State Seeks Stay and Certiorari in Remaining Freddie Gray Prosecutions

By Michael Wein

In my January 19 post about the online Court of Special Appeals documents for the prosecution of the officers charged in Freddie Gray’s death, I indicated that, as an inherently “cert-worthy” case, it would not be surprising if one of the parties sought certiorari and it ended up in the Court of Appeals. On Wednesday, that happened, as the Attorney General’s Office sought, in multiple filings (as seen on the Court of Appeal’s “Highlighted Cases” page), expedited review and a ruling that would apply in the prosecutions of the other five officers as to whether the Supreme Court’s opinion in Kastigar v. United States and Md. Code, Cts. & Jud. Proc. § 9-123 allow or prevent the admission of fellow officer William Porter’s previous testimony from his mistrial given that he will be tried again. Also at issue is the authority of the trial judge to refuse to stay three of the officers’ cases after making a pretrial evidentiary ruling relying on the State’s representation that Officer Porter’s testimony was not necessary.

Of course, all this is assuming there is even authority for the prosecution to seek such an appeal prior to a trial commencing for those five officers, given that, usually, such appeals are limited to “extraordinary” circumstances befitting a mandamus petition. See State v. Manck, 385 Md. 581 (2005). And the fun doesn’t end there. Also on Wednesday, the Office filed with the Court of Special Appeals an expedited appellee’s brief on substantially similar issues in Officer Caesar Goodson’s case.

Oral arguments in Goodson are presently scheduled for March 4, so, presumably, the State hopes to have the Court of Appeals grant certiorari before that date. If certiorari were to be granted (though, given three other officers’ objections to the trial court’s decision not to stay their impending trials, the petition will likely be opposed), then it would not be surprising if the State sought through motion or certiorari to have Goodson’s case heard in the Court of Appeals as well. Alternatively, pursuant to Md. Rule 8-304, the Court of Special Appeals could, sua sponte, certify the matter to the Court of Appeals given the common nucleus of facts and legal issues involved.

[Editor’s note: Blog editor-in-chief Steve Klepper had no role whatsoever in the review, editing, or posting of this piece, or the decision to publish it.]