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With charges dropped, Freddie Gray officers turn attention to civil cases

Though criminal proceedings against the six officers charged in connection with the death of Freddie Gray have concluded, five of them will continue waging a legal battle – this time as plaintiffs.

Marilyn Mosby addresses reporters Wednesday after prosecutors dropped criminal charges against the six officers charged in connection with the death of Freddie Gray. (Maximilian Franz/The Daily Record)

Marilyn Mosby addresses reporters Wednesday after prosecutors dropped criminal charges against the six officers charged in connection with the death of Freddie Gray. (Maximilian Franz/The Daily Record)

Lt. Brian Rice, Sgt. Alicia White and Officers Edward Nero, Garrett Miller, and William Porter filed lawsuits in late April and early May to preserve a defamation claim against Mosby for her statements May 1, 2015 announcing the charges. (Officer Caesar Goodson, the driver of the transport van, had not filed suit in state or federal court as of Friday.)

The suits allege Mosby “rushed to judgment” and sought charges to calm citizens rather than because probable cause existed.

Now that the state has decided not to prosecute his clients, Baltimore solo practitioner Michael Glass said Porter and White’s cases are strengthened.

“I think it supports that there was not sufficient evidence to go forward and our allegation all along was that these charges were not supported by probable cause and they were bought for political purposes,” he said.

David Ellin, Rice’s lawyer, agreed his client’s acquittal helps his civil case – certainly more than a conviction – but the civil case is about what evidence was produced and whether the criminal case should have been brought in the first place.

“I think that the evidence will show that this was done as a political matter and I simply think that [Mosby] was in over her head,” said Ellin, also a Baltimore solo practitioner.

Rice, Nero and Miller filed suit in federal court, where they also alleged false arrest, false imprisonment, and violations of the Maryland Declaration of Rights and federal Constitution; White and Porter filed suit in state court but have been amended and are expected to be shifted to federal court.

Mosby has been granted extensions to respond to the lawsuits but is expected to file an answer in at least one case by Monday.

The criminal process has been difficult for Rice, an 18-year veteran with the department, according to Ellin, who will seek damages for “all the emotional distress” his client endured.

Glass said both his clients were emotionally and financially devastated by the charges.

“All [Porter] ever wanted to do was being a police officer and that’s what he wants to do,” Glass said. “To have that taken away and be shamed without any basis is tragic.”

Joseph T. Mallon of Mallon & McCool LLC in Baltimore, who represents Nero and Miller, did not respond to a request for comment.

New comments

Mosby cited the pending civil litigation as to why she could not take questions during a press conference Wednesday following the dismissal of charges against the remaining officers. But Glass and Ellin believe her extended remarks on the criminal cases support their theory of why the cases were brought.

“My sense is that she’s acting a bit immature,” Ellin said. “She’s tried to blame everyone else but herself and her office and it’s very clear that these officers never should have been charged.”

Anything Mosby says now that the civil cases have been filed is admissible as an admission by a party opponent, according to Ellin.

“In spite of the fact that she knew that she was being sued, she made these statements,” he said.

Glass said Mosby’s remarks about what was accomplished by the criminal cases, such as the launch of a body camera program and use of software to ensure officers acknowledge receipt of new General Orders, are relevant to his clients’ case.

“A prosecutor’s job is not to use the judicial process to affect a change in policy,” he said. “The prosecutor’s job is to prosecute criminal conduct and there were ways to achieve these policy and practice changes without falsely accusing six officers.”

Grand jury complications

At her press conference last year announcing the charges, Mosby claimed the knife recovered from Gray during a search was not illegal and therefore there was no probable cause to arrest him.

Mosby discussed her office’s “independent investigation” into Gray’s arrest and transport along, with her finding that probable cause to charge the officers existed. Chief Deputy State’s Attorney Michael Schatzow and Deputy State’s Attorney Janice Bledsoe, the attorneys who prosecuted the four officers who went to trial, reiterated Wednesday that an independent investigation had occurred in addition to the police investigation.

Glass said he is looking into potential bias during the grand jury proceedings that followed the officers’ charges. He said he expects Mosby to argue the grand jury indictments as well as Baltimore City Circuit Judge Barry Williams’ denial of repeated motions to dismiss charges as proof of the cases’ validity.

But Glass argued the judge was merely giving the cases every consideration at each stage and recognizing the low bar prosecutors had to clear on those motions.

Though grand jury proceedings are designed to be secretive — Williams declined to release portions of the transcript to the defendants after they claimed the process was conducted improperly — Det. Dawnyell Taylor, the lead investigator on the case for the Baltimore Police Department, has said she was uncomfortable with what was presented.

“It’s not difficult to have a grand jury indict if you want them to indict,” Ellin said. “It’s pretty easy to manipulate a grand jury.”

Ellin said the accusations, if true, support his client’s position that prosecutors did not have the evidence to charge his client.

“If they voted to indict based on a faulty narrative, I think it helps us,” he said.

Qualified immunity

The lawyers also expect Mosby to claim she has qualified immunity as a prosecutor to make statements about her office’s work. The principle is in place to allow prosecutors to bring charges and not fear being sued, but Ellin said Mosby loses her immunity when she steps outside of her role as prosecutor.

“I think the big thing in this case is the investigation,” she said. “They acted as investigators.”

Glass agreed there is sufficient evidence to argue Mosby’s immunity should not apply.

“I think we have a compelling case,” he said, “and I think looking at how the trials went, looking at the fact that it appears there was not the thorough, independent investigation that the state’s attorney reported to the people of Baltimore, looking at the fact that the office is lauding the alleged accomplishments that were supposedly, in her opinion, brought about by this litigation, I think that we have a good chance of establishing that immunity doesn’t apply and that she acted outside of the scope of her employment.”