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Mosby’s presence adds wrinkle to prosecution strategy

Baltimore City State’s Attorney Marilyn Mosby sat quietly behind her team of prosecutors Monday as they wrapped up their case against Officer Edward Nero, one of the six officers charged in connection with the death of Freddie Gray.

Baltimore State's Attorney Marilyn Mosby, left, arrives at Maryland Court of Appeals on Thursday, March 3, 2016, in Annapolis, Md. Maryland Court of Appeals will hear oral arguments in five cases related to the arrest and death of Freddie Gray. (AP Photo/Jose Luis Magana)

Baltimore State’s Attorney Marilyn Mosby, left, arrives at Maryland Court of Appeals on Thursday, March 3, 2016, in Annapolis, for oral arguments in five cases related to the arrest and death of Freddie Gray. (AP Photo/Jose Luis Magana)

Mosby has been present for most of the motions hearings and through days of trial, but her presence Monday had special significance: It effectively barred her from participating in the prosecution of a later case.

Officer Garrett Miller, who was with Nero and faces the same charges, testified with use and derivative use immunity during the state’s case-in-chief. None of what he said on the stand can be used against him at his trial in July, and prosecutors cannot go looking for new leads or strategies for his trial based on his testimony.

Baltimore City Circuit Judge Barry Williams cautioned prosecutors about the heavy burden they would carry to prove no immunized testimony is used against an officer when they go to trial, but granted their motions to compel. A Kastigar hearing, named for a Supreme Court case, will have to be held, and they’re extremely rare.

The only effective way to ensure Miller’s testimony doesn’t influence even the thought process of the people who will later prosecute him is to have a “clean team” of attorneys not exposed to the testimony at all, according to Supreme Court holdings.

The Baltimore Sun reported last week that such a team was established, but Mosby, the head of the State’s Attorney’s Office, now cannot consult with or advise them because she heard the immunized testimony. Deputy prosecutors Janice Bledsoe and Michael Schatzow, who are prosecuting Nero, are also now barred from participating in Miller’s case.

With up to five more trials upcoming and multiple officers subpoenaed to testify against their co-defendants, one has to wonder how deep the bench is in the Baltimore City State’s Attorney’s Office.