The Maryland attorney general's office is asking the state's highest court to take up competing appeals in the Freddie Gray case, which would freeze all proceedings indefinitely as the next trial date nears.
The agency, representing the Baltimore state's attorney's office, has petitioned the Court of Appeals to bypass the lower-level appeals process and expedite a review regarding questions over whether Officer William G. Porter can be compelled to testify against other officers while still facing his own charges.
Porter was ordered by Circuit Judge Barry G. Williams to testify in two of the officers' cases, and Porter's lawyers have been seeking to overturn the decision. In the three other cases, prosecutors failed to convince Williams that Porter is a necessary witness, and they are seeking to overturn that decision.
The attorney general's office wrote that all five cases should be reviewed "because they provide an appropriate vehicle for this court to consider the application of [the state immunity statute] from all sides."
At issue is whether the state's immunity statute can protect Porter's right against self-incrimination. Attorneys for the state argue Williams applied the immunity statute differently in the two instances now being appealed. They ask the court to resolve the issue "before Maryland's witness immunity scheme fails to function as the legislature intended."
For the state's Court of Appeals to bypass its second-highest court, the Court of Special Appeals, it has to be "an issue of great importance," said retired Court of Appeals Judge Howard S. Chasanow. He said the Fifth Amendment issues surrounding Porter's testimony could meet that standard.
Porter's own trial ended with a hung jury, and he is scheduled to be retried in June. He has sought to block the order to testify in the trials of Officer Caesar R. Goodson Jr. and Sgt. Alicia D. White. His attorneys say only witnesses, not co-defendants, can be granted immunity and be forced to testify. They also say that immunity may not protect Porter from federal prosecution or perjury charges.
Meanwhile, prosecutors were denied in their attempt to compel Porter to testify against Officers Edward M. Nero and Garrett E. Miller and Lt. Brian W. Rice. They had not previously said Porter was considered a witness in those cases, but they reserved the right to change their mind. Williams denied prosecutors' request, suggesting it was a stall tactic.
Both of those appeals are pending before the Court of Special Appeals.
"The lower courts are in need of guidance regarding their proper role when faced with a prosecutor's request" under the immunity statute, attorneys for the state wrote in asking for the high court to step in.
The trials of Goodson and White were put on hold until Porter's issue was resolved in the Court of Special Appeals. Arguments are scheduled for early March.
Nero's trial is still scheduled to begin Feb. 22, and Williams signaled Thursday that the trial would proceed unless the higher court intervenes.
In an order denying prosecutors' request that the trial be stayed pending the appeal, Williams wrote that the prosecution's request to force Porter to the stand in the Nero, Miller and Rice trials was "simply an attempt at subterfuge" aimed at controlling the order in which the officers are tried. He said his job is not to act as a "rubber-stamp for the State's Attorney" when the motives of that office are questionable and not in the public interest.
The attorney general's office declined to comment, citing Williams' gag order in the case.
Chasanow said the Court of Appeals could take up both appeals or just one. Under Chief Judge Mary Ellen Barbera, the court has been ruling on cases within the same term but has been accepting fewer cases, he said. The current term runs through June.
Chasanow said the highest court stepping in and taking the cases now could mean a faster resolution in the end, because any ruling by the Court of Special Appeals would likely be petitioned to the highest court anyway.
Paul Mark Sandler, a local attorney and longtime editor of a guide to appellate practice in Maryland, said the Court of Appeals considers issues "that are significant beyond the dispute between the parties in the case." The application of the state's immunity statute in criminal cases is just that, he said.
"Regardless of how the matter is resolved," he said, "it is one of public interest and importance."