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New prosecutors face ‘heavy burden’ in Miller pretrial hearing

Officer Garrett Miller is scheduled this week to become the fifth officer tried in connection with the death of Freddie Gray. But he will be the first tried after testifying in a fellow officer’s case, necessitating a unique pretrial hearing where a new team of prosecutors will have to prove it is untainted by his testimony, which cannot be used against him.

Officer Garrett Miller leaves the Court of Appeals in March. The top court ruled earlier this year that Miller and five other officers charged in connection with the death of Freddie Gray can be called to testify against co-defendants so long as they are granted use and derivative use immunity. (AP Photo/Jose Luis Magana)

Officer Garrett Miller leaves the Court of Appeals in March. The top court ruled earlier this year that Miller and five other officers charged in connection with the death of Freddie Gray can be called to testify against co-defendants so long as they are granted use and derivative use immunity.
(AP Photo/Jose Luis Magana)

Chief Deputy State’s Attorney Michael Schatzow and Deputy State’s Attorney Janice Bledsoe have led the prosecution in the previous four trials — which resulted in one hung jury and three acquittals — but when Miller was called to the stand in Officer Edward Nero’s case in May, two new prosecutors were assigned to his case.

Though the case against Miller is essentially the same as the one against Nero, the new prosecutors may not even be able to know the reasons behind the judge’s acquittal of Nero because it was so entwined with Miller’s testimony.

“The compelled testimony opens up a whole can of worms because ultimately the trial of Officer Miller is supposed to be completely unaffected by the fact that he was compelled to testify in another case,” said University of Baltimore School of Law professor David Jaros, who has filed all of officers’ cases.

To the extent Miller’s testimony shaped Baltimore City Circuit Judge Barry Williams’ decision in Nero’s case – a ruling that was read from the bench and released as a transcript – it could be “problematic” if it were permitted to affect any advice given to the new prosecutors, according to Jaros.

Baltimore defense attorney Steven H. Levin said that by shielding themselves from Williams’ verdict in the Nero case, the new prosecutors are moving forward with a potentially weak case without full awareness of the judge’s reasoning.

“Because of their need to remain untainted, the new prosecutors may not appreciate these facts because of their lack of familiarity with Judge Williams’ specific findings in the Nero case,” Levin, of Levin & Curlett LLC, said.

Rare hearing

Miller was compelled to testify against Nero despite exercising his right to avoid self-incrimination because he was granted use and derivative use immunity, which prevents the state from using anything he said or anything that could be investigated based on what he said against him. At a Court of Appeals hearing on the issue earlier this year, an attorney for the state told the judges that prosecutors were aware of the heavy burden they would face if an officer testified with immunity then later went to trial.

The state must prove that its evidence in Miller’s trial is untainted by his immunized testimony at a Kastigar hearing, named for the Supreme Court case that established use and derivative use immunity as co-extensive with the Fifth Amendment right against self-incrimination.

Defense attorneys requested a hearing in late June and through motions have accused Schatzow and Bledsoe of meeting with the new prosecutors, Lisa Phelps and Sara David, on several occasions after Miller gave his testimony.

“It’s not impossible that the prosecution will be able to demonstrate that everything that was shared related to information that was already in possession of the prosecutor’s office,” Jaros said, noting the defense’s accusations may not be substantiated. “However, it is certainly very troubling for attorneys who witnessed the compelled testimony to give any advice to the attorneys who plan to try the case because it raises the specter that some, even unconscious, suggestion will be shaped by the compelled testimony.”

Williams issued an order Friday — which was unsealed Tuesday — scheduling the Kastigar hearing for Wednesday morning, the day previously set aside for pretrial motions.

Miller is represented by Catherine Flynn and Brandon Mead of Mead, Flynn & Gray P.A. in Baltimore.

Different facts

Miller is charged with assault, reckless endangerment and two counts of misconduct in office, all misdemeanors, for his role in Gray’s arrest and transport.

According to his testimony at Nero’s trial, he initiated the stop of Gray after Lt. Brian Rice called out a foot chase and detained him.

Prosecutors allege Miller committed assault and misconduct in office when he arrested Gray without probable cause, the same theory they used in Nero’s case. But Williams did not agree with the novel legal theory, finding Nero did not touch Gray and was not present “when the detention morphed into an arrest.”

Said Jaros: “I still think it’s a real stretch to pursue that legal theory of assault but it is certainly true that there is nothing in the Nero decision that suggested that that theory was untenable.”

Miller was also present and assisted when Gray was removed briefly from the police transport wagon, placed in leg shackles and put face-down on the floor of the van, the basis for the reckless endangerment charge and second misconduct in office charge.

Miller testified about his involvement in Gray’s detention during Nero’s trial.

Determining the standard

The unusual circumstances of the Gray cases mean there is not a lot of guidance for Williams to determine what actions would constitute tainting the so-called “clean team” set to prosecute Miller.

“We don’t see this come up a lot so we’re in somewhat unexplored land, but I think the principal… is very clear,” Jaros said. “Officer Miller should be in no way prejudiced by the fact that he was compelled to testify and as a result, the court will, I imagine, take pains to ensure that the prosecution is not being informed, even indirectly, by what came out of that compelled testimony.”

Prosecutors were in possession of Miller’s statement to investigators after Gray’s injury as well as the testimony at trials prior to Miller’s testimony, according to Jaros, so there is an independent, untainted source for certain facts.

Jaros said prosecutors can tell the judge they limited their conversations with Schatzow and Bledsoe to certain areas of the case and did not discuss Miller’s testimony, which could satisfy Williams. But the law professor said he is concerned with setting precedent based on trust.

“I don’t think we can simply rely on trust to ensure the defendant’s constitutional rights are protected,” he said.