On September 2, all eyes will once again be on my hometown of Baltimore as the case of six police officers charged with the death of Freddie Gray goes to court for pre-trial motions. The outcome of the hearings will likely determine the trial location, type of trial and whether a trial will even occur. As a former prosecutor from the same office trying the case against the officers, my heart is with the prosecutors. As a trial lawyer, my head tells me the prosecutors have a difficult case.
Freddie Gray died from spinal injuries a week after being arrested and found lying unconscious in a police van on April 12. His death caused demonstrations in Baltimore and other cities to protest police violence against unarmed persons. During Baltimore's protests, police arrested over 200 persons and the Mayor imposed a curfew following a state of emergency. Peace returned to Baltimore when State's Attorney Marilyn Mosby announced charges against the 6 officers on May 1.
Ironically, the manner in which Marilyn Mosby brought charges is at the center of one of the defense motions. Defendants seek to recuse State's Attorney Mosby and her office from prosecuting the case, due in part, to her May 1 press conference. Mosby, a public elected official from a family of police officers, ran on a campaign vow to prosecute police misconduct. After her office independently led an investigation, separate from the police department, she found probable cause to charge the officers. Her announcement surprised the City of Baltimore and shocked the Baltimore Police Department. The police officers filed motions shortly thereafter to remove Mosby and her office from the case.
A pivotal motion seeks to change venue and move the trial from Baltimore. In many recent high profile cases, judges denied defense requests for change of venue - as in Dzhokhar Tsarnaev's case ("The Boston Marathon Bomber"). His trial took place near where the bombs exploded during the Boston marathon which killed 3 people, wounded almost 300 and caused a lock down of the Boston area. A judge denied change of venue in the James Holmes trial, the Aurora, Colorado theater shooter, who killed 12 people during a midnight movie showing. And a Charlotte, NC judge denied removal in the recent case involving a police officer who shot and killed unarmed Jonathan Ferrell. It ended in a mistrial.
The court's decision rests on whether the defendants will receive a fair trial in Baltimore--not whether potential jurors know about the case. In a city of over 600,000 residents, the court must determine whether it will likely find 12 fair and impartial jurors, who will decide the case based on the evidence---and not on their impressions from substantial pre-trial publicity.
In no other recent Baltimore case has the change of venue been so intricately linked to the city in more ways than just a legal determination. Much of Baltimore will be waiting for the outcome while holding their collective breath---not wanting a repeat of the April riots. And yet, legal decisions cannot rest on what might happen in the City of Baltimore.
Defendant's motion to dismiss the case is not likely to occur--at least not during pre-trial. Yet, the prosecution will have difficulty proving the second degree depraved heart murder charge based on acts of omissions by Officer Caesar Goodson at trial. The defendants seek separate trials instead of one trial for all 6. Judge Barry Williams must weigh the defendants' concerns against the interests of judicial economy--to save time and try in one trial.
All eyes will focus on Baltimore to see how the city reacts. All ears should focus on the words of State's Attorney Marilyn Mosby. Mosby urged the people of Baltimore to hear her cry for peace as she works to deliver justice to the case of Freddie Gray.
Many people want justice for Freddie Gray. I understand. I want everyone to understand that peaceful protests matter--no matter what a judge decides.