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In Freddie Gray Case, Court Delays Cops' Trials

In a rare move, Maryland's highest court agreed Thursday to halt trial proceedings against the Baltimore police officers charged in the Freddie Gray case, taking up competing appeals on whether Officer William G. Porter can be compelled to testify against his five fellow defendants.

By Kevin Rector and Justin Fenton

In a rare move, Maryland's highest court agreed Thursday to halt trial proceedings against the Baltimore police officers charged in the Freddie Gray case, taking up competing appeals on whether Officer William G. Porter can be compelled to testify against his five fellow defendants.

The Court of Appeals' decision to consider the issue of Porter's testimony against his fellow officers postpones their trials, including one that had been scheduled to start Monday. The high court will hear expedited oral arguments in the appeals March 3, but it is unclear when it might rule.

Porter is contesting an order by Circuit Judge Barry G. Williams forcing him to testify against two fellow officers even as he faces a retrial in his case. Meanwhile, prosecutors appealed a decision by Williams that they contend wrongly blocked them from calling Porter to testify against three other officers.

Typically, appeals are heard after a case concludes, with appellate judges reviewing whether proper decisions were made.

"It's very unusual to have a pretrial ruling that is appealed like this," said Howard S. Chasanow, a retired Court of Appeals judge.

But Chasanow said the high court's intervention could bring a quicker resolution to the cases in the long run, settling contentious issues now instead of allowing them to play out in Circuit Court and then be appealed to the Court of Special Appeals, the state's second-highest court.

"They obviously recognize both the public importance of the issue and the need for an expeditious decision," Chasanow said.

Defense attorney Kenneth Ravenell, who is not connected to the Gray case, said the appeals court proceedings will be watched closely, in part because they could set a precedent for whether prosecutors can seek intervention from higher courts when handed detrimental rulings prior to a case's conclusion.

"It is such a novel issue that I think everyone involved in the criminal justice system is kind of waiting with bated breath to see how the court handles it," Ravenell said.

A question the court will consider is whether the state's request in the Gray cases is even an appealable issue.

The trial of Officer Edward M. Nero, one of the officers who participated in the arrest of Gray, a 25-year-old black man who suffered a fatal spinal injury in the back of a police transport van in April, had been scheduled to start in Circuit Court on Monday, with a pretrial motions hearing Friday. Those proceedings have been postponed under a stay issued by the high court.

Porter is the only officer involved in the case who has gone to trial. Prosecutors had asked to try him first, hoping to secure a conviction and clear the way for him to testify against the other officers charged in the case. However, his trial in December ended in a mistrial when the jury could not reach a unanimous verdict on any of the four charges against him. The jurors were one vote away from acquitting Porter of the most serious charge, involuntary manslaughter.

Earlier this month, the Maryland attorney general's office, representing the Baltimore state's attorney's office, petitioned the high court to bypass the lower-level appeals process and expedite a review of Williams' decisions regarding Porter's testimony. The attorney general's office wrote that all five cases should be reviewed "because they provide an appropriate vehicle for this court to consider the application of [the state immunity statute] from all sides."

In orders handed down Thursday, Chief Judge Mary Ellen Barbera agreed that the high court should consider the cases, outlining three specific questions to be addressed by both sides in written briefs in the coming days.

In the cases against Officer Caesar R. Goodson Jr. and Sgt. Alicia D. White, in which Porter has been ordered to testify, the question is whether the state's immunity statute can protect Porter's Fifth Amendment right against self-incrimination by denying prosecutors the right to use anything he says on the stand against him in his retrial, scheduled for June.

In seeking to block Williams' order forcing Porter to testify in the Goodson and White trials, Porter's attorneys contend that only witnesses, not co-defendants, can be granted immunity and be forced to testify. They also contend that the immunity granted might not protect Porter from federal prosecution or perjury charges. Prosecutors argue that the immunity would be sufficient to protect Porter's constitutional rights, and Williams agreed.

In the cases against Nero, Officer Garrett E. Miller and Lt. Brian W. Rice, the high court will consider whether Williams had the right to use his discretion not to compel Porter to testify, and whether that decision constituted a "final," and therefore appealable, judgment.

Attorneys for the officers contend Williams' decision was not a final judgment and cannot be challenged at this juncture. Prosecutors have said that under the state's immunity statute, it is solely the decision of Baltimore State's Attorney Marilyn J. Mosby whether a particular witness being compelled to take the stand would serve the public interest, and that Williams' role in facilitating that decision was solely ministerial.

Williams said he is not simply a rubber stamp for Mosby, and that the prosecution's request that he compel Porter to testify in the Nero, Miller and Rice trials was "simply an attempt at subterfuge" aimed at controlling the order in which the officers are tried.

While there is no deadline for the high court to rule, it said it would hear the appeals on an expedited schedule. Barbera has made it a goal of the court to hand down rulings during the same term it hears arguments. The court's current term ends in September.

Prosecutors and defense attorneys for the officers are barred by a gag order from commenting on the cases.

Douglas Colbert, a University of Maryland law professor, said that while the high court's intervention is rare, it was in part necessitated by the intermediate court's decision to take up Porter's appeal.

"It was highly unusual for the Court of Special Appeals to intervene before trial and before the case resulted in a conviction," Colbert said. "Appeals courts typically become involved after conviction, to review the fairness of the outcome. ... I think the high court is saying, 'Let's do our best to resolve this issue without any further delay.'"

Joseph F. Murphy Jr., also a retired Maryland appellate judge, agreed.

"I am glad to see the Court of Appeals expediting the resolution of the immunity issue by exercising, essentially, its right to bypass the Court of Special Appeals," he said. "The sooner that issue is resolved, the better."

But Ravenell said the Court of Appeals might be "opening up a can of worms."

"What message does it send for future cases by taking this case? Are you inviting the state in the future ... to hijack a case when they get a denial from a judge?" he asked.

In a case Ravenell argued that went to the U.S. Supreme Court, prosecutors sought appellate court intervention after a judge ruled that a key statement could not be admitted as evidence.

Ravenell said the case was able to move up through the appeals courts because prosecutors argued that they could not try the case without the statement. But Ravenell noted that prosecutors in the Gray case only recently said that Porter is a crucial witness against Nero, Miller and Rice.

"The state had intended to try these officers without Porter," Ravenell said, "so it clearly can't be their argument that Porter is indispensable to their case and that once the judge said they can't call him, that they can't proceed."

Prosecutors told Williams that they had the right to change their mind.

"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."

Gerard P. Martin, a defense attorney who is not involved in the case, said the appeals court had no choice but to step in and "straighten out the immunity issues before this circus gets worse."

"Sure it is unusual, but this is not your normal case," Martin said. "Politics and law are not made to mix well. The court had to give guidance to a lower court system that seems to be afraid to deal with this situation."

(c)2016 The Baltimore Sun

Caroline Cournoyer is GOVERNING's senior web editor.
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