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Judge orders officers charged in Freddie Gray case to be tried separately

Hearing in Freddie Gray case plays out in large, wood-paneled courtroom in Baltimore.

A circuit judge ruled Wednesday that the case against six Baltimore police officers charged in the arrest and death of Freddie Gray will go forward in separate trials, with Baltimore State's Attorney Marilyn J. Mosby remaining at the helm of the prosecution.

During a day of hearings in a downtown courtroom, Judge Barry Williams swiftly sliced through complex legal arguments in the first motions hearing. In three key rulings issued from the bench, he refused to dismiss the charges or recuse Mosby and decided that the case should be split to ensure that each officer gets a fair trial.

Williams said that trying the officers together would not be "in the interest of justice" because key evidence that's admissible with regards to one officer may be inadmissible for another. The officers are charged with a range of offenses, from murder to misconduct, as each played a different role in Gray's arrest and transport.

The case has sparked widespread protests in Baltimore — which continued Wednesday — and has become part of a national dialogue about police treatment of black citizens. Gray, 25, died in April one week after suffering a severe spinal cord injury while in police custody.

Outside the courtroom, dozens of protesters gathered in peaceful demonstrations and marches through downtown that resulted in one arrest and snarled traffic. Even at this early stage of the court proceedings, organizers said they wanted their voices heard.

"It's a step in the right direction," Malcolm Wilson said of Williams' rulings on defense motions to recuse Mosby and dismiss the case. The 23-year-old East Baltimore resident, who said he knew Gray, clutched a white cardboard sign that read, "I am here for Justice for Mr. Gray."

Police, who had been criticized for their response to previous demonstrations and rioting, repeatedly ordered protesters to "remain on the sidewalk" and quickly responded to one tense moment near the Inner Harbor in which a protester was arrested and an officer suffered minor injuries.

Interim Police Commissioner Kevin Davis said police wanted to treat "a protest like a protest," and that "by and large, that's exactly what happened." Mayor Stephanie Rawlings-Blake praised the department, saying she and police "will vigorously defend the First Amendment rights of the protesters, but we will also vigorously enforce the order in our city."

In the courtroom, filled with legal observers and media after months of sharply written legal filings filled with accusations lobbed between the defense and prosecution, Williams sought to maintain order.

He stopped the proceedings to remind those present to turn off all electronics, warning that he would remove everyone but the attorneys. He frequently interrupted the attorneys during their arguments, to seek clarification on a key point, wryly disagree or keep the attorneys on topic.

The officers had waived their rights to attend Wednesday's hearing, and Gray's family did not attend.

While the oral arguments on the dismissal and recusal motions largely reflected those made in written filings — which often centered on Mosby's actions — the arguments over whether to try the officers separately provided new insights into defense and prosecution theories.

Officer Caesar R. Goodson Jr., the driver of the police van in which Gray was injured, is charged with second-degree depraved-heart murder. Sgt. Alicia D. White, Lt. Brian W. Rice and Officer William G. Porter are charged with manslaughter. Officers Edward M. Nero and Garrett E. Miller face lesser charges, including second-degree assault. All six have been charged with misconduct in office.

Partially redacted statements by several of the officers were submitted to the court on Wednesday, though under seal, as were police dispatch tapes.

Prosecutors previously indicated that they wanted to try Goodson, White, Nero and Miller together in one trial, and Porter and Rice together in a second trial.

However, at the hearing Wednesday, they only sought to have Goodson, White and Nero tried together. Deputy State's Attorney Janice Bledsoe argued that much of the evidence in the case was relevant to those three officers.

She said all of the evidence related to what happened to Gray from his arrest to his arrival unresponsive at the Western District police station would be needed to prove reckless endangerment on their part.

But Marc Zayon, Nero's attorney, said Gray's arrest and transport constituted two separate incidents. He said evidence brought to support the felony charges against Goodson and White, including expert witness testimony on Gray's injuries sustained in the van and evidence regarding how Goodson was driving, would be highly prejudicial if introduced in a case against Nero.

Defense attorneys also raised concerns that statements by the officers could incriminate one of the co-defendants, pitting one's right not to take the stand with another's right to confront his or her accuser.

Matthew Fraling, an attorney for Goodson, also said he was concerned about a "transfer of guilt" and a "spillover effect" in the minds of jurors trying to categorize evidence against different defendants.

In denying the state's motion to join the cases, Williams agreed that much of the evidence would not be "mutually admissible." His ruling means there will be six trials.

Arguments over dismissing the charges and recusing Mosby came after a flurry of heatedly written motions over the past four months. In court Wednesday, Williams cautioned both sides to tone down their rhetoric.

"The unnecessary name calling and over-the-top rhetoric to which this court has been required to wade in order to get to the heart of the legal issues in this case is remarkable," Williams said.

Moving forward, he said, attorneys should be mindful of crafting fact-backed arguments in a way that will "assist the court in understanding the legal issues — not to get the best media sound bites."

Many of the most contentious filings have been made over Mosby's actions, particularly when she announced charges against the six officers from the steps of the Baltimore War Memorial on May 1. "To the people of Baltimore and the demonstrators across America, I heard your call for 'no justice no peace,'" she said at the time.

Mosby spoke less than a week after protests turned into clashes with police and rioting, looting and arson across the city, resulting in more than 100 police officers being injured, more than 400 damaged businesses, and hundreds of arrests. Rawlings-Blake responded by imposing a citywide curfew, and Gov. Larry Hogan deployed the National Guard.

Andrew Graham, a defense attorney for Goodson, argued that Mosby "adopted and encouraged the public's cry of 'no justice, no peace,'" and that her statements tainted the jury pool.

"She handled this as though it was some sort of pep rally," Graham told Williams.

Catherine Flynn, a defense attorney for Miller, also argued that prosecutors in Mosby's office became witnesses in the case through their independent investigation of Gray's death, conducted apart from the police investigation.

The defense had asked the judge to dismiss the charges because of "prosecutorial misconduct."

Chief Deputy State's Attorney Michael Schatzow said Mosby's comments at the War Memorial were taken directly from a statement of charges and that Williams should consider the words she spoke and not accept the defense's "gross distortion of what she said." Schatzow said any effort to calm the unrest throughout the city served a "legitimate" law enforcement purpose.

Schatzow also argued that prosecutors had no conflicts of interest, noting prosecutors regularly perform investigative tasks.

Williams disagreed that calming the city was part of Mosby's job, and admonished Mosby for telling the media that some but not all of the officers had cooperated during the investigation. The defense argued that her comments hurt their clients' case.

"It's inappropriate, and you know it," Williams said to Schatzow.

But Williams said it was not within his authority to decide whether Mosby had broken the Maryland Lawyer's Rules of Professional Conduct, which guide attorney behavior. That was for the attorney grievance commission to decide, he said. The commission investigates and prosecutes alleged violations of the rules.

"While the day may come, or may not come, when the words of the state's attorney will be assessed, parsed, and dissected for the purpose of determining if there were violations of the rules of professional conduct, today is not that day," he said.

Williams said the voir dire process of jury selection, in which jurors are asked what they know about the case, would play an important role in assessing the impact of Mosby's statements.

While Williams called the defense argument that Mosby suggested the officers are guilty and made herself a witness in the case by reading the statement of charges "mind-boggling," he said the argument that prosecutors had turned themselves into witnesses could have merit. Nonetheless, he said the issue did not merit the prosecutor's recusal and could be handled at a later date.

Williams said the defense claims of conflicts of interests by Mosby and other prosecutors "didn't come close" to meriting their removal from the case.

He chastised lawyers who alleged a conflict on Mosby's part because her husband, Nick Mosby, serves as a city councilman in the district where Gray was arrested. He called that allegation "troubling and condescending."

Williams left open the question of how the trials will be scheduled moving forward. Their timing will likely depend on how the judge rules on another defense motion to have the cases moved out of Baltimore, which is scheduled to be discussed at a second hearing next week.

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