In Nero trial, anticipated testimony yields unclear results

Following months of legal posturing and a precedent-setting decision by Maryland’s top court, one of the Baltimore police officers charged in connection with the death of Freddie Gray took the witness stand with limited immunity against a co-defendant.

Officer Garrett Miller, left, and Officer Edward Nero, right.  (Baltimore Police Department via AP)

But Officer Garrett Miller’s stint as a compelled witness for prosecutors ultimately resulted in testimony that may prove beneficial to Officer Edward Nero, and observers saying prosecutors will not make the tactic a regular one.

“I think what we saw today is that a compelled witness sometimes helps a defendant more than it helps the state,” said Steven H. Levin, a former federal prosecutor who has been following the cases.  “Do I think it’s a tactic that the state’s going to want to engage in in the future? No. I think they’ve learned a valuable lesson.”

Both Nero and Miller face identical charges in connection with Gray’s death – second-degree assault, reckless endangerment and misconduct in office – though they are being tried separately.

Miller said Monday in Baltimore City Circuit Court he was the sole officer involved in physically arresting Gray, from detaining him to placing him in handcuffs and escorting him a few feet from the scene. Nero was present but not actively involved, according to Miller.

Deputy State’s Attorney Michael Schatzow questioned Miller carefully and sought specific and short answers, but repeated objections by Nero’s lawyers to apparent leading questions were sustained by Judge Barry Williams, forcing Schatzow to rephrase.

Miller said he pursued Gray and a second individual after his shift commander, Lt. Brian Rice, called out a foot chase on the radio. Miller then saw the men being pursued by Rice and caught up to Gray, who eventually surrendered. Nero arrived on scene as Miller was making the arrest.

“It was Officer Miller who not only handcuffed him, but lifted him up and detained him, and Officer Nero never touched him until he was being loaded into the back of the wagon,” said Warren S. Alperstein, of Alperstein & Diener P.A. in Baltimore, who observed Monday’s proceedings.

Prosecutors claim Nero committed second-degree assault when he arrested Gray without probable cause. They concluded their case Monday afternoon, after which Williams denied a defense motion to dismiss the charges against Nero.

The defense then began presenting its case, which it is scheduled to continue Tuesday morning.

Not-so slippery slope

The Court of Appeals has yet to provide its reasoning for a March order affirming Williams’ decision that Officer William Porter could be compelled to testify at two other officers’ trials. Based on the court’s affirmation, Williams granted a motion to compel Miller’s testimony.

Prior to the Court of Appeals order in Porter’s case, Miller would not have been called to testify because of his own right to avoid self-incrimination.

Porter’s mistrial in December forced prosecutors to ask Williams to compel Porter’s testimony with immunity and, after reviewing the state’s immunity law, Williams granted the request, which was promptly appealed by Porter’s attorneys and fast-tracked to the Court of Appeals.

Attorneys following the proceedings expressed concern for more common co-defendant cases where there are not lengthy out-of-court statements and, as in Porter’s case, a complete record from a trial to make it easier to spot different evidence which could be traced back to immunized testimony.

Baltimore solo practitioner Gary S. Bernstein said Monday he does not think the state will begin regularly compelling co-defendant testimony because it would be too risky in a run-of-the-mill criminal case where prosecutors don’t know what a witness will say on the stand.

“This is a set of circumstances where you know exactly what you’re getting because with the exception of Goodson, they all made statements,” he said. “You have no clue in the average case.”

Also unique to the officers’ cases is the fact that they have continued to present a united front and reject any possible plea offerings.

“You rarely see people stick together like this,” Bernstein said. In an average case, he added, “people on the lower rung who don’t want to go to prison will cooperate as they always have.”

Levin agreed that the six officers’ cases are too unique to set a dangerous precedent.

“I don’t expect the state to make a habit of calling co-defendants to testify against each other,” said Levin, of Levin & Curlett LLC in Baltimore.

Miller testified with use and derivative use immunity, which prohibits prosecutors from using anything he says against him – including deriving any new evidence or lines of questioning – at his trial in July. The prosecutors in Nero’s case will not be able to prosecute Miller because they’ve been exposed to the immunized testimony and a “clean team” must prove to the judge that none of Miller’s testimony has tainted his own trial.