Hype surrounds hearing as Freddie Gray case heads to court

What's all the hype around the Freddie Gray hearing?

After months of sharply worded motions by prosecutors and defense attorneys, legal questions surrounding the officers charged in Freddie Gray's arrest and death will be aired publicly for the first time Wednesday in a solemn, wood-paneled courtroom in downtown Baltimore.

Six police officers stand accused in the case, which has captured the nation's attention due to the protests and rioting that followed Gray's death and the broader, nationwide conversation about alleged police brutality against young black men. The hearing is expected to attract a swarm of local and national media, with television trucks staging near City Hall and reporters being corralled onto a corner at the intersection of Fayette and Calvert streets for interviews.

The officers are not expected to appear at the hearing, which will focus on legal challenges to the charges. Defense attorneys are seeking to dismiss the case, or to remove Baltimore State's Attorney Marilyn Mosby from the prosecution. Prosecutors, who have called the defense claims baseless, will press Circuit Judge Barry Williams to move the proceedings forward. Both sides will debate whether the officers should be tried together or separately.

As the hearing nears, court officials have set rules to maintain order, just as police and city officials have made plans to handle any protests or unrest. A "Security/Media Protocol Order" from the Circuit Court's administrative judge outlined heightened security at the courthouse, specific restrictions on members of the news media and expected courtroom decorum. The Baltimore sheriff's office, meanwhile, plans to ensure order with "an increased presence" of deputies inside and outside Courtroom 234, a windowless space on the second floor of Courthouse East.

"We're working in concert with our partners, with Baltimore City and the other law enforcement partners from around the state," said Major Sabrina Tapp-Harper, a spokeswoman for the sheriff's office. "At this point we're not anticipating any issues. However, we're prepared in the event that anything should go wrong."

Gray, 25, suffered a severe spinal cord injury while in police custody, and his funeral April 27 was followed by rioting, looting and arson. With the city on edge, Mosby announced charges against the six officers from the stairs of the Baltimore War Memorial on May 1. Her office says that action calmed a chaotic city, but defense attorneys criticize her approach as grandstanding.

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.

The officers — who have all pleaded not guilty — waived their rights to attend Wednesday's hearing. Gray's family will not be there, either, according to their attorney. Witnesses are not expected to take the stand, because Williams quashed defense subpoenas that called for a string of witnesses — including police officers, investigators, prosecutors and medical examiner's staff — to appear.

Still, the hearing could shift the course of the case, legal observers said.

Defense attorneys say the case should be dismissed because of "prosecutorial misconduct" by Mosby, who, they say, breached her obligation to ensure a fair trial by the way she announced the charges. Short of a dismissal, they will argue that Mosby and other prosecutors in her office should be recused for having made themselves witnesses, by allegedly straying from their role as attorneys during an investigation that ran parallel to the official police probe.

Prosecutors, in turn, will argue that those claims are baseless attempts to distract the court's attention from the real issue — the officers' culpability in Gray's death — and that Mosby and other attorneys in her office have no conflicts.

During another stage of the hearing, prosecutors will ask that the officers be split into two groups — four in one, two in the other — for separate trials. The defense will request six individual trials.

None of the defense attorneys responded to a request for comment. Rochelle Ritchie, a spokeswoman for Mosby, said in a statement that the state's attorney's "responses to the defendants' motions speak for themselves and we are prepared to argue them in court."

The most dramatic turn at the hearing would be for Williams to grant the defense motion for dismissal, but legal observers said that's unlikely.

More likely, they said, is that the discussion about the number of trials will grab attention by providing new information about the case — such as whether the officers made incriminating statements about one another.

"I would expect the government to have to reveal a bit about the theory of prosecution and the theory of guilt for the individuals as they relate to one another," especially in a case where there is no underlying charge such as conspiracy, said Amy Dillard, who teaches criminal law and criminal procedure at the University of Baltimore.

David Jaros, also a University of Baltimore law professor, said defendants are often granted separate trials when previous statements they have made implicate themselves or each other. Attorneys in the case may have to discuss those conflicts — and the statements — in court.

The issue "has to do with who stated what about whom ... so we might get some clarity on that," Jaros said.

While Williams has limited arguments on the dismissal and recusal motions to 15 minutes per motion per side, he has not put a time limit on arguments about severing the trials.

Kurt Nachtman, a defense attorney and former prosecutor in Baltimore, said defense attorneys and prosecutors will be addressing Williams in an "appellate style," so he will have free rein to cut them off to clarify any issues that weren't fully explained in the lengthy written motions.

"Judges usually end up peppering both sides, so you're going to see a series of questions probably coming from the bench toward both parties," he said. "Sometimes you go into these arguments and judges have clearly made up their minds. I've never found that to be the case with Judge Williams."

Williams could rule on any of the motions from the bench, but might also "hold his decision for a day or two," Nachtman said. "He's a thoughtful judge, and he's going to spend his time to make sure he makes these decisions correctly."

The defense attorneys and prosecutors will face Williams from tables toward the front of the courtroom. Behind them, judiciary officials expect the 31 wooden benches to be filled with journalists and members of the public, who will be seated on "a first come/first-served basis," according to Administrative Judge W. Michel Pierson's order.

No audio or video recording will be allowed, and phones and other devices must be turned off inside the courtroom — standard restrictions in Maryland. Sheriff's deputies will increase patrols on the second floor of the courthouse, and no one will be allowed to "loiter," the order says.

"The judiciary, both Judge Pierson and Judge Williams, are wise to define the boundaries of the environment where the case is to be tried. Nobody wants to be caught by surprise in a high-profile case," said José F. Anderson, a University of Baltimore law professor. "You want to make sure that the environment is stable, because other people are being tried that day, other people are entitled to their day in court, other proceedings have to occur other than Freddie Gray."

Inside the courtroom, Williams is unlikely to reveal his opinions before he decides to rule, Anderson said. "Even the questions he asks might not give a hint as to exactly where he's going," he said.

Dillard, who trains lawyers for court, said the actions of the prosecutors and defense attorneys will be "personality driven," but they will likely be more contained than their pointed filings would suggest.

When arguing before a judge, she said, she always recommends to her students a calm, fact-based approach — as shown by the seasoned attorneys who argue before the U.S. Supreme Court.

"I train them as best I can to maintain a poker face, to maintain decorum, to stay polite and focused on what they are doing, because I think it plays better than theatrics," she said. "Once somebody has had to resort to theatrics, they must not have substance left to argue."

krector@baltsun.com

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Barry Glenn Williams

Age: 53

Title: Associate judge, Baltimore City Circuit Court, since December 2005

Career highlights: Led court's criminal division from 2012 until January. Chaired Criminal Justice Coordinating Council for Baltimore, 2012-2014. Special litigation counsel for the civil rights division of the U.S. Justice Department, 2002-2005. Trial attorney in the civil rights division of the U.S. Department of Justice, 1997-2002. Assistant state's attorney in Baltimore, 1989-1997

Education: Bachelor's degree in history from the University of Virginia, law degree from the University of Maryland School of Law

Key dates

•Sept. 2 hearing on motions for:

Dismissing the case for prosecutorial misconduct

Recusal of Baltimore State's Attorney Marilyn Mosby and other prosecutors

Determining whether the six officers should be tried together or separately.

•Sept. 10 hearing on motion to move the officers' trial or trials out of Baltimore.

•Oct. 13 trial date — subject to change

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