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Funeral is no place to convict suspects

The Baltimore Sun

Manson guilty, Nixon declares."

Remember that headline from all those years ago? President Richard M. Nixon, commenting about the trial of Charles Manson, opined that the defendant "was guilty, directly or indirectly, of eight murders without reason." Manson was being tried because some of his followers murdered actress Sharon Tate and seven others in 1969.

Speaking about headlines, here's one that didn't run - but certainly could have - with an article that appeared this week in this newspaper:

"Grimes guilty, O'Malley declares."

Brandon Grimes has been charged in the fatal shooting of Baltimore Detective Troy L. Chesley Sr. The officer's funeral was Tuesday. Several city officials were in attendance, including then-Mayor Martin O'Malley, the day before he took the oath of office as Maryland's governor.

Grimes has an extensive arrest record, and that's putting it kindly. At the tender age of 21, Grimes has managed to rack up 17 arrests, not including his arrest on the charge of killing Chesley. O'Malley made a point to bring that up at Chesley's funeral.

"It is not right," O'Malley said, "that a man who was arrested one, two, three, four, five, six, seven, eight, nine, 10, 11, 12, 13, 14, 15, 16, 17 times should be allowed to take one of ours from us. It is not right that a man who was arrested twice on gun charges ... should take [Chesley] from us. It is not right." O'Malley didn't mention Grimes by name, but who else has been arrested 17 times - twice on gun charges - in this case?

Listening to O'Malley, you wouldn't know that there's a court-imposed gag order regarding the state's case against Grimes. But there is. On Jan. 12, Judge Keith E. Mathews, the administrative judge for the District Court of Maryland for Baltimore City, issued the gag order. Of particular importance for this discussion are the parts of the gag order meant to prevent "extrajudicial statements" about "the character, credibility, reputation or criminal record of the defendant, the alleged victim or any witness" and "any opinion as to the guilt or innocence of the defendant."

Mathews takes the gag order so seriously that even he wouldn't comment on it or the case. But Syeetah Hampton-El, his law clerk, was kind enough to tell me to whom the gag order applies.

"The gag order applies to all the attorneys involved in the case," Hampton-El said, "the office of the public defender and the Police Department." In short, it applies to almost everybody but the guy who actually needed gagging: Martin O'Malley, governor of Maryland.

O'Malley's office was asked to comment on whether his remarks presumed Grimes' guilt and made it difficult for him to get a fair trial in Baltimore.

"The governor's comments speak for themselves," said Steve Kearney, an O'Malley spokesman.

Why are gag orders on prosecutors, defense lawyers and police imposed in the first place?

Let's check The Oxford Companion to the Supreme Court of the United States for an answer. A perusal of the "Pretrial Publicity and the Gag Rule" subsection would seem appropriate.

"Another means of curtailment (of pretrial publicity) is the restriction of information divulged by trial participants. In Gentile v. State Bar of Nevada ... the court held that some restrictions on lawyers' speech ... may be constitutional."

Adverse pretrial publicity might affect a defendant's chance of a fair trial. O'Malley, with his remarks, has substantially reduced Grimes' chances of getting anything resembling a fair trial in Baltimore, where 12 disinterested jurors are supposed to presume his innocence and weigh the evidence against him. And it could give Grimes' attorney grounds for a change of venue.

"It certainly will be legal grounds for a change of venue because it was the death of a police officer in Baltimore City," said Margaret Mead, a local defense lawyer.

Kurt L. Schmoke, a former mayor and state's attorney of Baltimore, agreed with Mead.

"I think [Grimes'] lawyer would raise it," Schmoke, now dean of Howard University School of Law, said yesterday. "I don't think it would be granted. The court could still find 12 jurors who didn't hear the [former] mayor's remarks. There are still a large number of people who may not have heard about it."

Schmoke added that even if Grimes' lawyer were inclined to ask for a change of venue, where in Maryland could Grimes go and hope for a jury with even a scintilla of impartiality?

"I'm not sure there's many more places in Maryland he wants to move the case," Schmoke said.

Mead added that she didn't think O'Malley's remarks about Grimes "will impact the jury much." But that's not quite the point.

This is about whether Grimes - or any other defendant - is to be tried in a court of law with 12 jurors who are as impartial as humanly possible. Or is he to be tried on our newspaper pages, our television and radio airwaves, or at the funeral of a slain police officer?

Seventeen arrests or zero arrests, Brandon Grimes is entitled to the same thing O'Malley - or you or I, for that matter - would have if he were charged with a crime.

It's called "a presumption of innocence."

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