Appeal by prosecutors could further delay city officers' trials

Prosecutors to appeal judge's decision not to force Porter to stand in trials of three other officers

The trial schedule for the Baltimore police officers charged in the arrest and death of Freddie Gray — already thrown off course by a legal appeal — could be delayed months more.

Prosecutors gave notice this week that they intend to file an appeal in an attempt to force Officer William G. Porter to testify in the trials of three of his fellow officers. Officer Edward M. Nero's trial is scheduled for Feb. 22, and Officer Garrett E. Miller and Lt. Brian W. Rice are both supposed to be tried in March.

If the matter is taken up by the Court of Special Appeals, it could delay the trials significantly, according to appellate experts. The court would have to allow time for each side to file briefs before hearing oral arguments, and then could take months to reach a decision.

The trial schedule was already thrown off last month, when the Court of Special Appeals intervened in the trials of two other officers — Officer Caesar R. Goodson Jr. and Sgt. Alicia D. White. Porter's attorneys had appealed a decision by Circuit Judge Barry G. Williams to force Porter to testify in those trials. The higher court is set to hear arguments in Porter's appeal in March and could take months to decide, experts have said.

This time, the prosecution is appealing a contrasting decision by the judge last month, in which Williams refused to force Porter to testify in the coming trials of Nero, Miller and Rice.

The state filed notice of its intention to appeal in Baltimore Circuit Court on Thursday.

Williams rejected a request Jan. 20 by the prosecutors to call Porter to the witness stand in the trials of Nero, Miller and Rice. In doing so, Williams questioned prosecutors' motives, saying they appeared to have a "dual purpose" for making the late request — one being to stall the trials.

Gray, 25, suffered a severe spinal cord injury in police custody in April. The six officers were charged May 1 and indicted by a grand jury the next month. All have pleaded not guilty.

Prosecutors in the office of Baltimore State's Attorney Marilyn J. Mosby had identified Porter early on as a "material witness" in the trials of Goodson and White, a claim that had helped shape Williams' decision to sever all six trials and hold Porter's trial first, followed by the trials of Goodson and White.

Porter's trial in December on charges of involuntary manslaughter, second-degree assault, reckless endangerment and misconduct in office ended in a mistrial after the jury could not reach a consensus on any of the charges. Porter has been scheduled to be retried in June.

After Porter's mistrial, his attorneys argued that he could not be required to testify against Goodson and White with his own charges still pending, citing his right against self-incrimination. However, Williams agreed with prosecutors that Porter's rights could be protected if the court provided him with a form of limited immunity barring prosecutors from using anything Porter said during his testimony against him at his own retrial. Williams granted the prosecution's motion to compel Porter to take the stand in the Goodson and White cases with that immunity.

When the Court of Special Appeals took up Porter's appeal of that decision, and the trials of Goodson and White were postponed, Williams sought to move forward with the trials of Nero, Miller and Rice.

Then, at the Jan. 20 hearing, prosecutors argued that Porter was a witness in those officers' trials as well. Prosecutors said that they had not previously contemplated calling Porter as a witness in those cases but adjusted their strategy after Porter's mistrial.

"We tried to learn something from our experience in trying Officer Porter," Chief Deputy State's Attorney Michael Schatzow told Williams at the time. "We think we have the right to change our mind, and we acknowledge we are changing our mind."

Joseph Murtha, an attorney for Porter, balked at that idea, calling the prosecution's sudden decision to call his client to testify at the Nero, Miller and Rice trials a "disingenuous pretext for the purpose of getting a postponement."

Attorneys for Nero, Miller and Rice spoke only briefly at the hearing, but they argued in filings that the state was attempting to "avoid trying the most factually and legally tenuous cases first."

Williams sided with the defense attorneys, denying the prosecution's requests to compel Porter to the stand in those three officers' trials.

Both prosecutors and defense attorneys are barred by a gag order from discussing the case.

Joseph F. Murphy Jr., a retired Maryland appellate judge, said the state's right of appeal is very limited. "Very, very rare are the occasions in which the appellate court will review a pretrial discovery ruling," Murphy said.

In requesting last month that Porter be compelled to testify, 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. On the stand, Schatzow said, Porter 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.

In denying the prosecution's request, Williams had questioned whether Porter's statements about the other officers' actions were "admissible and relevant," noting Porter said he had turned away from the van to deal with a growing crowd while the other officers handled Gray.

Williams also chastised prosecutors for not concluding earlier that Porter would be a witness at "every single case," a criticism that appeared rooted in the rules of discovery requiring prosecutors to disclose witnesses.

krector@baltsun.com

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