Attorneys for the six Baltimore police officers charged in the arrest and death of Freddie Gray presented new evidence Wednesday to support their claims that a prosecutor went "shopping" for a judge to sign warrants for the officers' department-issued cellphones.
The evidence in their motion included text messages between the prosecutor and a police detective investigating the case.
Prosecutors, meanwhile, responded to claims by some of the officers that they had made statements to detectives under duress.
"Simply put," they wrote in a motion of their own, "no one ordered, compelled, coerced, or otherwise required the Defendants to make their statements. They gave them voluntarily."
Defense attorneys repeated their assertion that a prosecutor — identified for the first time as Assistant State's Attorney Albert Peisinger — communicated improperly with a Circuit Court judge to get the warrants signed after the first judge he tried found that they lacked probable cause.
Defense attorneys say they also discovered an unexecuted warrant for the officers' private cellphones that was never disclosed to them in discovery, and another warrant — for the same personal phones — that was denied.
The defense filing is a response to a motion filed last week by the office of Baltimore State's Attorney Marilyn J. Mosby in which prosecutors called the judge-shopping claim a "falsehood" and suggested it would ask the court to sanction the attorneys who brought it.
The defense attorneys say it's the prosecutors who deserve to be sanctioned.
"The State seeks to mask their own misconduct with rhetoric," they wrote.
The language of the motions reflects the ever-increasing tension between the defense and prosecution in the closely watched case.
Rochelle Ritchie, a spokeswoman for Mosby, declined to comment on the filings, saying that prosecutors will litigate the case "in the courtroom."
Defense attorneys declined to comment or could not be reached.
Observers said the motions were unnecessarily personal or pointed in their language, but could have real implications for the outcome of the case, particularly if the phone records or the officers' statements include key evidence for the prosecution.
Gray, 25, died in April after suffering a neck injury in the back of a police van.
Mosby brought charges against the six officers on May 1.
The driver of the police van, Officer Caesar R. Goodson Jr., 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 have pleaded not guilty. A trial date has been set for October. None of the officers have yet appeared in court, leaving attorneys to wage the legal battle entirely through motions.
The defense raised concerns about the alleged "judge-shopping" by the prosecution in a motion earlier this month. Attorneys cited the account of a detective who said he was directed to present the warrant applications to Judge Timothy Doory after they had been rejected by another judge.
Prosecutors responded quickly with a motion of their own in which they accused the defense of making "deliberate falsehoods" and said that a phone call the defense claimed Peisinger made to Doory never happened.
"The Defendants simply assert to be true what they know to be false," the prosecutors wrote.
In the motion filed Wednesday, defense attorneys include a phone log that they say shows Peisinger called Doory's chambers on April 27, around the same time he was texting with the detective working on the case.
That morning, the defense attorneys say, the detective had texted Peisinger to ask if the failed warrant application could be improved by adding information that would provide probable cause.
"We should be fine," Peisinger responded, according to defense attorneys. "I will call to see if Doory will possible sign them."
Eighteen minutes later, the defense says, Peisinger wrote again: "Waiting for a call back. Spoke to the judges chambers."
About three hours after that, Peisinger writes to the detective: "Calling you now."
An hour later, the detective writes to Peisinger: "Got them signed thanks for everything."
The defense attorneys say Doory also signed warrants for the officers' personal cellphones that another judge had denied.
They say Peisinger's actions were "unorthodox and unusual," and that his communications with Doory represent "legitimate concerns" about the prosecution's approach in bringing the charges.
"Such action by the State suggests that there could have been undue influence ... exerted by the Office of the State's Attorney in its pursuit of a judge who would grant a search warrant after a detached and neutral court had determined that the affidavit lacked probable cause," they wrote.
David Jaros, a law professor at the University of Baltimore, said the questions surrounding the warrants deserve a hearing, as the defense has requested. He said it makes sense for defense attorneys to call Doory's neutrality into question, because that's the only way for the defense to suppress the cellphone records.
But he said both sides have gone too far with their rhetoric in recent motions. Prosecutors should not have suggested they intended to seek sanctions against the defense for seeking more information on the judge-shopping concerns, Jaros said, because those are legitimate concerns that any "rigorous defense attorney" would raise.
The defense attorneys, meanwhile, should not have suggested that prosecutors didn't actually conduct the independent investigation into Gray's death described by Mosby when she announced the charges, he said. They made that suggestion in a motion this month seeking more evidence from that investigation, a move Jaros called "silliness."
"Both sides would be really well served by toning down the personal rhetoric and simply focusing on the legal issues of the case, of which there are many," he said.
Jeremy Eldridge, a former state prosecutor in Baltimore, said the most recent motion shows that the defense attorneys are right to question whether they are receiving all the discovery in the case.
He noted that the defense has now shown that warrants that were sought — executed or not — were not disclosed to them, and that communications between a judge and prosecutor were also left out of evidence.
"Is it really the responsibility of the defense attorneys to uncover what happened during the investigation?" Eldridge asked. He said evidence that is in any way discoverable should just be turned over up front.
Prosecutors have said they turned over all discoverable evidence. And in their motion this week, they argued it is the defense that's trying to suppress evidence improperly.
Rice, Porter and White said in motions this month that they had made statements to investigators because they feared losing their jobs. Miller and Nero also argued that their statements were taken improperly.
Prosecutors denied those allegations and offered details of how the videotaped interviews were conducted.
They called the interviews "relaxed and investigatory" rather than aggressive or confrontational. For example, the detectives conducting the interviews referred to Rice as "LT" and "boss," and to White as "Sarge," given their higher ranks.
Prosecutors described one of White's interviews as "a friendly gathering of information" between officers on the same force.
"They all entered the room laughing about the red light outside the room that indicated the recording equipment was on and how in this situation red meant go," prosecutors wrote. They noted that White had her service weapon with her in the interview room, in apparent violation of the Police Department's policy.
Rice, prosecutors say, "chose his own seat at the table, which was the 'softer' chair that was not bolted to the ground, and the detectives sat across from him."
It's not clear what the officers told investigators in those interviews. Prosecutors wrote that they withheld transcripts of the officers' statements to police "given the concern about prejudicial pretrial publicity." It's also not clear what was found in the officers' cellphones, which were obtained through the warrants now in question.