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How will judge decide Freddie Gray venue question?

Publicity from 6 trials might impact next week's arguments

Local defense attorneys said they were not surprised by Wednesday’s rulings on several pretrial motions in the case against the six officers charged in connection with the death of Freddie Gray. But the rulings, they say, do not necessarily foreshadow how the judge will rule on whether to try the defendants in Baltimore.

Baltimore City Circuit Judge Barry Williams denied two defense motions in the morning — dismissal for prosecutorial misconduct and recusal of the Baltimore City State’s Attorney’s Office — and then denied the state’s motion for joinder in the afternoon, ruling each defendant will be tried individually. All rulings were made from the bench after a brief recess.

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Williams also admonished attorneys for the tone of the filings and prohibited personal attacks in the future.

“This case probably set a speed record for becoming a street brawl between the lawyers,” said Jacob S. Frenkel, a former federal prosecutor.

It was the duty of the judge to remind attorneys about the Maryland Rules of Professional Conduct as well as encouraging more civility in the future, according to Frenkel, of Shulman, Rogers, Gandal, Pordy & Ecker P.A. in Potomac

The defense attorneys were practicing “zealous advocacy,” according to former federal prosecutor Ty Kelly, which led to some of the combative pleadings in the case, but Williams clearly wants to move things forward with less heightened rhetoric.

Kelly, of Biran Kelly LLC in Baltimore, said Williams’ decision to rule from the bench rather than issuing written opinions on each motion likely reflected the quality of the pleadings filed ahead of the hearings. The judge also allowed each side 15 minutes for argument on each motion in the morning.

“With that many pleadings, there’s not much more to say,” she said.

Frenkel said the timing of Williams’ decisions also showed he had a high level of confidence in his analysis.

“The only thing that was somewhat surprising, although a correct ruling, was the decision to provide separate trials for each of the defendants,” he said.

Frenkel said the prosecutors’ request to try 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 — indicated to him they see evidentiary weaknesses in their case.

“I think in a case of this profile, there is very much the risk of potential prejudice associated with the evidence of one defendant spilling over to another,” he said.

Pretrial publicity

Though it doesn’t speak to judicial economy, Towson solo practitioner Richard M. Karceski said Williams’ decision to try each officer separately showed his understanding of the importance of the right to a fair trial.

“Frankly, I think it would have been unfair to try any of them together,” Karceski said.

But the publicity that could come from six trials could impact next week’s arguments on a joint defense motion for a change of venue, according to Karceski and Kelly.

More trials require more impartial jurors and, because the trials are unlikely to be simultaneous, a potential juror for the sixth trial will be exposed to information about the earlier trials, Karceski said.

However, Karceski said he doesn’t believe the judge will change venues without at least attempting to impanel an impartial jury in Baltimore first.

If the defense request for removal is granted, the next question is where the cases should be heard.

“There’s no jurisdiction I can think of that would want these cases,” Karceski said.

Frenkel said there is no rule that the cases must all go to the same place, and argued the most fair solution might be to divide the trials between six other jurisdictions.