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Prosecutors say judge overstepped authority in denying Porter testimony, should stay officers' trials pending appeal

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)

Prosecutors say Circuit Judge Barry G. Williams overstepped his authority in refusing their request that he force Baltimore Police Officer William G. Porter to testify at the trials of three of his fellow officers in the arrest and death of Freddie Gray, and have asked him to delay those trials pending their appeal of his decision to a higher court.

The prosecutors argue Williams improperly took it upon himself to decide whether it would be in the "public interest" to compel Porter to testify under a limited form of immunity in the trials of Officer Edward M. Nero — set to begin Feb. 22 — and Officer Garrett E. Miller and Lt. Brian W. Rice, scheduled for early March.

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Williams had questioned prosecutors' motives in wanting Porter to testify in those trials, suggesting they were using the request as a way to to delay them. He also questioned the relevance of Porter's testimony in those trials.

But, prosecutors said, Baltimore State's Attorney Marilyn J. Mosby has the "sole power" to decide whether immunity for Porter would serve the public interest.

Despite Williams' "good intentions in seeking to avoid delay of the Defendant's trial," his decision to deny the request "ran contrary" to the law in Maryland, they said

Prosecutors announced their intent to appeal Williams' decision to the higher court last week. Their motions asking Williams to stay the trials outline for the first time the arguments they will likely make in their appeal to the higher court.

A court docket showed that attorneys for Nero, Miller and Rice all had filed responses to the state's motions, but those filings were not available in the case files at the clerk's office on Monday. They also were not posted to the website that the judiciary created to post documents online, and a court spokeswoman said she did not have access to the documents.

The officers' attorneys and prosecutors are barred by a gag order from discussing the case.

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.

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, the prosecutors argued in their new filings.

In requesting last month that Porter be compelled to testify, Chief Deputy State's Attorney Michael Schatzow said Porter's testimony would help the state prove reckless endangerment charges against Nero and Miller and manslaughter and assault charges against Rice.

In a statement to investigators, Porter described arriving at the scene as Gray was being put into a police van. Schatzow said Porter's testimony on the stand about what happened at the scene could help the state show Gray was not secured in a seat belt and establish a timeline for when Gray was injured, helping jurors understand the officers' culpability.

The prosecutors' new requests to delay the trials, filed in motions in the Circuit Court in Baltimore, are required before they can ask the Court of Special Appeals — where they have appealed Williams' decision regarding Porter's testimony — for an injunction to block the trials from proceeding pending a higher court decision on the Porter issue.

That appeal has not yet been made public, and it was unclear Monday whether it had been filed yet. A court spokeswoman said she had not been notified of any appeal filings as of Monday afternoon.

If the Court of Special Appeals does take up their appeal, the trials could be delayed for months.

Already, the trials of two other officers — Officer Caesar R. Goodson Jr. and Sgt. Alicia D. White — are stalled behind a separate appeal filed in the Court of Special Appeals by Porter's attorneys, challenging a separate decision by Williams to force Porter to testify in those trials.

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Prosecutors said early on that Porter was a "material witness" in the Goodson and White trials, and Williams ruled that the limited immunity given to Porter — preventing prosecutors from using his testimony at his own retrial in the case — would protect his rights against self-incrimination.

Porter's first trial ended in December in a mistrial, after the 12-member jury failed to reach a consensus on any of the four charges against him. He is set to be retried in June.

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