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Baltimore city prosecutors have filed a motion to compel Officer Garrett Miller, left, to testify at Officer Edward Nero’s trial, scheduled to begin May 10. The Court of Appeals has ruled Officer William Porter can be compelled to testify against his co-defendants in the Freddie Gray cases but has not given its reasoning, leaving some court observers to wonder if Miller’s testimony will be permissible. (Baltimore Police Department via AP)

Prosecutors test Court of Appeals ruling in Porter case

Motion seeks officer’s testimony despite no opinion from top court

Without knowing the logic and limits of the Court of Appeals’ decision that Officer William Porter can be compelled to testify against his co-defendants in the Freddie Gray cases despite his pending retrial, Baltimore city prosecutors have moved to compel another officer to take the stand at a trial next month.

Prosecutors on Thursday filed a motion to compel Officer Garrett Miller to testify at Officer Edward Nero’s trial, scheduled to begin May 10. Nero has been charged with second-degree assault, reckless endangerment and misconduct in office in connection with the death of Gray while in police custody last April.

While Porter has had a full trial, including hours of his own testimony, prior to giving any testimony under immunity, there is no such record of the state’s case against Miller, who is scheduled for trial July 27.

“This is much more problematic than Porter because, in this case, we will not have had a full preview of all the evidence that the prosecutor has,” said David Jaros, a criminal law professor at University of Baltimore School of Law.

Miller and Nero were both involved in Gray’s arrest April 12 and held him while waiting for a police transport van. They were also present when Gray was taken out of the van and put into flex handcuffs and leg shackles then slid head-first back into the van.

Prior to the Court of Appeals rulings, Miller would not have been called as a witness unless prosecutors made a deal with him in exchange for his testimony, according to Baltimore defense attorney Adam Ruther.

“This is the most straightforward, typical expression of the co-defendant relationship,” said Ruther, of Rosenberg Martin Greenberg LLP in Baltimore. “Two people who were side-by-side throughout the facts of the case unfolding. They are both uniquely situated to tell an entire story about what happened.”

Maryland’s highest court last month affirmed Baltimore City Circuit Judge Barry Williams’ ruling that the state’s immunity statute and relevant court rulings provided sufficient protections for Porter’s constitutional right against self-incrimination. The Court of Appeals issued a per curiam order March 8, five days after hearing oral arguments in the case but has not delivered its opinion explaining its reasoning.

Williams told prosecutors they would have a difficult time proving none of their evidence against Porter stemmed from his immunized testimony at a pre-trial hearing, a fact echoed in the appellate judges’ questions during oral arguments.

“As it stands, it seems likely that Judge Williams is going to see his hands as relatively tied by the Court of Appeals decisions until we see some of their logic,” Jaros said.

Slippery slope

The appeals stemming from Porter’s subpoenas were cases of first impression, and their broader impact outside of the Freddie Gray cases is still an open question, especially without the Court of Appeals weighing in with its reasoning, according to Jaros.

The court could limit its opinion to Porter’s circumstances but unusual circumstances are not ideal for precedent, he said, so the court may also address more general situations.

“I think it’s troubling to imagine witnesses who are awaiting trial being forced to take the stand in situations that are different from Porter’s where there hasn’t been that preview of the evidence,” Jaros said.

Defense attorneys have argued a potential slippery slope loomed for all criminal defendants if the state was permitted to overcome their right to remain silent when called to testify against their co-defendants by granting use and derivative use immunity. However, the safeguards existing for Porter made his situation less concerning, according to Jaros.

“Slippery slope is a hard argument to make, particularly in Porter’s case when they were standing at the top of the slope,” he said.

The broader impact of the decision can change the way prosecutors strategize when trying co-defendants, Ruther said, noting there are still benefits to offering plea agreements.

“You can catch more flies with honey than with vinegar,” he said, adding that just compelling witness testimony does not guarantee the testimony nor anything useful from it. “There might still be a lot of value in making someone a cooperating witness.”

A scheduling order dated Thursday requires all motions in Nero’s case be filed by Friday; responses are due April 26.