Arresting officer presents ‘can of worms’ for prosecutors in Freddie Gray trial

Garrett Miller will be first person in Maryland to stand trial after testifying against co-defendant, meaning prosecutors must navigate around self-incrimination

After seven months and four trials, Baltimore prosecutors have not secured a single conviction against officers charged in the death of Freddie Gray, who sustained fatal injuries in the back of a police van. But as a fifth case begins on Wednesday with a motions hearing against the officer who physically arrested Gray, it will present a novel set of problems for prosecutors.

Officer Garrett Miller will be the first person in the state of Marylands history to stand trial after being forced to testify in the trial of a co-defendant. The case presents to prosecutors a potential legal landmine, requiring them to balance a vigorous argument for conviction with preserving the constitutional rights of Miller against self-incrimination.

Miller had been compelled to testify against his co-defendant, Officer Edward Nero, after the states highest court approved the practice with certain conditions. William Porter, whose first trial ended in a hung jury, was also compelled to testify before his retrial.

This kind of compelling a defendant to testify about the very matter in which he is being prosecuted in a case being subject to cross examination in this way, is really an unusual occurrence, said David Jaros, a University of Maryland law professor.

To protect his fifth amendment rights, prosecutors cannot use anything he said during the other trial to prove the case against him. Theyve also designated a clean team of lawyers who did not participate in or watch the earlier trials to protect the case from the taint of Millers earlier testimony. These lawyers have also been shielded from the news or discussions about Millers testimony in Neros case.

But defense lawyers are arguing in motions on Wednesday that even the clean team is not clean enough because they have had undue communication with the prosecutors in Neros case.

Jaros says determining how to insulate this trial from the last one will require Judge Barry Williams to make some hard choices about where to draw the line. Can the lawyers on the clean team even read the verdict from the last case? How much information would be too much or not enough?

When we think through just how challenging it is for the judge to untangle how the compelled testimony might be shaping prosecutors strategy, it suggests what kind of can of worms this opens up, he said.

After Grays death from injuries sustained in the back of the police van, video of his arrest drew international outrage as Gray screamed while officers dragged him on the ground. The city broke out in weeks of unrest, including numerous mass demonstrations against police brutality and a day of rioting. The governor declared a state of emergency and the mayor imposed a curfew on the city. People thought the city was in store for much worse before the young African American prosecutor Marilyn Mosby announced charges against six of the officers, causing people who had been protesting to celebrate in the streets.

Now, many who have watched trial after trial end without conviction are losing their faith in Mosbys strategy.

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