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Officer requests to see knife as part of defense in Freddie Gray case

The attorney for a Baltimore officer charged in the death of Freddie Gray filed a motion.

A defense attorney for one of the six police officers charged in the death of Freddie Gray is challenging prosecutors' claim that Gray was falsely arrested, and filed a motion Tuesday demanding to inspect the knife Gray carried.

The motion was the first legal move in defense of an officer involved in the April 12 arrest of Gray, who died a week later from spinal injuries suffered while in police custody.

As potential legal arguments for the six began to emerge, legal analysts debated the merit of the specific charges, as well as the strategies defense attorneys might pursue.

Marc L. Zayon, the attorney for Baltimore officer Edward Nero, asked a judge to make the Baltimore state's attorney's office and Baltimore police turn over the blue pocket knife Gray carried to determine whether it's legal in the city of Baltimore. The knife was found clipped to the inside of Gray's pants pockets after officers took him down.

Police say the officers chased and arrested Gray because he ran from them without being spoken to or provoked. A police task force continues to investigate whether any other reasons could have contributed to their decision to stop him.

Gray was charged with carrying an illegal knife, but Baltimore State's Attorney Marilyn J. Mosby said Friday in announcing the charges that the knife Gray carried was not an illegal switchblade under Maryland law. Baltimore police have said the knife violates city code.

Nero, 29, a three-year police veteran, is facing two counts of second-degree assault, two counts of misconduct in office and a charge of false imprisonment. Police say he was one of the three officers on bike patrol who made eye contact with Gray on North Avenue and Mount Street, and was among the officers who apprehended him at Gilmor Homes in West Baltimore.

Police have not conclusively determined how Gray was injured, though they suspect he was hurt riding in a police transport van. Prosecutors allege his hands and feet were cuffed and he wasn't wearing a seat belt, a violation of departmental policy.

Gene Ryan, president of the Baltimore police union, said last week that none of the officers are responsible for Gray's death, and the union's attorney called the charges an "egregious rush to judgment."

Nero was one of three officers who Mosby said failed to establish probable cause to arrest Gray, a contention his attorney disputed.

"The State baldly asserts that 'the knife was not a switchblade knife and is lawful under Maryland law,'" Zayon wrote in the motion filed in Baltimore District Court. "The State further suggests that the Defendant 'failed to establish probable cause for Mr. Gray's arrest, as no crime had been committed.'"

Zayon contests Mosby's claim that officers illegally arrested Gray, and he said an inspection of the knife will show it was illegal.

State law says a person may not "display" a "switchblade" or a "knife or a penknife having a blade that opens automatically by hand pressure applied to a button, spring, or other device in the handle of the knife."

Baltimore City code says a person can't carry or possess any knife "with an automatic spring or other device for opening and/or closing the blade, commonly known as a switch-blade knife."

A Baltimore police task force, commissioned to investigate Gray's death, analyzed the knife and determined that it was "spring assisted" and in violation of the city's law.

Many activists, protesters and city leaders say the distinction is irrelevant because officers didn't know or suspect that Gray had the knife on him. They, like Mosby, say there was no probable cause to stop him.

In a statement Tuesday, Mosby said "the evidence we have obtained through our independent investigation does substantiate the elements of the charges filed."

She chastised anyone in "law enforcement with access to trial evidence, who has or continues to leak information prior to the resolution of this case."

"These unethical disclosures are only damaging our ability to conduct a fair and impartial process for all parties involved," she said.

Her spokeswoman did not return an email asking what disclosures Mosby was talking about.

A communication gap between police and prosecutors became clearer Tuesday when Baltimore Police Commissioner Anthony W. Batts told CNN in an interview that he didn't know the state's attorney's office was planning to file charges until 10 minutes before Mosby announced them Friday.

"She didn't want to be seen connected to the police organization, so the communication was limited as compared to what I'm used to," Batts told the cable network.

Most of the six officers facing criminal charges have retained attorneys, court records show. Jail records show they were booked in an "expedited" manner while many protesters who were arrested during last week's riot complained about spending more than 24 hours without a bail hearing.

Caesar R. Goodson Jr., the police transport van driver, is the only officer of the six charged with murder. Prosecutors say he ignored Gray's requests for medical help multiple times. Goodson faces charges of second-degree depraved heart murder, manslaughter, two counts of manslaughter by vehicle, second-degree assault and misconduct in office.

Goodson, 45, is the only officer who did not provide police with an initial statement, investigators say. He has been a Baltimore police officer since 1999.

Attempts to reach Goodson were not successful, and attorneys for the other officers couldn't be reached.

Byron Warnken, a University of Baltimore law professor, said Goodson's decision not to speak is within his constitutional rights and will not affect how a jury perceives him.

"You cannot let a jury know that someone stood on their constitutional rights," Warnken said.

He said anything officers disclosed to police initially may be inadmissible if they were ordered to answer questions as part of their job, disclosing what took place while on duty. If any statements were given "under duress," Warnken said, they can only be used internally by police to determine whether officers should face suspensions, termination or other sanctions.

Warnken said he expects the officers' attorneys and prosecutors to at least discuss plea negotiations — typical in nearly all criminal cases — even if defendants ultimately choose to go to trial. He said plea discussions don't necessarily mean officers will turn on each other to gain legal leverage.

"Certainly if I'm a lawyer and I represent one of the six, my goal is not to hurt or help one of the others. My goal is to help my client," he said.

Other legal analysts also discussed possible defense scenarios and strategies.

Baltimore defense attorney A. Dwight Pettit said if he were representing any of the officers, he would examine their statements to see whether any incriminated another — which could be cause to hold separate trials.

He thinks Mosby will be able to prove charges against the six officers, but he also said he saw solid arguments the defense could use.

Pettit said he would first ask for a change in venue so that any trial might be held outside Baltimorethen dispute prosecutors' accusation that Goodson acted in total disregard for Gray's well being.

"Any time you get to second-degree murder, that requires specific intent," Pettit said.

Pettit said he would also seek an independent autopsy.

"Everything else sort of depends on what the facts are," he said. "A good defense lawyer would have to look at what's in the indictment and what the facts upon discovery would be."

Baltimore Sun reporter Colin Campbell contributed to this article.

jgeorge@baltsun.com

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