Officers charged in Freddie Gray’s death seek recording of anticipated grand jury proceedings

Lawyers for the six Baltimore police officers arrested in the death of Freddie Gray have requested any potential proceedings before a grand jury be transcribed or recorded.

The lawyers have “concerns” that the investigators behind the charging documents have “misidentified certain facts, as well as the applicable law that should be considered when determining the appropriateness of the charges” against the officers, according to a motion filed Monday in Baltimore City Circuit Court.

Whether a grand jury currently is hearing the charges or is scheduled to hear the charges is not known; a spokeswoman for Baltimore City State’s Attorney Marilyn J. Mosby did not respond to a request for comment. But the defense attorneys, in their motion, say they “anticipate” prosecutors will request grand jury indictments against the four officers charged with felonies: Caesar Goodson, William Porter, Brian Rice and Alicia White.

The indictments would have to come back before the defendants’ scheduled preliminary hearing May 27 in the District Court of Maryland.

“A transcript of the testimony taken before the grand jury, as well as the comments of the presenting prosecutor and the instruction in regard to the appropriate law, will be necessary for the defense to cross-examine those witnesses in a constitutionally effective manner, and to ensure that the defendants have been afforded due process of law,” the motion states.

Several defense lawyers not involved in the case said the filing was unusual because such motions are typically filed after an indictment is handed down.

In Baltimore city grand jury proceedings, a stenographer is on hand but does not transcribe unless it is requested, said Ahmet Hisim, who spent more than two decades in the state’s attorney’s office.

The defense motion is “a stopgap measure to force the state to ensure any testimony is transcribed,” said Hisim, now a criminal defense lawyer with Law Offices of Jezic & Moyse LLC in Silver Spring.

In grand jury proceedings, prosecutors present evidence to jurors without a judge present and hearsay is permitted. The setup allows witnesses to testify without fear of retaliation, but recording means witnesses would be “locked into the testimony” should they testify at trial, said Andrew I. Alperstein of Alperstein & Diener P.A. in Baltimore and a former Baltimore County prosecutor.

“It’s a tool often employed by the state when they expect a witness to change his story later,” said Alperstein, noting prosecutors could then charge a witness with perjury.

The state can also change charges while before a grand jury. Andrew C. White, a former federal prosecutor, said he would have not have argued yet the knife Gray was carrying was an illegal weapon because Mosby and her team can now “maneuver around that” in front of the grand jury.

“I would have waited and sprung that on her,” said White, of Silverman, Thompson, Slutkin & White LLC in Baltimore.

While a grand jury is often viewed as a “rubber stamp” for prosecutors, according to Alperstein, jurors can ask prosecutors tough questions and ultimately decline the request for an indictment. All grand jury members would be city residents, he added, meaning they already might have opinions on all things related to Freddie Gray. A recusal of a grand jury is rare, however, with perhaps the most famous example being in the O.J. Simpson murder trial.

The remaining two defendants, Garrett Miller and Edward Nero, are scheduled to go to trial that day on their misdemeanor charges, but the defense lawyers in Monday’s motion said they anticipate prosecutors will file a criminal information for both and move the case up to Baltimore City Circuit Court.

One name missing among the defense lawyers who signed Monday’s motion is Michael E. Davey, a lawyer for the local Fraternal Order of Police said who criticized the charges the day they were filed and said he was a lawyer for Rice.

Rice is being represented by Davey’s colleagues at Schlachman, Belsky & Weiner P.A. in Baltimore; an FOP spokeswoman said Davey is working on the case as a “point man for logistics and media.”