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Before next trial in Freddie Gray case, prosecutors face legal 'minefield' over immunized testimony

Prosecutors face legal 'minefield' over immunized testimony in next trial in Freddie Gray case

Before the next Baltimore police officer stands trial in the arrest and death of Freddie Gray, prosecutors will face a barrage of legal questions about whether they gleaned any evidence or strategic advantage from his forced testimony in the trial of another officer in May.

One state high court judge called the process a legal "minefield." An assistant attorney general representing the prosecution said it could present a "banquet of consequences" for them.

Officer Garrett Miller, 27, was compelled against his will to testify in the trial of Officer Edward Nero under a limited form of immunity that prevents prosecutors from using anything he said on the stand against him at his own trial.

Miller's trial is scheduled to begin Wednesday. Before it starts, Baltimore Circuit Judge Barry G. Williams is expected to hold a hearing to determine whether prosecutors took the proper steps to ensure the terms of that immunity agreement — designed to protect Miller's constitutional right against self-incrimination — have not been violated.

Prosecutors and defense attorneys have filed written motions about that so-called Kastigar hearing, and Williams is expected to hear arguments on those and other pretrial motions Wednesday morning.

It remains unclear how long the hearing will take and whether it will significantly delay the start of the trial itself. Never in Maryland has a defendant gone to trial after having been compelled to testify against a co-defendant.

What is clear is that the hearing will mark a significant turning point in the prosecution of the six officers charged in Gray's arrest and death.

The need for the prosecution in Miller's case to be completely unswayed by his testimony in Nero's trial led the state to introduce a "clean team" of fresh prosecutors who were "instructed not to watch any news coverage of any trials involving the testimony of Officer Miller, not to discuss the testimony of Officer Miller and to take precautions to ensure that they would not be exposed to Officer Miller's immunized testimony."

That means that for the first time in the Gray case, senior prosecutors Chief Deputy State's Attorney Michael Schatzow and Deputy State's Attorney Janice Bledsoe will not lead the prosecution. Instead, Assistant State's Attorney Lisa Phelps, a veteran of the city state's attorney's office, and Sarah David, who joined the office in 2014, will assume the duty of seeking a conviction. Schatzow and Bledsoe, their superiors, have come up empty in four previous trials.

Gray, 25, died last year after suffering severe spinal cord injuries in police custody. His death initially inspired widespread, peaceful protests against police brutality, but on the day of his funeral, the city erupted in riots, looting and arson. Within days, Baltimore State's Attorney Marilyn J. Mosby charged six officers in his arrest and death.

All pleaded not guilty. The first trial, of Officer William Porter, ended in a mistrial after a 12-member jury failed to reach a consensus on any of the charges. Then Williams acquitted three officers — Nero, Officer Caesar Goodson Jr. and Lt. Brian Rice — in bench trials in May, June and July, respectively.

Miller, 27, is the fifth officer to face trial. He is charged with second-degree assault, reckless endangerment and two counts of misconduct in office.

The assault and one of the misconduct charges are associated with the prosecution's claim that Miller arrested Gray without probable cause. The prosecution says Miller stopped, handcuffed and moved Gray from one location to another before finding the knife that would be cited as the reason for his arrest.

The defense has said Miller's actions were consistent with established case law around police stops of suspects in high-crime areas such as the West Baltimore neighborhood where Gray was detained.

During Miller's testimony in Nero's trial — barred from being used in his trial — he said he was the officer who detained Gray.

"Did there come a time when you and [Nero] apprehended Mr. Gray?" Schatzow asked him.

"I did, sir," Miller responded.

Schatzow challenged Miller by pointing out that in his statement to police investigators, he suggested he and Nero had arrested Gray together. But on the witness stand, Miller was adamant that he alone stopped Gray.

It remains to be seen whether Miller will take the stand in his own trial. Prosecutors are expected to enter his statement to police into evidence.

The reckless endangerment and the second misconduct charge against Miller relate to his failure to secure Gray in the van with a seat belt.

Witnesses in the trials of Rice and Nero have testified that it was Nero and Officer Zachary Novak — not Miller — who loaded Gray into the van at the initial stop. Novak received immunity in order to testify before the grand jury that indicted the other officers.

Witnesses have also said that Nero and Rice, not Miller, loaded Gray into the van on his stomach, in shackles and handcuffs, at the van's second stop.

Williams cleared Nero and Rice of reckless endangerment and misconduct at their trials.

Two other officers — Porter and Sgt. Alicia White — still face charges. Porter is scheduled to be retried in September. White is scheduled to be tried in October.

Mosby has faced criticism from the moment she announced the charges. The police union accused her of a "rush to judgment;" others say prosecutors have proceeded to trial without establishing a clear path to conviction.

Part of the challenge for prosecutors, apparent in each of the trials to date, has been establishing a narrative of events surrounding Gray's chase, arrest, and 45-minute van ride around West Baltimore before he was pulled from the vehicle unconscious and foaming at the mouth.

In part to address that challenge, prosecutors asked Williams months ago to allow them to compel Porter — who was present at multiple stops of the van — to testify in the trials of his fellow officers.

Williams granted that request in some of the trials but denied it in others. The state appealed, and the issue eventually made its way to the state's highest court.

The Court of Appeals ruled that the limited immunity offered by the state was sufficient to protect Porter's right against self-incrimination, and that he could be compelled to testify. But it also warned prosecutors that compelling the officer's testimony would impose on them the "heavy burden" of proving their subsequent case against him was "derived wholly independently" from that testimony.

The judges said prosecutors would have to "erect sufficient safeguards" to ensure that independence, including by possibly bringing in prosecutors who had not heard the testimony.

The caveats were consistent with comments made at a hearing on the matter before the court months before, where Judge Lynne A. Battaglia warned that compelling an officer's testimony before his own trial could introduce a "minefield" of problems.

Assistant Attorney General Carrie Williams, representing Mosby's office, agreed, saying that the fact that the issue was "uncharted territory speaks volumes about the burden the state faces."

She also paraphrased Robert Louis Stevenson: "Sooner or later, we must all sit down for a banquet of consequences."

Since the high court's ruling, Porter and Miller both have been called to provide immunized testimony in their fellow officers' trials. Miller's trial is the first to present prosecutors with the challenge of proving that their new team is sufficiently blind to that testimony.

Phelps, who has been with the state's attorney's office since 1999, now leads its training division. She was previously chief of the special victims unit and a supervisor in the felony unit. David is listed as a prosecutor in the misdemeanor unit. Ridgway Mills, a law clerk, has also been assigned to the clean team.

In addition to the new team, the prosecution said it also created a "filter team" — led by Assistant State's Attorney Kristin Blumer — which "screened evidence reviewed by the clean team; interviewed witnesses before they interviewed with the clean team; reviewed motions before providing those motions to the clean team; spoke to defense counsel on behalf of the clean team; as well as various other tasks to ensure that the members of the clean team were not exposed to immunized testimony."

How those teams functioned will be a central question in the hearing before Miller's trial.

In a written motion formally calling for the hearing, defense attorney Catherine Flynn alleged that there were flaws in the system. "[D]espite the assignment of a new prosecution team," she wrote, it was her understanding that "Mr. Schatzow and Ms. Bledsoe continue to direct the prosecution of Officer Miller."

In order to "properly determine the direct or indirect use of the immunized statements" Miller made at Nero's trial, Flynn argued, "it will be necessary for the State to disclose every step taken during the preparation of the prosecution's case."

She said "each prosecutor involved in the investigation, preparation and prosecution of Officer Miller's case should be required to testify."

She also argued that a prosecutor from outside the state's attorney's office should represent the prosecution at the hearing.

Prosecutors, in response, said the only evidence the court should consider at the hearing "would be the State's investigatory steps and preparation after it elicited immunized testimony" from Miller.

They also said the defense cited "no authority" for the request that an outside prosecutor be called in to represent the state, and provided "no basis" for having each prosecutor involved in the case testify.

Prosecutors requested a conference with the defense and the judge to discuss the "specific allegations" of the defense and the "preferred method" for the state to present evidence that its clean team has not been tainted.

krector@baltsun.com

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