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Officer Edward Nero, left, Lt. Brian Rice, attorney Ivan Bates and Officer Garrett Miller leave the Maryland Courts of Appeal building in Annapolis on Thursday afternoon. The Court of Appeals heard oral arguments in five cases related to the arrest and death of Freddie Gray last year. (AP Photo/Jose Luis Magana)

Court of Appeals has questions for lawyers on both sides of Freddie Gray cases

ANNAPOLIS – The judges on Maryland’s highest court expressed skepticism Thursday that the rights of six officers charged in the Freddie Gray cases would be trampled if the court did not intercede and overturn the trial judge’s interpretations of state’s immunity statute.

The criminal cases for the six officers have been placed on hold due to battles over whether Officer William Porter, who has a retrial scheduled for June after a mistrial last year, can be compelled to testify at the other officers’ trials. Baltimore City Circuit Judge Barry Williams granted the state’s motion to compel his testimony against Officer Caesar Goodson and Sgt. Alicia White but denied prosecutors’ motion to compel Porter’s testimony against Officers Garrett Miller and Edward Nero and Lt. Brian Rice.

There is no timeline for an opinion by the Court of Appeals, which is expected to file a decision in writing, according to a Judiciary spokeswoman.

Gary Proctor, a lawyer for Porter, argued Thursday that if Porter has to testify in any of the other trials, he may be prevented from taking the stand on his own behalf later due to the “minefield” created by his prior testimony, even with immunity.

But Court of Appeals Judge Lynne A. Battaglia suggested complications are more likely to arise for the prosecutors in Porter’s retrial, during which they will have to prove none of their evidence or information was derived from immunized testimony.

“The state’s in a minefield, it seems to me,” she said.

Yet Battaglia, Chief Judge Mary Ellen Barbera and Judge Sally D. Adkins repeatedly questioned Proctor on the timing of his requested relief, which they suggested would be more proper for Porter’s retrial.

Adkins said evaluating the defendant’s right against self-incrimination is done at a hearing designed to ensure the state’s information came from an independent course. The so-called Kastigar hearing, named after a Supreme Court case, is a rarity in Maryland but is designed to ensure prosecutors are not violating an immunity agreement. Barbera referred to the state’s “heavy burden” in such instances.

Tough questioning

All of the judges asked questions to help them further narrow the arguments being made before them, pestering attorneys on both sides who refused to provide definitive answers.

Battaglia forced Proctor to abandon a defense argument that only transactional immunity, which protects the witness from prosecution for anything related to the subject of his or her testimony, could be satisfactory in any case. The defense initially claimed Maryland’s immunity statute was unconstitutional as applied to Porter’s situation, not on its face, but raised the transactional immunity issue in a reply brief filed Wednesday.

After several exchanges with the judges, Proctor conceded the point.

“I’m not expecting you to throw the statute out,” he said.

When Assistant Attorney General Carrie Williams, arguing on behalf of the state, said prosecutors must put on substantially the same case against Porter on retrial for there to be no claim they are using immunized statements, Judge Robert N. McDonald suggested she was saying it will be almost impossible to retry Porter.

Williams responded that prosecutors were merely locked into the case they presented in December because any deviation will be objected to as having an improper source.

State vs. federal

Battaglia appeared willing to consider the contention by the defense that Article 22 of the Maryland Declaration of Rights could provide Porter greater protections than the Fifth Amendment in matters relating to self-incrimination, asking Williams if the line of cases cited by the defense indicated there is something different about a defendant’s self-incrimination rights under the state constitution.

The cases included findings by the Court of Appeals that a defendant has a right to waive a jury instruction about drawing inferences from his or her silence and that post-arrest, pre-Miranda silence is inadmissible to impeach the defendant.

Williams said she was not sure exactly where Article 22 protections become broader because the Fifth Amendment applies to all witnesses no matter if they are a defendant or potential defendant, and it “doesn’t expand or contract with the filing of a charging document.”

Adkins said the court sometimes interprets Article 22 to be broader than the Fifth Amendment but usually finds the provisions to be coextensive. Proctor said the uniqueness of this case makes it appropriate to extend greater protections.

“So sometimes we do and sometimes we don’t,” Adkins said, in summarizing the court’s precedent on the matter.

Timing of appeal

The court also heard the state’s appeal from Williams’ denial of prosecutors’ motion to compel Porter’s testimony against the remaining officers. But Baltimore City Deputy State’s Attorney Michael Schatzow spent the bulk of his time before the court debating whether the appeal was even proper.

Defense attorneys filed a motion to dismiss the appeal on the basis that Maryland law does not permit prosecutors to appeal the denial of a motion to compel. Prosecutors can only appeal final judgments which, in a criminal case, do not occur until there has been a verdict and a sentence and 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.

Schatzow contended Williams’ denial of a motion to compel was a final civil judgment or, alternatively, an interlocutory appeal subject to the collateral order doctrine. He cited instances of the state appealing a denial of a motion in a grand jury proceeding.

Barbera asked for any authority from another jurisdiction which addressed the ability to appeal such a decision in a “materially identical situation”; Schatzow conceded he could not provide an example.

But Schatzow said the case is “uniquely different” because if one of the defendants is acquitted, there will be no way to appeal Williams’ ruling on the matter.

Adkins questioned both sides about when, if ever, the substantive issue in the case could be reviewed on appeal if the court sided with the defense.

“How will this court ever get the chance to review what this statute means?” she asked.

Battaglia suggested the possibility of a cross-appeal from a conviction.

Baltimore solo practitioner Thomas M. Donnelly argued the merits of the substantive argument for the defendants, claiming Williams had discretion to grant or deny the state’s motion to compel.