Scales of Justice: Criminal Defense

Daily Record again turns to Ahmet Hisim for expert commentary about Freddie Gray murder case in Baltimore

Motions hearings set on recusal, venue in Freddie Gray cases

By: Heather Cobun Daily Record Legal Affairs Writer, August 30, 2015

Original Article

After a summer of combative court filings, the case against the six Baltimore police officers charged in connection with the death of Freddie Gray will begin moving forward in Baltimore City Circuit Court on Wednesday with the first of two pretrial motions hearings scheduled over the course of eight days.

Local defense lawyers not involved in the case say the attorneys for the officers continue to show a united front, including submitting joint motions, with no signs that will change.

“I don’t anticipate any one of these officers will point his or her finger at another officer,” said Steven H. Levin, a former federal prosecutor.

Levin, of Levin & Curlett LLC in Baltimore, said that as in other cases with co-defendants, attorneys for the six officers have likely decided who will argue each motion to avoid wasting time and duplicating efforts.

“It’s not in anyone’s interest to have each attorney argue the same motion,” he said.

Primarily at issue Wednesday will be the defense motions for the recusal of Baltimore City State’s Attorney Marilyn J. Mosby and her office, and to dismiss the case based on prosecutorial misconduct. The defendants, who are not expected to appear in court, have also asked Baltimore City Circuit Judge Barry Williams to have their cases tried individually.

What some see as the biggest issue – whether the trial, or trials, will be heard in Baltimore or another venue – will be heard Sept. 10.

The six officers — Caesar R. Goodson Jr., Garret E. Miller, Edward M. Nero, William G. Porter, Brian W. Rice and Alicia D. White — pleaded not guilty in June to charges ranging from second-degree murder to reckless endangerment in connection with Gray’s death in April from injuries suffered while in police custody, which spawned widespread protests and rioting in Baltimore.

Conflict of interest?

The officers’ lawyers have repeatedly made the argument that Mosby faces conflicts of interest in the case and prosecutors were too involved in the investigation of the officers’ conduct.

Montgomery County criminal defense

Ahmet Hisim, a former Baltimore assistant state’s attorney, said he does not believe the defense argument will succeed that Mosby filed charges in the first place because her husband, Baltimore City Councilman Nick Mosby, represents the district where much of the unrest following Gray’s death was centered, according to a motion filed by the defense attorneys. The motion alleges that Mosby charged the officers to prevent rioting.

Defense attorneys are close to suggesting that Mosby cannot impartially prosecute crimes strongly connected to her husband’s district, Hisim said, which is counter to the goal of having a prosecutor with ties to the community they serve.

“They’re going to have to have something a little more solid than that,” said Hisim, of Jezic & Moyse LLC in Silver Spring.

The strongest arguments in favor of recusal, according to Hisim, are the allegations of conflicts of interest due to ties Mosby and other prosecutors have to the case. Williams quashed subpoenas sought by one of the defense attorneys to call Mosby and other prosecutors to the stand at Wednesday’s hearing.

Still, the officers’ lawyers might still bring up the problems they have alleged in how prosecutors handled the investigation, Levin said, specifically to discussion prosecutors had with an assistant medical examiner prior to her determination of the cause of Gray’s death.

“I think there’s a strategic interest in making that point to the court,” said Levin, who has been critical of Mosby’s handling of the case.

But Warren S. Alperstein said it’s common for prosecutors to talk to experts during an investigation, and that alone is not grounds for recusal.

“It is rare for the defense to argue that a prosecutor should recuse his or herself,” he said. “It’s almost unheard of that the defense would ask an entire office to recuse itself.”

The onus is normally on a state’s attorney to recognize a conflict and recuse themselves, said Alperstein, of Alperstein & Diener P.A. in Baltimore. When the defense requests the recusal, it is an implication that the prosecutor is being unethical by handling the case, he said.

“When you ask someone to recuse themselves, you are implying that they have overstepped their bounds and done something unethical,” he said. “Once you accuse a prosecutor’s office of being unethical, you can’t un-ring that bell.”

Strongest case first

Mosby’s team has requested the officers be tried in two separate groups: those charged with felonies – Goodson, White, Nero and Miller; and those charged with misdemeanors – Rice and Porter, according to court filings.

The U.S. Supreme Court has said a statement made by a defendant that implicates a co-defendant is inadmissible if the defendant refuses to testify because it violates the co-defendant’s right to confront a witness. Lawyers for the officers, in court filings, argue much of the prosecution’s case is based on the officers’ statements.

It will be more challenging for prosecutors to try the case six times, Alperstein said, especially because as time goes on, witnesses memories fade, they can become uncooperative and the case deteriorates overall.

Strategically, whether tried as individuals or in two groups, Alperstein said prosecutors will want to try the strongest case first.

That case, in Alperstein’s estimation, is against Goodson, the driver of the transport van who prosecutors allege saw that Gray was in need of medical attention and denied it and drove recklessly with Gray unrestrained. Goodson is charged with second-degree murder.

Tainted jury pool?

Defense attorneys filed a motion to transfer their clients’ cases to another venue, providing an 84-page memorandum and more than 400 pages of documents to support their argument that the officers cannot have a fair and impartial trial in Baltimore.

Alperstein said the motion to remove the cases is likely the most important one the judge will hear at this point in the proceedings.

“I can’t think of any other case in Baltimore city that is more deserving of being moved to another venue,” he said. “The negative publicity in and of itself is enough to change venue.”

Every potential juror was affected by the aftermath of Freddie Gray’s death, he added, which is argued in the defense motion

“Every citizen in Baltimore was affected at a minimum by the curfew,” he said.

In the memorandum accompanying the defense motion, attorneys argued that as many as 90 jurors could be required to try the six officers separately, as the defendants are requesting, including alternates.

Citing reports of voter registration drives seeking to register young people to get them into the jury pool, the defense asserted, “This is alarming that an infiltration of the potential jury pool with biased individuals is being advocated in public.”

Hisim said there is a competing interest in trying the case among the community where the alleged crime occurred.

Another consideration if the motion is granted is where the case could be transferred, Alperstein said. Only a handful of jurisdictions have the infrastructure to handle the influx of parties, witnesses, media and possible protesters.

“To take it out of the community, this judge is going to have to say there’s no way these officers can get a fair trial in this community,” he said.

University of Maryland law professor Doug Colbert said it is exceedingly rare for a judge to grant a motion for change of venue. The defense faces a very heavy burden of showing not just a great deal of pretrial publicity but that the publicity has been prejudiced against the defendants and community sentiment is that the defendant is guilty, he said.

“I strongly believe in a jury system where, if there’s sufficient evidence that a juror has prejudged the case, they would be dismissed,” he said.

Through more extensive voir dire, Colbert said he believes the officers could receive a fair trial in Baltimore.

“I don’t question for a moment that 12 impartial jurors could be found here,” he said.

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