Most Read
Image 01 Image 02 Image 03

Freddie Gray: Prosecution to Compel Another Officer to Testify

Freddie Gray: Prosecution to Compel Another Officer to Testify

Prosecutor Mosby seeks to compel Officer Garrett Miller to testify against Officer Edward Nero

Having succeeded in getting court permission to compel Officer Edward Porter to testify, under limited immunity, against other officers in the “Freddie Gray” trials, Baltimore prosecutors have now filed a motion to similarly compel Officer Garrett Miller [Featured Image, left] to testify in next month’s trial of Officer Edward Nero [Featured Image, right], reports the Baltimore Sun.

The prosecution’s motion is embedded below.

Porter was the first of the officers involved in Gray’s arrest and transport to stand trial, with a hung jury as the result. Porter is scheduled to be retried later this year in state court, and may also be subject to Federal prosecution.

Despite this, Maryland’s highest court has ordered that Porter can be compelled to testify against other officers under the protection of limited immunity, and that doing so does not violate Porter’s 5th Amendment right against self-incrimination.

Last Thursday’s filing by Prosecutor Marilyn Mosby now seeks to apply the same compulsion to Officer Miller, with particular respect to the next “Freddie Gray” trial of Officer Nero. He may, of course, also be compelled to testify in the trials of the other charged officers.

Indeed, there seems little reason at this point why each of the six officers being charged could not now be compelled to testify in every other officer’s trial, subject only to their being provided with limited immunity in each instance.

–-Andrew, @LawSelfDefense


Attorney Andrew Branca and his firm Law of Self Defense have been providing internationally-recognized expertise in American self-defense law for almost 20 years in the form of blogging, books, live seminars & online training (both accredited for CLE), public speaking engagements, and individualized legal consultation.
“Law of Self Defense, 2nd Ed.” /Seminars / Instructor Program / Seminar Slides / Twitter /Facebook / Youtube

DONATE

Donations tax deductible
to the full extent allowed by law.

Tags:

Comments

assemblerhead | April 4, 2016 at 1:14 pm

If they do … and we know the Feds are waiting for their turn …

Insanity.

Personal Opinion :
Plead the 5th at every question, and take the Contempt of Court charge.

If they don’t, everything they say will be used against them. By the Feds, if not Mosby.

Contempt of Court has a lot shorter time duration than a criminal murder conviction at the Federal level.

    Milhouse in reply to assemblerhead. | April 4, 2016 at 2:15 pm

    They can’t use it against him. Nor can they use against him anything derived from what he says.

      assemblerhead in reply to Milhouse. | April 4, 2016 at 3:15 pm

      You are ignoring the facts ….

      #1 : The Feds could solve a lot of the questions by offering immunity as well. They have not and will not. Why?… they want additional material for their turn!

      #2 : This “persecutor” Mosby has no idea what justice is. This entire case is about getting her husband elected Mayor, or her getting elected to State Senator / State Governor. ( If memory is correct. )

      #3 : This judge signaled that he is running a “kangaroo court”. Mob violence / Mob rule, are what determines the verdict in his mind. If he intended anything else he would of approved the “change of venue” motion.

      —————————————————————–

      These Officers are behind the 8-Ball no matter what the truth is. The only thing that they can do now is limit the damage to their lives and their fellow officers lives.

      Hung jury? -> wash,rinse,repeat, ad infinitum.

      The Constitutional prohibition against double jeopardy does not apply to triple jeopardy, ad infinitum, to this State and Federal Govt.

      They are going to jail. Its a given in this court. The question is “how long?”

      They have a choice :
      #1 : Contempt of Court, no longer than a year?
      #2 : Federal Capital Crime Conviction, 15 to 30 years?
      ( If I got the length of times wrong let me know, please. )

      Those are the only choices they have.

        Milhouse in reply to assemblerhead. | April 5, 2016 at 2:20 am

        The Feds could solve a lot of the questions by offering immunity as well. They have not and will not. Why?

        Because nobody’s asked them, and because there’s no reason for them to do so. The immunity is automatic. They can’t use testimony compelled in state court, or anything derived from it.

        they want additional material for their turn!

        No they don’t, because they can’t use it, or anything that derives from it.

        This “persecutor” Mosby has no idea what justice is.

        True but irrelevant.

        This judge signaled that he is running a “kangaroo court”.

        In what way?

        Mob violence / Mob rule, are what determines the verdict in his mind.

        He doesn’t determine the verdict. The jury does.

        If he intended anything else he would of approved the “change of venue” motion.

        On the contrary. The defense claimed it was impossible to get a fair jury in Baltimore, and the judge said why don’t we wait and see whether that’s the case. It turned out not to be; Porter was not convicted.

        Hung jury? -> wash,rinse,repeat, ad infinitum.

        What else did you expect? That is how it works. What else would you do? But one acquittal ends it.

        The Constitutional prohibition against double jeopardy does not apply to triple jeopardy, ad infinitum, to this State and Federal Govt.

        Are you seriously suggesting that a mistrial counts as one jeopardy?!

        They are going to jail. Its a given in this court.

        Then why isn’t Porter there already?


        They have a choice :
        #1 : Contempt of Court, no longer than a year?
        #2 : Federal Capital Crime Conviction, 15 to 30 years?

        No, they have a clear choice: tell the truth, the whole truth, and nothing but the truth, as many times as they are asked it. Not only does the truth exonerate them (or don’t you believe that?) but if it didn’t then their evidence could not be used against them, whether in state or federal court.

          assemblerhead in reply to Milhouse. | April 5, 2016 at 9:01 am

          What part of “the law does not apply to us” Govt do you not understand?

          What part of the DOJ and the FBI “lying their asses off” to the courts do you not understand?

          Yes, rigging the jury and repeating a trial until you get the conviction is double jeopardy “ad infinitum”. None of which would be possible to this court if a “change of venue” had been granted. ( The Judge and Persecutor can’t even successfully rig a jury! )

          You don’t understand the “Miranda Warning”. Even a person with NO legal training can understand the intent of the “Miranda Warning”.

          The Judge and Persecutor do not think the “Miranda Warning” applies in their court. Why else are they pushing to force testimony from the accused so hard?

          The intent of the “Miranda Warning” applies to this court and case in a major way. If the accused are smart, they will say nothing.

          Milhouse, you are NOT a licensed lawyer ( obviously ). Please give up the pretensions.

          Milhouse in reply to Milhouse. | April 5, 2016 at 7:25 pm

          The courts and the courts alone determine what evidence is admissible. Neither the DOJ nor the FBI gets a say in the matter. So your reference to government lawlessness is irrelevant. Testimony compelled in state court under a grant of immunity will not be admitted in federal court, and nor will anything derived from such testimony. If there is ever a federal trial the prosecution will have to prove that its evidence was not derived from the defendant’s compelled testimony, or that evidence will not be admitted. It doesn’t matter how lawless they are; they don’t control what gets admitted.

          Yes, rigging the jury and repeating a trial until you get the conviction is double jeopardy “ad infinitum”

          No, it isn’t. So long as there has not been an acquittal you can have as many trials as you like. If you claim that a retrial after a mistrial is double jeopardy then you are lying through your f—ing teeth.

          And you have no basis for your claim that the jury was rigged. On the contrary, the fact that it didn’t convict proves that it wasn’t rigged, and that the judge was right that the defendant can get a fair trial in Baltimore.

          The Miranda warning is irrelevant because nothing the witness says can be used against him. That is what you refuse to understand. He has been given immunity for anything derived from his testimony, and that is binding on all courts, state and federal.

          Just like Heller and McDonald are Supreme Court precedent, and the Federal appellate courts would never DREAM of being in open revolt against THOSE decisions.

          Wait, what? 🙂

          –Andrew, @LawSelfDefense

      sequester in reply to Milhouse. | April 4, 2016 at 3:43 pm

      Milhouse — are you kidding? The Defendants are being prosecuted by the same office granting witness (use) immunity. It is virtually unprecedented. No one before has had the audacity to undertake such a route.

      Hey I’ve got one for you. A defendant robs three people. Why not prosecute him three separate times — once for each robbery?

      What States are you licensed to practice in.

      stevewhitemd in reply to Milhouse. | April 4, 2016 at 4:19 pm

      Milhouse, you’re confused here.

      The state court can’t use what Mr. Porter says against him. According to certain state court legal rulings that you’ve mentioned previously, the Feds can’t either. But while there are some federal guidelines that agree with that (as you pointed out), it’s uncertain enough that, if you were in the same situation as Mr. Porter, you’d be concerned about what the Feds can and can’t do. This is not cut and dried with a USSC rule to settle everything. There’s wiggle room — and when there is wiggle room, a smart prosecutor will get a lever and start wiggling.

      Further, nothing stops either set of prosecutors from using what Mr. Porter says at trial to discover other things, things that they currently don’t know, that they can then tie around Mr. Porter’s neck at his next trial. The prosecutors get the benefit of being educated by Mr. Porter. They get to connect dots, and some dots they’ll learn about only because of Porter’s testimony. You can certainly believe that they’ll make use of that.

      Were I Mr. Porter, I’d cite the 5th Amendment, appeal the contempt citation that surely will follow, and keep my mouth shut.

        Milhouse in reply to stevewhitemd. | April 5, 2016 at 2:10 am

        stevewhitemd, you are the one who is confused. Murphy v Waterfront Commission is not a state ruling or a federal guideline. It is a Supreme Court decision. What’s more, it’s a unanimous Supreme Court decision that a witness cannot get out of testifying in state court for fear that what he says in may incriminate him in a possible future federal prosecution.

          Gremlin1974 in reply to Milhouse. | April 5, 2016 at 7:28 am

          Which can be reversed by today’s SCOTUS on a whim.

          Milhouse in reply to Milhouse. | April 5, 2016 at 7:29 pm

          So can anything. SCOTUS on a whim could say that the fifth amendment is no longer operative at all, and Porter would have to testify without immunity. More to the point, if Murphy were reversed then the law would revert to what it was before then, and what the dissent in Murphy wanted to keep, which was that he has no federal immunity and he still has to testify in state court, and if the feds use that testimony against him it’s his tough luck.

          So you concede that it IS possible that Porter’s testimony in state court COULD be used against him in federal court, despite his having been granted state-level limited immunity.

          Man, why didn’t you just say so in the first place? 🙂

          –Andrew, @LawSelfDefense

    I seem to remember a ruling of 18 months max

    “Contempt of Court has a lot shorter time duration than a criminal murder conviction at the Federal level.”

    Nope.

    A criminal murder conviction, like most other criminal convictions will have a specific length of sentence attached, while being held for contempt of court will be for as long or as short as the judge decides… usually based on the accused refusal not to cooperate.

    Judge says “testify” and you refuse? Expect to be locked up. Judge says “apologize to me in a tutu”? Best get shopping or you are going to get locked up again.

    Most judges are not in the mood to second guess another judge and how they manage their own courtroom.

      If you’re aware of someone doing 20 to life on a contempt charge (a common sentence for murder) I’d be interested in a source.

      Sure, I’ll wait.

      –Andrew, @Lawselfdefense

Andrew, can you comment to the best of your understanding how the limited immunity will, or will not, protect the officers from federal prosecution, please?

    Milhouse in reply to Avraham. | April 4, 2016 at 2:17 pm

    Nothing he says under compulsion in state court can be used in federal court, and nor can anything derived from such testimony.

      But does the State Prosecutor have the authority to make that agreement, on behalf of Federal District Attorneys?

      I believe that is the question.

      And I believe the answer is, “No.” Any immunity the State Prosecutor promises only applies to charges that could (but will not be, per the immunity agreement) filed by the State. Federal charges are a whole ‘nother ball game.

        Milhouse in reply to Archer. | April 5, 2016 at 2:27 am

        But does the State Prosecutor have the authority to make that agreement, on behalf of Federal District Attorneys?

        Yes, he does. Murphy says anything derived from testimony compelled under a grant of state immunity is inadmissible in federal court. And the part of Murphy that said the witness has to testify was unanimous.

      You keep saying this, and it remains untrue. Simply because Federal authorities may in the past have chosen to respect state immunity agreements does NOT mean that they are BOUND to do so in any particular case.

      Oofah.

      –Andrew, @Lawselfdefense

        Milhouse in reply to Andrew Branca. | April 5, 2016 at 2:24 am

        Murphy says they are bound. (And the dissent in Murphy, which said they were not bound, said tough luck, the witness has to testify anyway and take his chances with the feds.)

I think this lands in the Supreme Court ultimately.

    Milhouse in reply to Ragspierre. | April 4, 2016 at 2:29 pm

    No, it doesn’t. The Supreme Court has already had its say in Murphy v Waterfront Commission. Bear in mind that while the Court was split on whether Murphy’s state immunity was binding in federal court, 9 out of 9 justices agreed that had had to testify before the state commission. Nobody supported Murphy’s claim that the fear of federal prosecution should exempt him.

      Gremlin1974 in reply to Milhouse. | April 4, 2016 at 6:48 pm

      I think what Rags is saying is that even I can easily see the Justice Department in its current state and/or under a new democratic administration either challenging or attempting to ignore the precident that you point out, which would mean that it could be sent back to the High Court.

        Milhouse in reply to Gremlin1974. | April 5, 2016 at 2:30 am

        No, it would be quashed by the first federal court it hit.

          Gremlin1974 in reply to Milhouse. | April 5, 2016 at 7:27 am

          What are you Mrs. Cleo’s love child now? Neither you, I, nor even Andrew can predict what any give court is going to do, sometimes I think it depends more on lunch and how long it has been since sex, more than anything else. Courts do things every day that surprise the crap out of me.

          Milhouse in reply to Milhouse. | April 5, 2016 at 7:33 pm

          Murphy is now long-standing and undisputed federal law. A federal court is as likely to ignore it as it is to have the jury stand up and sing “I’m a Little Teapot”.

          It’s “long-standing and undisputed” because it’s so rare for prosecutors to compel testimony from people they intend to bring to trial.

          I wonder if there’s a reason such conduct is rare.

          –Andrew, @LawSelfDefense

      It’s not as if Federal courts have ever distinguished a case before them from a Supreme Court precedent, or that the Supreme Court itself has arrived at a different conclusion in a different factual case.

      Oofah.

      –Andrew, @LawSelfDefense

        Milhouse in reply to Andrew Branca. | April 5, 2016 at 2:30 am

        There isn’t any plausible way to distinguish it. It’s directly on point. And there’s no way the Supreme Court is going to overturn it.

          Gremlin1974 in reply to Milhouse. | April 5, 2016 at 7:22 am

          Now you are just being silly, that was a court from 1964, there is every possiblity that the current court could/would change/reverse that decision.

    sequester in reply to Ragspierre. | April 4, 2016 at 3:53 pm

    Rags — this is rather uncharted territory. Poly furcated trials where defendants are given use immunity to testify against each other are virtually unheard of.

    Since each defendant is being prosecuted by the same prosecutorial office and tried by the same judge — I think the procedure stands the 5th Amendment on its head. But there is little case law. It seems that in all the years of our Republic no prosecutor besides Ms. Mosby dared undertake such a strategy. Of if one did, there is no clear appellate record.

    Maryland’s highest Court can always uphold the procedure in an unpublished opinion. Therefore a precedent is not set. The US Supreme Court may choose to dodge this case because it’s political implications may not make it “ripe” for them to consider.

    I think it is a crying shame. However, Mosby stands a good chance of pulling it off.

      Ragspierre in reply to sequester. | April 4, 2016 at 7:21 pm

      Which is why, despite Milhouse’s case cite, I think this goes before the Supremes.

      They like skating on new ice, and this is novel.

        sequester in reply to Ragspierre. | April 4, 2016 at 9:32 pm

        I don’t know why — but something about this case made me think of Ashe v Swenson. Six men were robbed at a poker game. Defendant Ashe was tried and acquitted of robbing one of the six men. Six weeks later the acquitted Ashe was tried for robbing another of the poker game participants. This time Ashe was convicted.

        In Ashe case, the Supreme Court tossed the conviction under the doctrine of collateral estoppel.

        The legal issues in the Gray case are different. But the prosecutorial technique is the same. Take multiple shots at a defendant through legal manipulation.

      Milhouse in reply to sequester. | April 5, 2016 at 2:32 am

      There was at least one such case, something like 10-15 years ago, in a southern state, I can’t remember which. I don’t think it was appealed, so there wouldn’t be an appellate record.

    dystopia in reply to Ragspierre. | April 4, 2016 at 3:57 pm

    Too bad the ACLU is too political to take up this case. It is rare that one sees a fundamental right subject to such a glaring new interpretation with so little scrutiny.

nordic_prince | April 4, 2016 at 1:26 pm

You’ve got a misspelling – it’s “federal persecution,” not “federal prosecution” 🙂 ~

Does a motion like this require no more “justification” than the assertion listed as #2? Is the granting of this motion totally within the discretion of the trial court?

It seems to me that Mosby continues to add another ring to this circus as time drags on for these officers. Does anybody know how many have died in Baltimore since Freddie? Has this much money been spent on any of those victims? Oh, they did not die while in police custody (Freddie was not even “killed” by the police as I understand the evidence).

    Char Char Binks in reply to TX-rifraph. | April 4, 2016 at 2:11 pm

    Mosby hopes to persuade jurors that having an officer testify “against” another officer is in and of itself compelling evidence of the second officer’s guilt.

      Gremlin1974 in reply to Char Char Binks. | April 4, 2016 at 6:55 pm

      Yep, because she can’t possibly think that these officers are not going to be coached to hell and back before taking the stand. The only way their testimony is going to be valuable is if one of them besses up and contradicts himself or previous testimony, but more likely is that the prosecution will take some fairly innocuous statement and try to convince the jury that it is valuable.

        Char Char Binks in reply to Gremlin1974. | April 5, 2016 at 5:41 pm

        They don’t need to be coached, they just need to tell the truth, and that should convince any fair-minded juror that Mosby has no case, and that it never should have been brought to trial. I think we can hope for at least one fair-minded, law-abiding juror in each trial.

    Milhouse in reply to TX-rifraph. | April 4, 2016 at 2:32 pm

    That’s all it ever takes. Why should it take more? Both prosecution and defense have the right to compel whatever witnesses they believe will help their case, and it’s absolutely routine to do so.

      DaveGinOly in reply to Milhouse. | April 4, 2016 at 9:19 pm

      They have a right to compel witnesses to appear and to give testimony except when doing so violates a witness’s right to not be a witness against himself.

      This is where “immunity” comes in, and I have a problem with it.

      Rights are subject only to “due process” according the Constitution, and SCOTUS says the “process” required by the Constitution is “judicial process,” meaning a trial by jury (or a bench trial if requested) and a conviction for a crime.

      Some time ago, witnesses/suspects offered their testimony in exchange for immunity from prosecution. That is, they voluntarily gave up their right to not bear witness against themselves. At some point, this mode was reversed, and the government began to impose immunity and compelled testimony under duress, effectively taking (without the prerequisite “due process”) the witness’s/suspect’s right to not bear witness against himself.

      I find this problematic. There are many things one can say on the stand that a witness/suspect might prefer not to become public, even if entirely innocent. That person should be able, if so inclined, to refuse an offer of immunity for testimony, and the government shouldn’t have the authority (and the Constitution says it doesn’t have it) to impose immunity while taking a right without due process. This is another case of the tail wagging the dog in this country. A person can always voluntarily surrender a right. Government has no right to take one away without due process, no matter how valuable a commodity it deigns to offer (or impose) in return.

        Milhouse in reply to DaveGinOly. | April 5, 2016 at 2:47 am

        Some time ago, witnesses/suspects offered their testimony in exchange for immunity from prosecution. That is, they voluntarily gave up their right to not bear witness against themselves. At some point, this mode was reversed, and the government began to impose immunity and compelled testimony under duress, effectively taking (without the prerequisite “due process”) the witness’s/suspect’s right to not bear witness against himself.

        Once the witness has immunity he can’t incriminate himself, so there is no right to be taken.

        There are many things one can say on the stand that a witness/suspect might prefer not to become public, even if entirely innocent.

        There is no right to conceal non-incriminating evidence, and there never has been. On the contrary, both sides in a court case have the right to compel testimony, and that right can’t be taken from them, as you would do.

    sequester in reply to TX-rifraph. | April 4, 2016 at 4:07 pm

    Does a motion like this require no more “justification” than the assertion listed as #2? Is the granting of this motion totally within the discretion of the trial court

    Sadly no. While such an order is very unusual the Judge can compel testimony by signing an order. The Law in Judge Williams Courtroom is whatever Judge Williams says the law is. It is for a higher Court to now decide if Judge Williams abused his discretion.

Welcome to Maryland – “The Free State”

I think at this point in time I would have a very bad memory and be saying, I don’t recall or i don’t remember.

    Gremlin1974 in reply to starride. | April 4, 2016 at 7:01 pm

    That would be the worst possible thing that they could do, I am not even a trained lawyer and I think I could convince 12 people that thier “memory lapses” are them hiding their crimes.

    Now they could challenge the compulsion to testify and continue to plead the 5th, but I think that that would have about the same effect as your “memory lapse” suggestion would do.

I have never heard of such a thing. I thought everyone had 5th amendment rights. The case for an appeal is getting stronger no matter what happens. Mosby needs to imprisioned.

    Milhouse in reply to Wylde Byll. | April 5, 2016 at 2:48 am

    Everyone does have 5th amendment rights. Those go away when the witness is given immunity, as in this case.

      sequester in reply to Milhouse. | April 8, 2016 at 5:55 pm

      Sorry, Fifth Amendment rights do not “go away”. Some States by Statute or Case Law have held that “use immunity” affords a person enough Fifth Amendment protection to compel a witness to justify. They hold that the protections afforded by “use immunity” are great enough so that the person is not being is not ” compelled in any criminal case to be a witness against himself”.

      By the way that is a useful Murphy distinction not addressed by the briefs. Murphy considered non-criminal testimony. These cases are criminal in nature.

This is the most corrupt trial I’ve seen.
It beats the Trademark Martin shooting trial by a mile, and we’re just getting started.
The who system is being abused and stacked against these officers.
In the mean-time crime is skyrocketing because all the remaining LEOS are keeping their heads down.
No good can come of this affirmative action fiasco.

What about the issue of civil liability? After the criminal proceedings are over, how much of the defendants’ testimony might be used against them in a wrongful death suit?

    ugottabekiddinme in reply to navyvet. | April 5, 2016 at 12:10 am

    Since each party can be made to testify in a civil case (it’s civil, meaning money only is at stake so no 5th amendment right to be silent), generally, the earlier criminal trial testimony would only come in to impeach the witness’ present testimony if it varied in the civil case from what the person had said in the criminal case.

Font Resize
Contrast Mode
Send this to a friend