Gray family settlement will be raised at officers' criminal hearing, analysts say

What impact will city's settlement with Freddie Gray's family have on officers' criminal trials?

In outlining a planned $6.4 million civil settlement with the family of Freddie Gray, city officials stressed — in two underlined and boldface words — that the agreement has "nothing whatsoever" to do with the pending criminal proceedings against six police officers charged in Gray's arrest and death.

Analysts said that's arguably true from a legal standpoint, but not from a practical one.

"It's definitely an issue that's going to be raised, and it's definitely going to come to the forefront of the conversation" during a motions hearing this week to determine whether the officers should be tried in Baltimore, said Jeremy Eldridge, a defense attorney and former city prosecutor.

"Once again, there has been a direct impact on the citizens of Baltimore City. First and foremost, it's taxpayer money that's being used to fund this settlement," Eldridge said. "And although there's not a finding [of] liability on the part of the officers, the city's acknowledgment and subsequent settlement certainly connote some acknowledgment of liability. And for the average citizen to separate the two is going to be extremely difficult."

The settlement is expected to be approved by the Board of Estimates Wednesday. The hearing on whether to move the officers' criminal trials out of Baltimore — which many see as a seminal moment in the criminal proceedings — is scheduled for the next morning.

Gray, 25, died in April after suffering a severe spinal cord injury while in police custody. His death prompted protests against police brutality, and his funeral was followed by a period of rioting, looting and arson in which hundreds of businesses were damaged.

The six officers have pleaded not guilty to charges ranging from second-degree murder to assault. Defense attorneys have argued that the trials must be moved out of Baltimore because every potential juror in the city has been bombarded with information about Gray's death and impacted personally by the unrest and subsequent curfew.

The attorneys either could not be reached or declined to comment on the settlement.

Baltimore State's Attorney Marilyn J. Mosby's office, which filed charges against the officers in May, has argued that the cases should be kept in Baltimore at least through the voir dire process, when potential jurors are vetted for partiality and prejudice.

Mosby's office also did not respond to a request for comment Tuesday.

Legal analysts said it's unclear how Circuit Judge Barry Williams will rule on the venue issue. While publicity in high-profile cases doesn't hold the same weight it once did in getting trials moved — the Internet has largely made information universal, as accessible on the Eastern Shore as in East Baltimore — the argument that potential city jurors could be scared to issue a verdict they believe would stir more unrest is a powerful one, they said.

Under the settlement, the city accepts liability in Gray's arrest and death but does not acknowledge any wrongdoing by police.

David A. Harris, a University of Pittsburgh law school professor and an expert on police misconduct issues, pointed out that it's easier legally for plaintiffs to prove civil liability than it is for a prosecutor to prove criminal guilt. Nonetheless, he said, the settlement could hinder the officers' ability to get a fair trial in Baltimore.

"If potential jurors don't understand the distinction, and they just think the city is admitting the police officers are at fault, a judge would tell them otherwise in jury instructions," Harris said. "But a lot of folks might still carry the thought of the civil settlement with them as potential jurors. So I would expect the civil settlement to come up in defense motions for change of venue."

David Rudovsky, a senior fellow at the University of Pennsylvania law school and a civil rights and criminal defense attorney, said the notion that potential jurors would be unable to distinguish criminal guilt on the officers' part from civil liability on the city's part is "a legitimate argument" for defense attorneys to make, though not one that would "carry the day" on its own.

While the settlement could bolster the defense argument that the criminal cases should be moved, it won't be "a major factor," he said, as Williams will no doubt note that "a civil settlement is inadmissible in a criminal case."

Williams did not tip his hand as to his feelings on a venue change at a separate hearing last week. While noting the importance of voir dire, he left open the possibility that the trials could end up in another jurisdiction.

Doug Colbert, a University of Maryland law professor, said there is "an enormous difference between compensating a family for their loss and finding anyone criminally responsible," and said that distinction is made in cases "almost every day."

He said a person who is unable to distinguish between the two "would not make an ideal juror," but that jurors would be educated about the distinction.

"Most lawyers and judges place a great deal of faith in the jury selection process, where we always weed out people who have formed an opinion that makes it difficult for an accused [person] to receive the fair and impartial trial they are entitled to," Colbert said.

It's not the first time a potential civil settlement has been raised in the case. Shortly after the criminal charges were announced, the officers' attorneys raised it in a motion to have Mosby recused from the criminal case. Williams denied that request last week.

The defense attorneys had claimed that Mosby's relationship with Gray family attorney William H. "Billy" Murphy Jr., a financial contributor to Mosby's campaign and member of her transition team, created a conflict. Murphy "has a substantial financial interest in the outcome of any criminal case against the six police officers, as any guilty finding will improve his position in any potential civil suit against the City of Baltimore and its police department," the defense attorneys argued.

Legal analysts say it's standard for lawyers to receive as much as 30 percent to 40 percent of such a payout; terms of the Gray family's arrangement with Murphy have not been disclosed publicly. Murphy declined to comment on the settlement Tuesday.

The defense attorneys also argued that several of the charges against the officers, including second-degree murder and assault, suggest intent on behalf of the officers to harm Gray, which would open the door for a federal civil suit based on the claim that Gray's constitutional rights were deprived. Such federal claims aren't limited by the state's $400,000 cap on most state claims, they noted.

In a response filing in June, prosecutors rejected the defense claims of conflict. The "notion that Mrs. Mosby would bring baseless criminal charges with the entire nation watching just so that Mr. Murphy might have some advantage in the civil case is ludicrous," they wrote.

Analysts said the proposed settlement makes the civil aspect of the case relevant along different lines — stirring up publicity when the case's high profile is under the most scrutiny.

"It's another piece of news, and it's a piece of news that is going to be widely distributed," said Amy Dillard, a University of Baltimore professor. "A lot of people want to talk about this. ... It's going to again reach a jury pool that is already saturated [with information] about this case, whether from the news or from a neighbor or from being out on the street protesting."

"It will further complicate the issue of whether you can get citizens who have not been impacted," Eldridge said, "adding fuel to that fire."

Baltimore Sun reporters Yvonne Wenger, Justin Fenton and Mark Puente contributed to this article.

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