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Baltimore City State's Attorney Marilyn Mosby. (The Daily Record / Maximilian Franz)

With Freddie Gray case, time might be of essence for defense

The Baltimore City State’s Attorney’s Office has, under the Maryland Rules, until the end of the month to turn over discovery in the Freddie Gray case. But lawyers for the six indicted police officers said last week in court filings they need the evidence as soon as possible to protect their clients’ “fundamental due process rights.”

“Time is not a luxury as the careers, livelihoods and liberty of the Defendants hang in the balance,” the lawyers wrote in opposing prosecutors’ request for more time to respond to various defense motions.

While the defense has used colorful rhetoric in previous court filings, criminal defense lawyers not involved in the case said there are legitimate reasons for wanting discovery sooner rather than later.

“The sooner they get discovery, the sooner they can figure out the state’s strengths and weaknesses,” said Ahmet Hisim, a former Baltimore prosecutor.

Reviewing the evidence allows defense lawyers to track down experts and witnesses they might need at trial, as well as conduct their own investigations if necessary.

“The last thing the defendants want in this case is a delay in the trial,” said Warren S. Alperstein, who is also a former city prosecutor.

Alperstein, of Alperstein & Diener P.A. in Baltimore, noted four of the officers — Caesar R. Goodson Jr., William G. Porter, Brian W. Rice and Alicia D. White — are not receiving a salary while the criminal case is pending because they were charged with felonies.

“It’s a legitimate concern,” he said of the officers not being paid. “Their freedom and their career hangs in the balance.”

The other two officers, Garrett E. Miller and Edward M. Nero, were charged with misdemeanors. All six officers were indicted last month on charges ranging from second-degree murder to reckless endangerment in connection with Gray’s death in April while in police custody, which spawned widespread protests and rioting in the city.

Prosecutors have until June 26 to respond to all of the defense motions after a city judge ruled on their request to have a deadline of July 10.

The officers are scheduled to be arraigned July 2.

Legal observers believe much of the evidence against the officers will be statements from witnesses. In some cases, defense lawyers want proceedings dragged out “because you want people’s minds to change,” said Hisim, of the Law Offices of Jezic & Moyse LLC in Silver Spring.

Steven H. Levin

Steven H. Levin (File photo)

But “the longer things go on, the harder it is to find witnesses,” he added.

One piece of evidence the defense is eagerly awaiting is Gray’s autopsy. State’s Attorney Marilyn J. Mosby said in court filings last week her office plans to seek a protective order “to restrict the dissemination of such sensitive discovery,” including Gray’s medical records.

Steven H. Levin, a former federal prosecutor, said he could think of “no good reason” for prosecutors to attempt to seal the autopsy.

“Ms. Mosby has called for transparency, and now she appears to be contradicting her own policy,” said Levin, of Levin & Curlett LLC in Baltimore. “We are left assuming whatever is in the autopsy is not helpful to her case.”

Hisim and Alperstein said prosecutors might be concerned the release of evidence might taint the city’s jury pool, which could impact their pending argument opposing the defense request of a change of venue for the officers’ trials.

“The more that gets out there, the harder it will be for them to run their argument that these people can get a fair trial,” Hisim said. “Think how devastating it would be if we were seeing pictures of Freddie Gray [from the autopsy] on Facebook.”

In a letter to defense lawyers last week, Deputy State’s Attorney Janice Bledsoe spelled out the terms of a proposal: Prosecutors would get more time to respond to certain  motions in exchange for turning over certain discovery, including the autopsy and medical records.

Defense lawyers interviewed said while it’s not uncommon for sides to negotiate, doing what prosecutors referred to as “bartering” is unusual.

If the defense is frustrated they are not getting discovery to which they are entitled, then it is understandable that they would seek to negotiate,” Levin said.