(AP Photo/Matt Rourke)
To those for whom justice has long been denied, the criminal cases against the Baltimore police officers indicted in the death of Freddie Gray may seem to be moving at a snail’s pace. But legal experts say the progress is as should be expected.
“People should anticipate that the process is going to be longer and less predictable than they anticipate,” said Jose Anderson, a professor of law at the University of Baltimore. “Very few police are tried under these circumstances so there are not many cases like these.”
“It is proceeding in the most orderly fashion possible under the circumstances,” added A. Dwight Pettit, a veteran Baltimore attorney known for his involvement in major cases. “Nothing’s normal about this case because of the tremendous publicity and the great amount of evidence involved.”
Gray, 25, died April 17 after sustaining several injuries, notably damage to his spinal cord, while in police custody.
In May, after investigations by the Baltimore Police Department and the State’s Attorney’s Office, six officers were indicted in Gray’s death. Officer Caesar R. Goodson Jr., who drove the police van in which prosecutors said Gray sustained his fatal injury, received the toughest charges, including second-degree depraved-heart murder and manslaughter. Sgt. Alicia D. White, Lt. Brian W. Rice and Officer William G. Porter face manslaughter, second-degree assault, misconduct in office and reckless endangerment charges. And the officers who arrested Gray, Edward M. Nero and Garrett E. Miller, face the least serious charges, including second-degree assault, misconduct in office and reckless endangerment.
At this stage, defense attorneys are still reviewing the files and other artifacts proffered in discovery June 26th, that is, they are going over depositions, scientific analyses and all the other evidence gathered by the prosecution in making its case.
And, as a result of that ongoing review, several motions will be filed by both sides—a process that has already begun. Defense attorneys mirrored the state’s attorney’s office in declining to comment on the case. However, court documents show that in the lead-up to the October trial, both sides continue to fire legal volleys in an increasingly volatile exchange.
“It’s going to get more intense,” Anderson predicted. “We’re within a few weeks of trial, which means lawyers on both sides are refining their strategies and trying to prepare themselves to anticipate each other’s moves.”
Defense attorneys fired the first shot in May, filing a motion to have State’s Attorney Marilyn Mosby removed from the case, citing conflicts of interest.
In its response, the State’s Attorney’s Office called the motion a baseless one that “bounces from one ridiculous allegation to another, like a pinball on a machine far past ‘TILT.’”
The defense has also requested a change of venue, citing officials’ promises to seek justice as being prejudicial and intense media coverage as a barrier to finding impartial jurors in the city.
Pettit says that argument is unlikely to work because “the whole world” has seen and read about the case, not just Baltimore residents. And, while some residents may identify with Gray, there are others who may be just as supportive of police.
“I can’t see why you can’t find 12 to 20 persons in Baltimore to say they can reach an impartial decision otherwise, you insult the intelligence of the Baltimore City citizenry,” he said.
Defense attorneys have also accused the prosecution of withholding evidence during discovery.
“After an exhaustive review of the thousands of items contained within this discovery, it is clear that the State’s Attorney’s Office failed to disclose all of the materials obtained during its ‘comprehensive, thorough and independent’ investigation,” the motion read. “Either the state is withholding the information from its investigation, or there was no investigation.”
Prosecutors in turn sought a protective order prohibiting the opposition from leaking evidence to the public. But Judge Barry Williams on July 20th denied that request, saying, “There simply is no basis in the assertions presented to the court for the broad and extraordinary relief sought in the motion.”
In the latest, most vicious exchange of blows, the defense filed motions to throw out the officers statements, claiming they were given under duress and without the officers being advised of their rights; and another to suppress the search and seizure of officers’ departmental cell phones, accusing prosecutors of going “judge shopping” to obtain the warrant.
In response, prosecutors not only denied any legal basis for the defense’s motions, but announced they would be seeking sanctions against the criminal attorneys for their alleged “factual mendacity and legal malarkey.”
The defense went too far, Chief Deputy State’s Attorney Michael Schatzow wrote in his motion: First, in claiming the Circuit Court judge who signed a search warrant was unaware another judge previously refused to sign it, when evidence showed otherwise. Second, in abusing the subpoena process to obtain the personal cell phone records of an assistant prosecutor in attempt to bolster their claims.
“The Defendants continue to mock the integrity of these proceedings, now to the point of brazenly making up false ‘facts,’ baselessly attacking a respected Circuit Court Judge and Assistant State’s Attorney, and shamefully using pleadings devoid of any conceivable merit or basis filed for the sole purpose of generating favorable headlines,” Schatzow wrote.
While the joint cases are set to go to trial beginning in October, both Pettit and Anderson say the defense’s motion for severance—to try each officer individually—could be the game-changer.
“ severing the cases is a little more difficult to predict or apply,” Anderson said. “We don’t know if any of the officers will take the stand or if any of the officers’ statements conflicts the others.”
Added Pettit, “If there are separate trials, it could complicate things and we don’t know what kind of timeline we’d be talking about.”
Either way, Pettit added, this is going to be a “fascinating case to watch.“We’re going to see a lot of turns and twists and nothing in the realm of normalcy.”
James Bentley contributed to the reporting for this story