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Gag order is latest challenge to those keeping tabs on Freddie Gray case

Three of the Baltimore Police officers charged in the Freddie Gray case arrive at a side door at the downtown courthouse for a recent pretrial hearing.
Three of the Baltimore Police officers charged in the Freddie Gray case arrive at a side door at the downtown courthouse for a recent pretrial hearing. (Barbara Haddock Taylor / Baltimore Sun)

A gag order imposed last week by the judge presiding over the Freddie Gray case is the latest of several challenges that have arisen for members of the public and the media keeping tabs on the proceedings.

In addition to a restriction on attorneys speaking outside of the courtroom, pre-trial hearings for the six police officers facing criminal charges in Gray's arrest and death have been marked by extensive bench conferences, to which the public isn't privy.

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An overburdened clerk's office has struggled to make court filings available several days after they are filed. And hearing transcripts won't be available until the trials have concluded — the sixth one is tentatively scheduled for March.

The constraints have highlighted debate over how much information should be made public and when. While the officers' cases have drawn a high level of public interest, concerns have been raised that so much attention could hinder the officers' ability to get a fair trial. Defense lawyers recently asked that the jury be sequestered with limited contact with friends and family.

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"The judge is trying to keep it open when possible, but ensuring that the defendants can get a fair trial," said Greg Hurley, an analyst with the National Center for State Courts. "In a run-of-the-mill case, these aren't hard decisions. There aren't people looking at each piece of evidence. In a high-profile case, there's interest in every facet."

The death of Gray in April, a week after suffering a fatal spinal injury in a police transport van, has drawn widespread attention to Baltimore. Six officers involved in his arrest and transport have been charged with a range of crimes, from misconduct to assault and second-degree murder. The first trial, of Officer William Porter, is scheduled to begin in late November.

Gregg Leslie, legal defense director for the Reporters Committee for Freedom of the Press, said when cases draw such widespread attention, the public also learns more about the way courts operate.

"It's always kind of the exceptional trial, the high-profile trial, that we learn about the flaws in the system," Leslie said.

Gag orders, for example, are overused by the courts and don't achieve the desired objective, he said. "They stop the best information from getting out to the public, and don't have the curative effect that judges think they will have" on potential jurors, he said. The jury selection process, he said, is meant to "weed out people with biases."

Judge Barry Williams has been grappling with how months of publicity could impact the trial. He concluded a gag order was necessary to limit discussion of the case.

"There is a substantial likelihood that certain forms of publicity, such as extrajudicial statement by the parties involved in this case to members of the press or media, could impair the rights of the defendants, the state, and the public to a fair trial by an impartial jury," Williams wrote in his gag order.

Williams previously rejected arguments from defense attorneys who said the trials should be moved out of Baltimore because intense media coverage affected their clients' ability to get a fair trial. The judge ruled the claim was premature and that potential jurors should be screened.

Judge Charles J. Peters in June denied a previous attempt by prosecutors to ban comments outside of the courtroom, though on procedural grounds. The Baltimore state's attorney's office never renewed its request, but Williams at the close of last week's hearing said he would be issuing a gag order.

A gag order is a rare step, though city judges have in the past imposed such orders in high-profile murder cases.

Steve Levin, a defense attorney and former federal prosecutor, said he was surprised by the timing of the gag order in the Gray case. With the exception of State's Attorney Marilyn J. Mosby publicly announcing charges against the officers on May 1, and a news event organized a few weeks later by attorneys for defendant Sgt. Alicia White, both sides have aired their arguments in court filings, he said.

"Since that time, I haven't heard either side say much, if anything, about the case," Levin said. "I don't think the gag order is going to make a difference because I don't think either side is going to be talking to the press."

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Officer Caesar R. Goodson Jr., the driver of the police van, is charged with second-degree murder. White, Porter and Lt. Brian W. Rice are charged with manslaughter. Officers Edward M. Nero and Garrett E. Miller face lesser charges, including second-degree assault. All six have been charged with misconduct.

All have pleaded not guilty to the charges and have been free on bail.

Most new information released about the case has been in court filings. Because of public interest, the Maryland Judiciary established a website to post filings in the Gray case. A similar website was set up for the corruption trial of former mayor Sheila Dixon, while documents in a handful of other high-profile cases have been posted online due to public interest.

But there have been delays of two days to a week from the time documents are filed in the Gray case to when they are posted.

The gag order, for example, was signed on a Wednesday but not released by the court until the following Friday. Another document filed that Wednesday, from Porter's attorneys, was not in the court file as of the following Tuesday, though the court clerk's office was able to track it down.

Terri Charles, a spokeswoman for the judiciary, said that processing time in the clerk's office is 24 to 48 hours and that the agency has sought to post documents once they go through that process.

The judiciary, she added, does plan to improve public access to the Gray case material.

The pretrial proceedings have been marked by lengthy bench conferences, in which Williams converses with attorneys at the front of the courtroom while white noise is played over courtroom speakers so that the public can't hear the discussions.

Legal experts said bench conferences are typically conducted to discuss sensitive information about a client or witness — or when a judge wants to scold attorneys and not embarrass them.

"I certainly understand why the public would be interested in that, but that's within the discretion of the judge," Levin said.

Retired Maryland Court of Appeals Judge Joseph F. Murphy Jr. said the public's right to know is not an "immediate" one.

"It's not that the public will never get a chance to know what went on at a bench conference — they will," Murphy said. "But there's a difference between the right to receive information, and the right to receive that information instantly under circumstances that place a serious risk to the fairness of the proceeding."

Such bench conferences are part of the official public record of the hearing. However, an administrative order from 2010 applying to all Baltimore Circuit Court cases prohibits the public from viewing the conferences when reviewing video recordings of hearings.

The conferences are included in official transcripts of the hearings, but that order prohibits anyone other than attorneys and judges from obtaining a transcript until proceedings are completed.

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That order, issued by then-Administrative Judge Marcella Holland shortly after the conclusion of Dixon's trial, cited that it had "come to the court's attention that certain proceedings attract more attention from the public and more requests for transcripts."

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Court officials said changes to the 2010 order have been contemplated, but are not expected before the conclusion of the Gray case.

Baltimore Circuit Court Administrative Judge W. Michel Pierson did not return calls seeking comment.

Rebecca Snyder, executive director of the Maryland-Delaware-DC Press Association, said such orders undermine the public's faith in the justice system — whether that sentiment is justified by the court's actions or not.

"That's damaging to the process," she said. "It's so important to make sure the public has trust in the process, that it's an effective process and that everyone can participate."

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