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Freddie Gray defendants claim improper appeal by state

Officers’ lawyers argue prosecutors can only challenge final judgments, not denial of motion

Three of the officers charged in connection with the death of Freddie Gray claim the Maryland Office of the Attorney General had no right to appeal a trial court order declining to compel Officer William Porter to testify against them.

Lawyers for Officers Garrett Miller and Edward Nero and Lt. Brian Rice argue the state is asking the court “to change well-settled appellate procedure and jurisdiction in this case in order to reach its argument on the merits,” according to a brief filed Monday morning.

Prosecutors earlier this month appealed Baltimore City Circuit Judge Barry Williams’ denial of a motion to compel Porter’s testimony against Miller, Nero and Rice. Williams had previously ordered Porter could be forced to testify with immunity against Officer Caesar Goodson and Sgt. Alicia White – which was appealed by Porter – and denied a request to postpone all of the cases during the appeal.

In seeking to compel Porter’s testimony in the remaining three cases, Williams said he believed that state filed the motion “to get the postponement that they want, to get around [the] Court’s ruling that these cases need to continue,” according to the defense brief.

Appellate jurisdiction does not exist for the state, the defendants’ lawyers argue, because prosecutors can only appeal final judgments which, in a criminal case, do not occur until there has been a verdict and a sentence, according to the brief. Maryland law further limits the state’s right to appeal to certain enumerated final judgments, including the granting of a motion to dismiss or a failure to impose a mandatory sentence.

“The State’s appeal in the present case does not fall under one of the ‘narrow categories’ presented in [the statute], and is therefore not valid,” according to the brief.

Jacob S. Frenkel, a former federal prosecutor following the case, said he believes the substantive issue about Maryland’s immunity statute is of such importance to the cases that the Court of Appeals will find a basis to accept the appeal.

“It is reasonable to believe that the court will find a way even if its ultimate ruling is relatively narrow,” said Frenkel, of Shulman Rogers Gandal Pordy & Ecker P.A. in Potomac.

Precedent for appeal

In its filing last week with the state’s top court, the attorney general’s office argued the circuit court’s denial of the motion to compel Porter’s testimony constituted a final judgment, or, alternatively, is appealable under the common law collateral order doctrine.

The state relies on a 30-year-old case where prosecutors were allowed to appeal a circuit court’s denial of a motion to compel immunized testimony, and neither appellate court commented on appealability, a threshold issue which must be addressed before the merits of the case.

“It can be inferred from this Court’s silence… that the right of the State to appeal the denial of a motion to compel witness testimony did not give this Court pause,” according to the brief.

But the officers’ lawyers, in their filing Monday, counter there is a fundamental difference between the current appeals and the 1986 case, which was appealed from a grand jury proceeding where witnesses had invoked immunity under an old statute.

While agreeing that the state’s right to appeal in criminal cases is governed by statute, the attorney general’s office contends the case at issue is not a criminal one.

“A request for an order compelling a witness to provide immunized testimony has none of the hallmarks of a criminal case,” according to the brief.

In response, the defense fired back: “There is nothing civil in nature about the proceeding that the State is attempting to appeal.”

Appellate courts have in the past allowed the state to seek appellate review of judgments “arising from a court exercising criminal jurisdiction to resolve a procedural or substantive controversy collateral to and separate from the controversy embodied in the State’s criminal case against the defendant,” according to the state’s brief.

‘Pandora’s Box’

The defense cautioned the court against “enlarging the State’s appellate rights” in a way that would delay criminal cases by allowing the state to appeal from any discovery or in limine order pertaining to a third party, calling it “Pandora’s Box.”

Frenkel said he finds the collateral order doctrine argument the most compelling because it would allow the Court of Appeals to find appellate jurisdiction on very narrow grounds.

“The harm that will come from leaving this decision without review is disproportionate to the potential importance to an appellate court to provide clarity regarding the procedural issue,” he said.

There are a number of “hooks” the court can use to resolve the immunity issue, according to Frenkel, and the court “will want to provide some calming waters and stability to these important issues.”

Lawyers for the state also filed a brief Monday in the consolidated case pertaining to Goodson and White, which seeks to determine if Porter’s right against self-incrimination under the state and federal constitutions is violated by the order compelling his testimony at those two trials despite his pending retrial.

Final reply briefs are due Wednesday. The Court of Appeals is scheduled to hear arguments in all of the matters Thursday.

The cases are State of Maryland v. Brian Rice, Edward Nero, Garrett Miller, Nos. 96, 97, 98, Sept. Term 2015; and Caesar Goodson & Alicia White v. State of Maryland, No. 99, Sept. Term 2015.