter, to testify against the officers.


Attorneys for Officers Edward M. Nero and Garrett E. Miller and Lt. Brian W. Rice, however, said in new motions made available Tuesday that the state had no legal right to appeal Williams' decision, and that the appeal is simply "another transparent subterfuge" by prosecutors to regain control over the trial order of the six officers charged in the Gray case.

The state's only purpose for the appeal, the officers' attorneys wrote, is to "avoid trying the most legally and factually tenuous cases next."


Nero's trial is scheduled to begin on Feb. 22. Miller's trial is scheduled for March 7, and Rice's trial is scheduled for April 13.

The defense attorneys struck a similar tone in motions filed before the Court of Special Appeals and attached to the Circuit Court filings as exhibits. In those filings, the officers' attorneys requested the higher court dismiss the prosecution's appeal outright, arguing that Williams' pre-trial decision regarding Porter's testimony cannot be challenged by prosecutors under state law and that the appeal is "a veiled attempt to obtain a postponement which the State has been unable to obtain despite their continuous efforts."

Gray, 25, died in April from fatal neck injuries suffered while in police custody. Six Baltimore police officers have been charged in his arrest and death. All have pleaded not guilty.

The six officers' trials were initially scheduled to occur in rapid succession between December and March. Porter was scheduled to be tried first, followed by Officer Caesar R. Goodson Jr. and Sgt. Alicia D. White, in part because the state early on had identified Porter as a material witness against Goodson and White. Prosecutors had hoped an early conviction against Porter would clear the way for him to take the stand against the other two officers.

Instead, Porter's trial in December ended in a mistrial after a 12-member jury failed to reach a consensus on any of the four charges against him, and he was scheduled to be retried in June. Porter's attorneys immediately argued that he could not serve as a witness in Goodson and White's trials prior to his own retrial in June without his rights being violated, including his right against self-incrimination.

After Williams ruled that Porter could testify in those cases under a limited form of immunity that bars prosecutors from using anything he says on the stand against him at his retrial, Porter's attorneys appealed the decision to the Court of Special Appeals. The higher court took up the case, and the Goodson and White cases were put on hold pending the higher court's decision.

Williams then sought to move forward with the trials of Nero, Miller and Rice, but the issue of Porter's testimony again arose.

On Jan. 13, prosecutors filed motions announcing for the first time that they also consider Porter a witness against Nero, Miller and Rice, and asked Williams to compel Porter to testify in those trials as well.

On Jan. 20, Williams denied those requests, suggesting prosecutors were seeking to delay the trials and questioning the relevance of Porter's testimony in the cases.

On Feb. 4, prosecutors filed notice that they would appeal Williams' ruling to the Court of Special Appeals. On Feb. 5, they requested the stay in Nero, Miller and Rice's trials.

In requesting the stay, prosecutors said Williams overstepped his authority in denying them the right to call witnesses they believe are needed. They also said trying the officers before their pending appeal before the Court of Special Appeals is resolved would "needlessly cause irreparable harm" to their cases against the officers.

Chief Deputy State's Attorney Michael Schatzow has said Porter's testimony would help the state prove reckless endangerment charges against Nero and Miller and manslaughter and assault charges against Rice.


Schatzow has said Porter could tell jurors about what happened at the scene of Gray's arrest, including how Gray was not secured in a seat belt in the back of the police transport van in which prosecutors say he was injured. Porter could also establish a timeline for when Gray was injured, helping jurors understand the officers' culpability, Schatzow said.

Attorneys for Nero, Miller and Rice, in rejecting the state's position, said their clients have the right to a speedy trial, and their trials should proceed as scheduled. They said the Circuit Court should reject the state's motion for a stay and proceed even if the Court of Special Appeals hasn't officially ruled on the merits of the appeal, because the higher court will eventually dismiss the appeal for lacking legal standing.

"The public interest is best served by the process continuing in the ordinary course of criminal litigation," they wrote. "The State has taken an extraordinary step in seeking to appeal in the midst of litigation, a decision that is not supported by the law. The public should be able to trust that each case prosecuted by the State's Attorney will be tried in a speedy and predictable manner, in accordance with the rules and the law."

Both defense attorneys and prosecutors are barred by a gag order from discussing the case.


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