The state attorney general’s office has asked the Court of Appeals to take on the appeals pending for five of the six Freddie Gray cases and resolve the issue of the state’s immunity statute as it applies to Officer William Porter.
Lawyers for the state filed Wednesday a petition for a writ of certiorari and motion for expedited review with the state’s highest court, seeking to bypass the intermediate Court of Special Appeals.
“Certiorari review of this case, prior to a decision in the Court of Special Appeals, is necessary and desirable because this case presents an issue of first impression and because pre-judgment certiorari review will advance the cause of judicial economy and assure that the officers charged in the death of Freddie Gray are brought to trial in a timely manner,” the petitions in the cases of Officer Caesar Goodson and Sgt. Alicia White state.
The Court of Appeals has the power, either on its own or on the request of one of the parties, to take a case from the Court of Special Appeals and hear it, according to Byron Warnken, a University of Baltimore School of Law professor who has written a treatise on Maryland criminal procedure.
Called “bypassing,” the Court of Appeals typically elects to take cases with isolated issues, according to Warnken, rather than appeals presenting multiple questions.
The Porter appeal issue was already moving quickly, comparatively, Warnken said, with arguments set before the Court of Special Appeals within two months of the circuit court ruling.
“We were already on a fast-track,” Warnken said. “As slow as that was, we were on a fast-track.”
Grant of immunity
The issue in the five cases the attorney general’s office is asking for the high court to hear revolves around Baltimore City Circuit Judge Barry Williams’s interpretation of Maryland’s immunity statute.
Williams found that, so long as Porter was granted use and derivative use immunity, which prevents prosecutors from using any of Porter’s testimony against him or deriving any additional evidence from it, his right against self-incrimination was preserved.
The motion compelling Porter to testify against Goodson was granted and then appealed by Porter’s lawyers. Oral arguments are scheduled in the Court of Special Appeals on March 4, putting Goodson and White’s trials on hold.
Goodson, whose trial was set to begin Jan. 11, has argued his right to a speedy trial is being violated by the stay, which his lawyers claim is part of the prosecution’s trial strategy and has created chaos. Prosecutors also moved to compel Porter’s testimony at the remaining officers’ trials, but defense attorneys claimed the request was “a pretextual effort by the state to seek postponement.”
Williams agreed with the defense and denied the motion. The state appealed the judge’s ruling and asked Williams to stay proceedings pending the appeal.
Williams denied that motion this week, ruling that his decision to deny the motion to compel was “based upon the Court finding that the State’s motion was simply an attempt at subterfuge because they did not agree with the Court’s order to continue with the other trials.”
Officer Edward Nero is scheduled to go to trial on Feb. 22, followed by Officer Garrett Miller and Lt. Brian Rice in early March.
Porter’s retrial is scheduled for June.
Defense attorneys for Nero, Miller and Rice objected to the state’s appeal of Williams’ denial, claiming the order was not a final judgment.
The attorney general’s office’s petition to the Court of Appeals asserts that a 1986 case involving a circuit court’s refusal to grant motions to compel immunized testimony was appealed and neither appellate court questioned whether the order was appealable.
“Here, the circuit court’s order adjudicated all claims in the immunity action in their entirety, along with the rights and liabilities of the proper parties to that separate immunity action,” according to the petition.