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Miller ordered to testify in Freddie Gray cases despite no appellate opinion

Officer Garrett Miller, left, has been ordered to testify against two co-defendants charged in connection with the death of Freddie Gray, including Officer Edward Nero, right. Miller's lawyers might appeal the ruling; Nero's trial is scheduled to begin May 10. (Baltimore Police Department via AP)

Officer Garrett Miller, left, has been ordered to testify against two co-defendants charged in connection with the death of Freddie Gray, including Officer Edward Nero, right. Miller’s lawyers might appeal the ruling; Nero’s trial is scheduled to begin May 10. (Baltimore Police Department via AP)

Relying on a per curiam order by the Court of Appeals, a Baltimore judge Wednesday ordered one of the officers charged in connection with the death of Freddie Gray to testify at two of his co-defendants’ trials, one of which begins in three weeks.

Baltimore City Circuit Judge Barry Williams ruled Officer Garrett Miller could be compelled to testify with a grant of immunity in the trials of Officer Edward Nero and Lt. Brian Rice. Williams gave the same order to Officer William Porter, which the state’s top court upheld but has yet to explain its reasoning.

Prosecutors have subpoenaed Miller to testify against Officer Edward Nero and Lt. Brian Rice. Nero’s trial is scheduled to begin May 10.

Rice was the shift supervisor and Miller and Nero were both involved in Gray’s arrest last April, holding him while waiting for a police transport van. All three 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.

Brandon Mead, an attorney for Miller, pointed out to Williams during Wednesday’s hearing the Court of Appeals opinion is pending.

“Really?” Williams responded sarcastically. “I wasn’t aware of that.”

In a written response to the subpoena request, dated April 14, Miller’s lawyers maintain their client’s objection to the motion to compel until the Court of Appeals issues an opinion.

“Unlike Officer William Porter, Officer Miller has not yet testified in his own trial and therefore maintains his right to remain silent,” the response states.

Mead said Wednesday the defense would reserve the right to make further arguments after seeing how “narrowly curtailed” the opinion of the state’s high court may be.

Both Mead and Flynn, of Mead, Flynn & Gray P.A. in Baltimore, appeared to begin making arguments contained in their court filings before being cut off by Williams, who asked only if there was anything further to be said on the issue outside of the filing. The attorneys also spoke with Williams at a brief bench conference.

Williams originally ruled in Porter’s case in January that a grant of use and derivative use immunity was required to overcome a refusal to testify based on the privilege against self-incrimination and the state’s immunity statute requirements were met. Porter appealed the decision; the Court of Appeals reached to take the case, affirming Williams’ order March 8.

The statute says the court “shall issue” an order requiring testimony of anyone claiming privilege when subpoenaed if the prosecutor determines “testimony or other information from the individual may be necessary to the public interest.”

The case is In the Matter of Officer Garrett Miller’s Testimony as a State’s Witness in the Criminal Prosecution of State v. Edward Nero, No. 992.