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Freddie Gray case shifts to state's highest court Thursday

Court of Appeals will hear arguments on whether Porter can be forced to testify against fellow officers.

Even before any verdicts have been reached, the Freddie Gray case has ended up in the state's highest court, where prosecutors and defense attorneys will spar Thursday.

The central issue facing the Maryland Court of Appeals revolves around the state's immunity statute, and whether Officer William G. Porter, one of six Baltimore police charged in the case, can be forced to testify against his fellow officers.

Porter contends that Circuit Judge Barry G. Williams violated his rights by ordering him to testify in the coming trials of two officers. Williams rejected prosecutors' request to force Porter to testify in the trial of three other co-defendants, and prosecutors want the high court to reverse that decision.

The appeals court agreed to take up the issues, halting all of the officers' trials pending its rulings.

The Court of Appeals could issue a brief ruling as soon as Thursday afternoon, with a longer opinion to follow. Or it could take months to reach a decision.

The seven judges may ask questions during the hearing in Annapolis. The court allows cameras, and the proceedings are to be streamed online.

Williams' gag order barring prosecutors and defense attorneys from speaking publicly about the cases, in place since October, does not apply to the Court of Appeals proceedings.

Defense attorney Marc Zayon, who represents Officer Edward M. Nero, said he is "exceptionally confident" the high court would dismiss the prosecution's appeal to force Porter to testify in his client's case.

"We don't believe the state had any grounds to appeal, and the whole purpose was to delay Officer Nero and Officer [Garrett E.] Miller's trial."

The Baltimore state's attorney's office declined to comment.

Legal observers not involved in the case said it is rare for the high court to take up all of the issues, and at this juncture. One of the questions the Court of Appeals asked attorneys to address in written briefs was whether the prosecutors' appeal was something that could even be considered by the high court.

"We take the position that this is not an appealable order," said attorney Catherine Flynn, who represents Miller.

Prosecutors contend that the court can take up the issue. They consider Porter a key witness in the trials of Officer Caesar R. Goodson Jr. and Sgt. Alicia White — a reason they tried Porter first among the six officers.

But Porter's trial ended in a mistrial in December after jurors were unable to reach a unanimous verdict on any of the four charges against him. He was scheduled for a retrial in June, and the rest of the cases were to move forward as planned, with Goodson's next.

Williams granted Porter immunity intended to prevent his testimony in the Goodson and White cases from being used against him at his retrial.

Williams and Baltimore prosecutor Michael Schatzow said the move was unprecedented in Maryland in a case involving co-defendants.

Gray, a 25-year-old black man, died last April after suffering a spinal injury in police custody. His death prompted citywide protests against police brutality, and widespread rioting and looting broke out the day of his funeral.

Six police officers involved in Gray's arrest and death face charges that include assault, manslaughter, second-degree murder and misconduct. All have pleaded not guilty.

Porter's attorneys say forcing him to testify against the other officers would violate his Fifth Amendment right against self-incrimination. They contend that Porter, who was called a liar by prosecutors at his trial, could be exposed to perjury charges, and that his immunity would not cover him in the event of a federal prosecution.

They have called giving a defendant unwanted immunity to force him to testify against co-defendants a "foul blow," and say Porter is being "treated as the state's pawn."

"By ignoring the constitutional rights of Porter in order to overcome the lack of evidence in those cases, the state employs a 'win at all costs' strategy," Porter's attorneys wrote. "The law does not support such tactics."

Prosecutors say Porter's "insistence on labeling himself a defendant, and not a witness, misses the point."

"To be sure, in the case of the State of Maryland versus William Porter, Porter is the defendant," they wrote. "But in the other five cases related to the death of Freddie Gray, Porter is a witness."

Prosecutors say they have broad discretion to use immunity. While they must ask a judge to grant the request, they say the language of the statute says the judge "shall" grant it.

That is also a key part of prosecutors' argument that Williams was wrong to deny their request to force Porter to testify in the trials of Nero, Miller and Lt. Brian W. Rice.

Prosecutors had not previously listed Porter as a witness in those cases, and Williams said he believed the late decision by prosecutors was a stalling tactic — since the issue of whether Porter could be forced to testify was already before the Court of Special Appeals.

Williams said the move was "simply an attempt at subterfuge" because prosecutors did not want to try the next three cases first.

Prosecutors say Porter's testimony is relevant to proving one of the elements of reckless endangerment and that their position on his importance to the other cases evolved over time.

"We think we have the right to change our mind," Schatzow told Williams.

Defense attorneys for Nero, Miller and Rice say prosecutors showed an "unfettered lack of restraint" in making the move.

Appeals typically are filed after a case has come to a conclusion or a final judgment in a lower court. Rulings are handed down with which attorneys disagree, such as the exclusion of evidence or the barring of certain arguments, but they must wait until the proceedings are over to file an appeal.

One of the questions the high court has asked is whether Williams' order is an appealable final judgment.

Attorneys for the officers say allowing prosecutors to appeal Williams' ruling would "open the floodgates and cause the operation of the trial courts to come to a halt in criminal matters" as prosecutors take rulings to the appellate courts.

Prosecutors counter that the ruling about Porter's testimony was essentially a civil proceeding that was "collateral" to the criminal case, and was final and can be appealed. They argue alternatively that there are still other ways that allow the court to take up the case.

The Maryland attorney general's office often handles appeals, and Assistant Attorney General Carrie Williams will argue Porter's appeal in the trials of Goodson and White.

But Schatzow, the second-in-command at the Baltimore state's attorney's office, has been designated as a "special" attorney general and will make the argument over the appeal of Williams' decision to prevent Porter from testifying in the trials of Nero, Miller and Rice.

Gary Proctor, Porter's attorney, will argue his appeal. Michael Belsky, one of the attorneys for Rice, will argue against the state's appeal, along with appellate lawyer Thomas Donnelly, who the defense team enlisted for the hearing.

jfenton@baltsun.com

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Watch live

The oral arguments in the Maryland Court of Appeals will be broadcast live Thursday, March 3 at 10 a.m. at bsun.md/livestream.

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