A Baltimore City Circuit judge Wednesday ordered separate trials for the six police officers charged in connection with the death of Freddie Gray in April after denying defense motions to dismiss the cases and recuse city prosecutors.
Judge Barry Williams, in ordering separate trials, found it was not in the interest of justice to try three of the officers together, and cited doubts that all of the evidence would be mutually admissible.
Caesar R. Goodson Jr., Alicia D. White and Edward M. Nero — charged with second-degree, depraved heart murder, involuntary manslaughter and second-degree assault, respectively — should be tried together in the interest of judicial economy. Garret E. Miller, William G. Porter and Brian W. Rice were to be tried separately under the state’s plan.
Williams questioned the fairness of trying Goodson and Nero together given the difference in their charges, murder compared to misdemeanor assault.
The judge said the six officers were indicted separately and not charged with conspiracy, so it was the state’s burden to show why any of the defendants should be tried together, according to Williams.
The standard for joinder of proceedings is whether all of the evidence will be mutually admissible against each defendant, but joinder may not prejudice a defendant.
Deputy State’s Attorney Janice Bledsoe argued joinder was appropriate because Goodson was at every stop once Gray was placed in the transport van and Nero was at the scene of the arrest and present later at the Western District station where paramedics were called. White, according to Bledsoe, was listening to the radio throughout the incident as a supervisor.
Nero’s attorney, Marc L. Zayon, said the state must show that all evidence is mutually admissible, not just some. Zayon, of Roland Walker & Marc L. Zayon P.A. in Baltimore, also said his client’s charges differ from Goodson and White because Nero is charged with a misdemeanor.
Chaz R. Ball, a lawyer for Goodson, said a joint trial would prejudice his client because he would be unable to cross-examine his co-defendants who made statements against him. Ball, of Schlachman, Belsky & Weiner P.A. in Baltimore, also argued that Nero’s testimony about Gray’s arrest is not relevant to the case against Goodson.
Tony N. Garcia, a lawyer for White, also argued that evidence admissible against White’s co-defendants is not relevant in her case because she was not present.
“She deserves to have a trial based on what she did,” said Garcia, of Bates & Garcia LLC in Baltimore.
Williams ruled from the bench on all three motions. A second hearing on the joint defense motion to remove the cases from Baltimore to another venue will be heard Sept. 10.
The rulings on the motions to dismiss for prosecutorial misconduct and recusal came after defense lawyers for the officers renewed their arguments attacking the credibility of the city State’s Attorney’s Office.
Andrew Jay Graham, in urging Williams to dismiss the charges for prosecutorial misconduct, said he took no pleasure in criticizing the behavior of another member of the Maryland Bar but that State’s Attorney Marilyn J. Mosby violated the Maryland Rules of Professional Conduct.
“The public comments that she made extended beyond the statement of charges,” said Graham, of Kramon & Graham P.A. in Baltimore, who is representing Goodson. “She even discussed whether all of the defendants were or were not cooperating.”
Graham cited Mosby’s statements during a May 1 press conference announcing charges, comments he said adopted the chants of “no justice, no peace” and became tantamount to “no conviction, no peace.”
“She handled this as though it was some kind of pep rally,” he said.
But Chief Deputy State’s Attorney Michael Schatzow said the defense was adding their own meaning to Mosby’s words and twisting her statements.
“The problem with their argument is that Mrs. Mosby didn’t say the things they say she did,” he said.
Mosby did not discuss evidence at the press conference, Schatzow added, but simply read from the statement of charges, a public document.
Williams pointed out that Mosby’s comments on whether the officers were cooperating and giving statements were not appropriate; Schatzow said she was answering questions and those comments were not part of prepared remarks.
Notwithstanding those comments, Schatzow argued it was inappropriate to dismiss charges based on a few words.
In announcing his decision, Williams said Mosby’s words when announcing charges, “while troubling,” did not violate the defendants’ right to a fair trial. Voir dire exists to determine if jurors have been exposed to pretrial publicity and if they are prejudiced against the defendants, he said.
Mosby attended Wednesday’s court proceedings but did not participate in any arguments.
Defense attorney Catherine Flynn, meanwhile, argued the State’s Attorney’s Office should be recused from the case because prosecutors could be called as witnesses due to their involvement in the investigation. Defense lawyers had sought to subpoena prosecutors, including Mosby, to testify during the pretrial hearing, but Williams quashed them last week.
Flynn, of Mead, Flynn & Gray, P.A. in Baltimore, said that when defense attorneys agreed to 15 minutes of argument and no witnesses at the pretrial hearing, they had not yet learned of the extent of the office’s involvement in the investigation.
Flynn also said defendants have not received discovery related to the State’s Attorney’s Office’s independent investigation other than one, two-page document and some photos and videos.
Williams asked Flynn if that argument was more appropriate for a discovery violation rather than a motion to recuse the prosecutor’s office.
Shatzow countered that some of the earliest filings on the issue of recusal mentioned that prosecutors may be witnesses at trial.
Taking the “extreme step of recusing an entire State’s Attorney’s Office should not be taken lightly,” Williams said.
Investigation is one of the jobs of prosecutors, the judge continued, and they have the right to be involved. If defense attorneys can accuse prosecutors of potentially being witnesses and cite that as grounds for recusal, a significant amount of cases would be removed from the jurisdiction where they originated, he said.
Defense attorneys have also accused Mosby of having political and personal stakes in the prosecution of the officers, including the fact that her husband, Baltimore City Councilman Nick Mosby, represents a part of the city significantly impacted by April’s unrest following Gray’s funeral.
Williams called the implication that Mosby’s husband impacted her neutrality was condescending.
“Is the implication that she is unable to think for herself?” he asked.
Before recessing for the morning, Williams spoke about “legal etiquette” in the proceedings going forward, chastising attorneys for name-calling and heightened rhetoric.
Williams said zealous representation must be within the bounds of the law, and read portions of the Rules of Professional Conduct, including the section on candor to the tribunal.
Assertions by either party should not require the court to “spin its wheels on conjecture” and every submission should be supported by legal authority, Williams said, and not be an attempt to get the best sound bite for the media.
The six defendants did not appear in court Wednesday. They pleaded not guilty in June after being indicted in Baltimore City Circuit Court.