Freddie Gray case: Officer Miller takes stand in Nero trial, state rests

Baltimore police Officer Garrett Miller took the stand Monday as a prosecution witness in the trial of co-defendant Officer Edward Nero, testifying that he alone took Freddie Gray into custody after a chase.

Miller's testimony helped back Nero's contention that he played a minor role in the arrest, which began after a supervisor asked for help chasing the 25-year-old through a West Baltimore public housing development.

Prosecutors are pointing to statements both officers gave to investigators last year in which they described the arrest as a collective action. Miller also testified that he watched Nero load Gray into an arrest van, where Gray would eventually suffer a fatal spine injury.

Never before in Maryland has a defendant been compelled to testify against a co-defendant with his or her own charges pending. Miller was granted immunity that prevents his statements or anything derived from them from being used at his trial, which is scheduled for July.

The prosecution rested its case following Miller's testimony, wrapping up after calling 14 witnesses over 21/2 days.

Nero, 30, has pleaded not guilty to misdemeanor charges of second-degree assault, reckless endangerment and two counts of misconduct. While the assault and first misconduct charge relate to the arrest, the other two charges are based on prosecutors' contention that Nero put Gray at risk when he put him in the arrest van without a seat belt.

Miller, 27, faces the same charges as Nero and has pleaded not guilty.

Nero's defense attorney, Marc Zayon, has said that Nero only touched Gray during the arrest to assist him in finding an inhaler, and has maintained that it wasn't unreasonable for officers not to use a seat belt on Gray.

Miller — who was not interviewed by prosecutors before his testimony — said he and Nero were on bicycle patrol in the Gilmor Homes area on April 12 last year when Lt. Brian Rice radioed that he was engaged in a foot chase nearby.

Miller testified that he never sought to clarify the purpose for the chase. Prosecutors said in opening statements that by not seeking to determine the reason for the pursuit, the officers exceeded any legal authority to detain Gray and committed an assault.

"Did there come a time when you and the defendant apprehended Mr. Gray?" Chief Deputy State's Attorney Michael Schatzow asked Miller.

"I did, sir," Miller responded.

He answered "no" when Schatzow asked if Nero participated in "grabbing" Gray.

On Friday, prosecutors played a video recording of the statement Nero gave to police detectives on the day of Gray's arrest. Schatzow emphasized Nero's language in the interview, in which he said, "Miller and I, we got him in custody."

Neill Franklin, a policing expert for the prosecution, said Nero's description was "consistent with that of a joint arrest," though Zayon suggested Nero was speaking collectively out of habit about actions that were actually taken by Miller alone. Miller, too, said Monday that he liberally used the word "we" in his initial statement to describe what occurred.

After the state rested its case, Zayon asked Circuit Judge Barry Williams, who is deciding Nero's fate instead of a jury, to grant a motion for judgment of acquittal, saying the state's assault case was based on "one misstated pronoun." Schatzow countered that it was about Nero's "own words and statements."

Williams denied the motion, saying the state had met its minimum burden for the case to proceed.

Miller is one of two officers charged in Gray's arrest and death who were compelled to testify at Nero's trial despite their own pending charges. Officer William Porter, whose first trial ended in December with a hung jury, ultimately was not called as a witness.

Legal challenges to prosecutors' ability to call co-defendants as witnesses tied up the cases for months in Maryland's highest court, which in March affirmed prosecutors' argument that Porter could be called to testify at all five co-defendants' cases. Williams would later grant prosecutors' request to compel Miller to testify at Nero's trial.

On Monday, Miller answered Schatzow's questions with mostly short responses. Zayon frequently objected as Schatzow sought to question Miller's truthfulness by reading his statements to police investigators and contrasting them with his testimony. Williams sustained many of the objections, preventing Miller from answering.

"It can't be done this way," Williams told Schatzow, causing prosecutors to huddle at the side of their trial table.

Prosecutors selected a new team of prosecutors last week to handle the trials of Miller and Porter, as the state's attorney's office will have to demonstrate before trying those cases that prosecutors were not influenced by what the officers say on the stand as witnesses.

Warren Alperstein, a defense attorney who is not involved in the case but has been watching the proceedings, said Miller "helped the defense a great deal" with his testimony, making it "abundantly clear" that he arrested Gray, not Nero.

The state was "at a disadvantage" in calling Miller because it wasn't able to interview him before compelling him to take the stand with the court's backing, Alperstein said.

Warren Brown, another defense attorney watching the proceedings, said Miller's testimony "really put a human face on what went on" during Gray's stop and arrest.

"What you got from it was a real sense of what was going on out there," Brown said. "A chase is announced, so they joined in the chase. That's what they're supposed to do. It's absurd that you're going to criminalize their good-faith behavior."

Brown said it was amazing to watch Miller testify, rare as it was.

"We're seeing things we've never seen before: defendants in the midst of criminal charges pending against them being called to testify against the co-defendant," Brown said. "And the prosecution arguing that the police didn't have probable cause? That's usually something the defense argues."

Brown noted the knife allegedly found on Gray had not been discussed during the trial, but he said it is "irrelevant" to the case if the officers detained Gray in good faith to begin with. In charging Nero and Miller, prosecutors initially made a point that Gray was carrying a legal knife but have since changed the theory of their case.

Miller testified that after Gray was caught, he put his hands up and was never combative with officers. Arrestees are typically taken to the Western District station to be "debriefed" about crime in the area, but Miller, Nero and Rice reconvened and it was decided that Gray would be taken straight to Central Booking, he said.

Miller said he called for the van driver to stop, and Miller removed his handcuffs from Gray and replaced them with plastic cuffs. He said he also added leg shackles, which he was given by the van driver, Officer Caesar Goodson.

He then watched Nero help Rice load Gray into the transport van. Rice was inside the van pulling in Gray's upper body, while Nero assisted with his lower body, he said.

Before Miller, the state called Joseph McGowan, a biomedical engineer, who testified that a seat belt would have prevented Gray's injuries. On cross-examination, McGowan agreed with Zayon's contention that it was the movement of the van that ultimately caused the injury.

The defense's first witness was former Charlottesville, Va., Police Chief Timothy Longo, who testified as a police expert about the responsibilities of officers. Longo also testified at Porter's trial.

jfenton@baltsun.com