The state’s highest court agreed in a rare move Thursday to halt trial proceedings against the Baltimore police officers charged in the Freddie Gray case, taking up competing appeals regarding the forced testimony of one officer.
The Court of Appeals’ decision to consider the issue of Officer William Porter’s testimony against his five fellow officers postpones their trials — including one meant to start Monday — for the foreseeable future. The high court is set to hear oral arguments in the appeals on March 3, but it’s unclear when it might rule.
Porter is contesting an order by Circuit Judge Barry Williams forcing him to testify against two fellow officers while his own charges are pending. Prosecutors, meanwhile, say another decision by Williams wrongly blocked them from being able to call Porter to testify against three other officers.
Typically, appeals are heard after a case concludes, with appellate judges reviewing whether proper decisions were made. Retired Court of Appeals Judge Howard S. Chasanow said “it’s very unusual to have a pre-trial ruling that is appealed like this.”
But, Chasanow said, the court’s intervention could also bring about 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 in 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. “Like everyone else, I’ll be interested to see the decision.”
Defense attorney Kenneth Ravenell, who is not connected to the Gray case, said the appeals court proceedings will be closely watched by attorneys, in part because it could set precedent for whether prosecutors can seek intervention from the higher courts when they are handed detrimental rulings prior to the conclusion of a case.
“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 Nero, one of the officers who participated in the arrest of Gray — who suffered a fatal neck injury in the back of a police transport van in April — had been scheduled to start in Circuit Court on Monday, with a pre-trial motions hearing scheduled Friday. Both of those proceedings have been canceled under a stay issued by the high court.
Porter is the only officer to go to trial to date. 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 consensus 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.”
Chief Judge Mary Ellen Barbera agreed that the high court should consider the cases in orders handed down Thursday, outlining three specific questions to be addressed by both sides in written briefs in coming days.
In the cases against Officer Caesar Goodson Jr. and Sgt. Alicia White, where Porter has been compelled to testify, the question is whether the state’s immunity statute can protect Porter’s right against self-incrimination by denying prosecutors the right to use anything he says on the stand against him at his own retrial, which is scheduled in June.
In seeking to block Williams’ order forcing Porter to testify in the Goodson and White trials, Porters’ attorneys have said only witnesses, not co-defendants, can be granted immunity and be forced to testify. They also said that immunity may not protect Porter from federal prosecution or perjury charges. Prosecutors said the immunity granted to him would be sufficient to protect his constitutional rights, and Williams agreed.
In the cases against Nero, Officer Garrett Miller and Lt. Brian Rice, the high court will be considering whether Williams had the right to use his own discretion not to compel Porter to the stand, and whether that decision constituted a “final,” and therefore appealable, judgement.
Attorneys for the officers have said it was not a final judgement, and cannot be challenged at this juncture in the cases. Prosecutors have said that under the state’s immunity statute, it is solely the decision of Baltimore State’s Attorney Marilyn J. Mosby whether or not a particular witness being compelled to the stand would serve the public interest, and that Williams’ role in facilitating that decision was solely ministerial.
Williams said he was not simply a rubber-stamp for Mosby, and that the prosecution’s request to force Porter to the stand in the Nero, Miller and Rice trials was “simply an attempt at subterfuge” aimed at controlling the order in which the officers are tried.
There is no date by which the court must rule in the cases, though Barbera has made it a goal of the court to hand down rulings during the same term. 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 was 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,” he 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.”
However, Ravenell said the Court of Appeals may 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 said.
In a previous case Ravenell argued that went all the way to the U.S. Supreme Court, prosecutors sought appellate court intervention after a judge ruled a key statement couldn’t be admitted.
Ravenell said the case was able to move up through the appeals courts because prosecutors argued that they couldn’t try the case without the statement. But, Ravenell said, prosecutors in the Gray case only recently said Porter was a crucial witness against Nero, Miller and Rice.
“The state had intended to try these officers without Porter,” he 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, another 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.”
The Maryland Court of Appeals is scheduled to hear oral arguments in the appeals in the Freddie Gray case on March 3, but it’s unclear when it might rule.
The retrial of Baltimore Police Officer William Porter is tentatively scheduled for June 13.
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