Baltimore officers fight to keep lawsuit against Marilyn Mosby alive. (WJZ)
A federal judge said Thursday that he would pare down a lawsuit filed against Baltimore State's Attorney Marilyn J. Mosby by officers charged in the death of Freddie Gray, but he asked questions about how her dual role as investigator and prosecutor in the case could expose her to liability.
The hearing was the first time in court for the two sides since prosecutors dropped the remaining charges against the officers indicted in Gray's death.
With prosecutors unable to convince jurors and a judge in four trials that those officers were criminally responsible for Gray's death, five of the six officers charged are suing Mosby in civil court for what they say was a malicious prosecution.
Thursday's hearing in front of U.S. District Judge Marvin Garbis was prompted by a motion to dismiss the case filed by attorneys for Mosby and Deputy Chief Samuel Cogen of the Baltimore sheriff's office, who is also a defendant.
Garbis did not rule Thursday and did not give a timetable for a decision. But he indicated he would drop several of the charges, including false arrest.
Assistant Attorney General Karl Pothier, one of Mosby's attorneys, argued that Mosby as a prosecutor is entitled to "absolute immunity" when deciding to charge a criminal suspect.
However, Garbis said there was a distinction between prosecutors receiving an investigation from police and offering legal guidance, and prosecutors using their own investigation.
"This is the problem when someone tries to wear two hats and publicly states … that it was her investigation," Garbis said.
The lawsuit highlights the complications prosecutors faced in investigating Gray's death. Mosby has said she did not trust the Baltimore Police Department's investigation of the case, and was forced to conduct an independent review.
But during the criminal trials, that move forced prosecutors to turn over materials not normally required to be provided to the defense, opening up new lines of attack.
Now, in civil court, the officers' attorneys are arguing she can be sued because of that expanded role. Mosby's attorneys disagree.
If Garbis allows the lawsuit to continue, Mosby and others could be subjected to detailed depositions.
Gray, 25, suffered a severe neck injury in a police van after being arrested when he ran from police in Gilmor Homes on April 12, 2015, and died a week later. After Gray's death was ruled a homicide by the medical examiner's office, Mosby announced that her office had conducted an investigation independent of police that determined six officers committed crimes.
Prosecutors alleged that Gray was wrongly arrested, and that the officers entrusted with his care then failed to secure him inside the prisoner transport van with a seat belt, exposing him to danger. They accused van driver Officer Caesar Goodson of giving him a deliberate "rough ride" that caused him to be injured. Officers who saw Gray in the back of the van failed to get him medical help, they said.
Jurors deadlocked in the first trial, of Officer William Porter. The next three officers, Edward Nero, Goodson and Lt. Brian Rice, elected bench trials and were cleared by Circuit Judge Barry Williams. Prosecutors then dropped charges against Officer Garrett Miller, Sgt. Alicia White, and Porter.
All of the officers except Goodson are suing Mosby and Cogen for knowingly filing false charges and defaming them. Nero and Miller appeared in court Thursday to observe the proceedings; Mosby, Cogen and the other officers did not.
Andrew Toland, one of the attorneys representing Nero and Miller, said the state's attorney's office's investigation was "garbage in, garbage out," with prosecutors selectively putting forward certain information about the case to advance the charges but withholding other information that would paint the full picture.
Attorneys for Mosby and Cogen said at the time the officers were charged, authorities only had to reach a minimum standard of probable cause and not put forward every detail.
Garbis at one point focused in on the argument over a knife Gray was carrying when he was arrested. Nero and Miller charged Gray with having a switchblade, illegal under the city code. But prosecutors said the knife was legal under state law and said his arrest was unlawful.
Garbis asked attorneys for Mosby and Cogen, who filled out the statement of probable cause on the charging documents for the officers, which one would be responsible for any incorrect assertions on the charging document.
Cogen's attorneys said he merely reviewed documents presented to him by Mosby's office and did not have firsthand knowledge of the evidence.
"State's Attorney Mosby and her office are responsible for any legal conclusions erroneously made," said Assistant City Solicitor Sara Gross. "If a police officer can't rely on the state's attorney for accurate information, who can they rely on?"
Pothier, representing Mosby, said it was Cogen's responsibility.
"He's the one who executes the document, he's the one who swore under oath," Pothier said.
Garbis also asked the officers' attorneys to explain how Mosby had defamed them when she read from the charging document and announced the charges at a news conference. They began to rehash defense arguments from the trial, including asserting that Gray was injured at a much later point during the van ride than prosecutors have said.
"These are factual disputes that couldn't be resolved short of trial," said Gross, Cogen's attorney, in response. "Nobody knows when Freddie Gray was injured. … The issue has never been resolved."
Pothier said omissions of evidence at the charging stage, and disputes over timelines, had been "dealt with during the course of the criminal proceedings" and said the officers were trying to "litigate what was resolved in criminal court."
Tony Garcia, an attorney for White, said his client never got her day in court because the charges were dropped and maintained Mosby had made false statements about White's role in the Gray case to make her look "callous."
"My client did everything right," Garcia said of White.
Pothier said Mosby comments at the news conference about "keeping the peace" amid the unrest after Gray's death were in line with her role as the city's chief prosecutor and said she had merely been putting the charges in context. He noted U.S. Attorney Rod Rosenstein held a news conference last week to announce an indictment of corrections officers charged with corruption.
"Making comments was entirely appropriate under the circumstances," Pothier said of Mosby's remarks.