Rationales on the way for per curiam orders in the cases of officers charged in death of Freddie Gray

By Michael Wein

On March 8, the Maryland Court of Appeals issued two per curiam orders, found here and here, in the cases of the police officers charged in the death of Freddie Gray — yet the reasons underlying the orders (which permitted the State to have Officer William Porter testify, prior to his own retrial, against all his fellow officers) remain a mystery. As reported in various media outlets, that became a problem for the trial judge last week when, based on the per curiam orders, he granted the State’s request to have another officer testify as a witness before his trial. The defense counsels reserved the right to reargue the matter after the high court provided its rationales for the orders.

The U.S. Supreme Court’s decision in Ex parte Quirim, 317 U.S. 1 (1942), provides a reason for why the underlying substantive opinions will likely be issued prior to the start of Officer Edward Nero’s trial, presently scheduled to begin on May 10. Decided in the heat of World War II, Ex parte Quirim involved captured Nazi saboteurs who were tried and convicted in the newly established military-tribunal system. The Supreme Court granted certiorari to consider the constitutionality of the system, had expedited oral arguments, and then issued a per curiam decision on July 31, 1942. See Congressional Research Service Report—“Military Tribunals—The Quirim Precedent (March 26, 2002). The decision upheld the tribunal procedures that produced death sentences for six of the eight saboteurs.

The reasons behind the Supreme Court’s per curiam decision were laid out in an Oct. 29, 1942, opinion. Problem is — and why the Supreme Court was roundly criticized after the decision — the executions had taken place more than two months earlier, on Aug. 8, 1942. I don’t think Maryland’s high court will allow such questionable timing to occur here. I would be highly surprised (shocked, really) if the Baltimore City trials resume prior to the issuance of a full appellate opinion giving the lower courts the rationales for the decisions, particularly now that the prosecution is seeking to have at least one additional officer testify prior to his own trial.

The Court’s per curiam opinion establishes that the State won on the “merits,” though we do not yet know which merits. Officer Porter’s original interlocutory appeal occurred after his mistrial when the State sought — despite Fifth Amendment concerns — to have his testimony in the other officers’ cases, and the trial judge agreed. In arguing that it could require Officer Porter to testify by granting him “use and derivative use” immunity pursuant to Md. Code, Cts. & Jud. Proc. § 9-123, the State advocated for a broad interpretation of the statute that would, consistent with the federal statute, eliminate discretion of the trial judge to refuse a prosecution request. But Maryland does not generally have the resources the federal government has to set up a “Chinese wall” among prosecutors to ensure that a defendant who testifies with use and derivative use immunity in one proceeding does not have his Fifth Amendment rights against self-incrimination violated in his own trial. The federal government has enough untainted counsels to try different defendants, unlike the Baltimore prosecutors, who originally anticipated handling all the cases involving the different officers.

It’s also unclear how the Maryland Court of Appeals resolved the “appealability” issues in favor of the prosecution, as the per curiam opinion indicates. As my previous post of March 3 noted, the defendant officers, through counsels, seemed particularly irked that the Court of Appeals had — prior to the Court of Special Appeals’ consideration of Officer Porter’s appeal — granted certiorari on the State’s challenges to pretrial rulings in three of the other officers’ trials that (1) Officer Porter would not be permitted to testify (based on the State’s previous indication that he was not a necessary witness), and (2) the proceedings would not be postponed while Officer Porter’s appeal was adjudicated. This aggravation was due in large part to Maryland statutory and case law severely restricting prosecutors from seeking immediate appeals of a trial court’s rulings. See State v. Manck, 385 Md. 581 (2005) (seemingly precluding the State from appealing, without a statutory basis, in a criminal case proceeding).

There are two possible results; either (1) the Court adopted at least one of the Maryland Attorney General’s arguments that there was jurisdiction based on the quasi-civil nature of the issues (ignoring that the filings were entirely within a criminal case, and instead concluding that the “real” issues were of a “civil” nature), or (2) the Court’s opinion on any “appealability” concerns will be limited to the unusual facts of the case and rest on grounds that no one had specifically argued. The State’s insistence that its appeal of the trial judge’s orders was really of a “civil” nature is understandable, in that appeals in criminal actions are even more circumscribed than the highly circumscribed interlocutory and “appealable” orders permitted in civil cases. One way that appeals in criminal cases are permitted is if, under the collateral-order exception, there is some “important issue” (often involving a type of privilege or concrete constitutional right) raised by a third party (such as an important witness) that would otherwise be moot if the case were to proceed normally to trial. This is done, for example, when journalists are sought to give testimony but may have a First Amendment or statutory reporter privilege. Officer Porter is the type of the third-party witness that could, and did, seek an interlocutory appeal to the Court of Special Appeals.

But it’s problematic that the State sought to appeal orders in the other officers’ trials. Maryland precedent and Rules rarely permit a party in a civil case to seek an interlocutory appeal of a non-final judgment. The related exceptions for permitting interlocutory appeals are rare — for example, when it involves a “high executive,” such as the Maryland Governor’s office, claiming “executive privilege” in discovery documents. See Ehrlich v. Grove, 396 Md. 550 (2007); see also State v. Keller-Bee, 224 Md. App. 1 (2015), certiorari granted 445 Md. 487 (Dec. 18, 2015) (granting, under collateral order doctrine, interlocutory appeal of denials of dispositive motions seeking absolute immunity by judiciary employees); Maryland Bd. of Physicians v. Geier, 225 Md. App. 114, 143 (2015), certiorari granted (April 22, 2016) (“[W]e have appellate jurisdiction to decide the validity of the discovery order of June 17, 2014, and of no other order. Under Snowden, we do not have jurisdiction to consider or decide unrelated orders, such as the subsequent order of default or other orders pertaining to the merits of the case, merely because we have jurisdiction to consider a collateral order, such as the discovery order.”).

I do not know how the Court of Appeals will explain its grant of certiorari to the appeals of Officers Brian Rice, Nero, and Garret Miller, given their nearly pure interlocutory nature. It is possible that a “left field” explanation will be given by the Court. In many matters that are time-sensitive and interlocutory, the Court will prefer to give a reason that does not “open the door” to many other future interlocutory appeals.

Given that the Court will be releasing an opinion on Cts. & Jud. Proc. § 9-123, it may feel that appealability arguments regarding the State’s appeals will be moot. Further, although technically the six officers’ cases were never consolidated and are being tried separately, the legal issues and many of the factual issues are quite similar. It is possible that, though not directly set forth in current Maryland law, is that the Court will recognize a type of “pendant jurisdiction” in some cases that are “inextricably intertwined.” This is used in federal court in similar circumstances.  See Nationwide Mut. Ins. Co. v. Hart, 73 Md. App. 406, 414-15 (1988) (recognizing that “federal courts often exercise pendant jurisdiction to consider an otherwise nonappealable order when it is inextricably bound with or closely related to an appealable order” but noting that “Maryland courts have not expressly referred to or applied the federal court’s pendant jurisdiction rule” and finding “no authority to support our exercise of pendant jurisdiction [in the case]”).

[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.]

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