In Freddie Gray case, prosecutors face legal ‘minefield’ over testimony

BALTIMORE—Before the next Baltimore police officer stands trial in the arrest and death of Freddie Gray, prosecutors will face a barrage of legal questions about whether they gleaned any evidence or strategic advantage from his forced testimony in the trial of another officer in May.

One state high court judge called the process a legal “minefield.” An assistant attorney general representing the prosecution said it could present a “banquet of consequences” for them.

Officer Garrett Miller, 27, was compelled against his will to testify in the trial of Officer Edward Nero under a limited form of immunity that prevents prosecutors from using anything he said on the stand against him at his own trial.

Miller’s trial is scheduled to begin Wednesday. Before it starts, Baltimore Circuit Judge Barry G. Williams is expected to hold a hearing to determine whether prosecutors took the proper steps to ensure the terms of that immunity agreement— designed to protect Miller’s constitutional right against self-incrimination—have not been violated.

Prosecutors and defense attorneys have filed written motions about that so-called Kastigar hearing, and Williams is expected to hear arguments on those and other pretrial motions Wednesday morning.

It remains unclear how long the hearing will take and whether it will significantly delay the start of the trial itself. Never in Maryland has a defendant gone to trial after having been compelled to testify against a co-defendant.

What is clear is that the hearing will mark a significant turning point in the prosecution of the six officers charged in Gray’s arrest and death.

The need for the prosecution in Miller’s case to be completely unswayed by his testimony in Nero’s trial led the state to introduce a “clean team” of fresh prosecutors who were “instructed not to watch any news coverage of any trials involving the testimony of Officer Miller, not to discuss the testimony of Officer Miller and to take precautions to ensure that they would not be exposed to Officer Miller’s immunized testimony.”

That means that for the first time in the Gray case, senior prosecutors Chief Deputy State’s Attorney Michael Schatzow and Deputy State’s Attorney Janice Bledsoe will not lead the prosecution. Instead, Assistant State’s Attorney Lisa Phelps, a veteran of the city state’s attorney’s office, and Sarah David, who joined the office in 2014, will assume the duty of seeking a conviction. Schatzow and Bledsoe, their superiors, have come up empty in four previous trials.

Gray, 25, died last year after suffering severe spinal cord injuries in police custody. His death initially inspired widespread, peaceful protests against police brutality, but on the day of his funeral, the city erupted in riots, looting and arson. Within days, Baltimore State’s Attorney Marilyn J. Mosby charged six officers in his arrest and death.

All pleaded not guilty. The first trial, of Officer William Porter, ended in a mistrial after a 12-member jury failed to reach a consensus on any of the charges. Then Williams acquitted three officers—Nero, Officer Caesar Goodson Jr. and Lt. Brian Rice— in bench trials in May, June and July, respectively.