Mosby's office: Defense attacks in Gray case 'like pinball on machine far past 'TILT''

The office of Baltimore State’s Attorney Marilyn J. Mosby says in a new filing that the arrest of Freddie Gray was illegal because he was already being detained without cause before officers found a knife.
The office of Baltimore State’s Attorney Marilyn J. Mosby says in a new filing that the arrest of Freddie Gray was illegal because he was already being detained without cause before officers found a knife. (Lloyd Fox / Baltimore Sun)

Baltimore prosecutors shed new light on their rationale for some of the charges against the officers involved in the death of Freddie Gray, saying in a court filing that Gray had been illegally detained before officers found a knife in his pocket.

In announcing the charges this month, State's Attorney Marilyn J. Mosby said that the folding knife, which police initially described as a switchblade, was not illegal under state law, and so Gray should not have been arrested.


Defense attorneys for the officers who were charged with falsely arresting Gray, 25, have said prosecutors overlooked city law, which they say forbids possession of such a knife. They have used the distinction to argue that the case against the officers was rushed and flawed.

In a response filed Monday, Chief Deputy State's Attorney Michael Schatzow wrote that Gray was detained "well before the arresting officers knew he possessed a knife."


The often-stinging 11-page rebuttal comes as prosecutors are asking a judge to impose a gag order on the participants in the case. A judge has not ruled on the request.

Monday's filing is the prosecution's first detailed response to attorneys for the six Baltimore police officers charged in the case. They have asked that the charges be dismissed and that Mosby recuse her office from the case for what they say are conflicts of interest.

Schatzow wrote that the defense arguments in that motion "bounce from one ridiculous allegation to another, like a pinball on a machine far past 'TILT.'"

"Whether born of desperation, the desire for publicity, or a gross effort to taint the grand jury and potential petit jury pool, the motion is absurd," he wrote.


Participants in the case are waiting for the findings of a grand jury. An indictment is expected before May 27, the date of the first scheduled hearing in the case.

Gray died last month after suffering a catastrophic injury during his arrest outside the Gilmor Homes housing project in the Sandtown-Winchester neighborhood of West Baltimore. His death was ruled a homicide by the state medical examiner.

One of the six officers was charged with second-degree murder in Gray's death, and three were charged with manslaughter. Three were charged with false arrest.

Legal analysts and police union leaders have focused on Mosby's contention that Gray was falsely arrested. Some have questioned whether officers can be charged for failing to establish probable cause before making an arrest.

In charging documents, prosecutors say three officers were on patrol near Gilmor Homes on April 12 when Gray spotted them and began to run.

Prosecutors say the officers chased Gray and soon caught him. They say the officers held Gray down, handcuffed him, and then found the knife.

The officers "substantially found a knife clipped to the inside of his pants pocket," prosecutors wrote in the documents. "The blade of the knife was folded into the handle. The knife was not a switchblade and is lawful under Maryland law."

They went on to describe Gray flailing and screaming as he is placed in a "leg lace" hold and put into an arrest van.

"Lt. [Brian] Rice, Officer [Garrett] Miller, and Officer [Edward] Nero failed to establish probable cause for Mr. Gray's arrest as no crime had been committed by Mr. Gray," they wrote. "Accordingly, Lt. Rice, Officer Miller and Officer Nero illegally arrested Mr. Gray."

Defense attorneys have said city law forbids possession of the kind of knife Gray was carrying.

"If in fact, the knife was unlawful, or one was reasonable in a belief that it was, the foundation of the state's argument collapses," they wrote in a court filing.

An attorney for the police union has cited a 2000 Supreme Court ruling in which the justices upheld the arrest of a man in a "high-crime area" of Chicago who fled upon seeing officers and was then searched and found to have a gun.

Schatzow countered that the prosecutors never said the knife was the basis for what they believe was Gray's illegal arrest.

"Mr. Gray was handcuffed at his surrendering location, moved a few feet away, and placed in a prone position with his arms handcuffed behind his back, all before the arresting officers found the knife," he wrote.

Schatzow also addressed the conflicts of interest in Mosby's office alleged by the defense.

In a filing this month, defense attorneys alleged conflicts including "the seizing of political and personal gain by" by Mosby and her husband, City Councilman Nick Mosby; a personal relationship between a top prosecutor on the case, Janice Bledsoe, and a television reporter, WBAL-TV's Jayne Miller, whom the attorneys say they might call as a witness; and close ties between Mosby and William H. Murphy Jr., the attorney hired by Gray's family.

"The conflicts presented by the State's Attorney's Office are deep, are real, and are imminent," the attorneys wrote.

Nick Mosby represents the city's 7th District, where Gray was arrested, as well as the Pennsylvania Avenue corridor at the center of protests and rioting over his death.

Murphy supported Marilyn Mosby's campaign and represented her in a matter before the Attorney Grievance Commission last year.

Schatzow acknowledged that Murphy contributed the maximum $4,000 to Mosby's campaign last year, and served on her transition team after she won the election. But he wrote that the contribution represented only a small fraction of her total fundraising, and was only $750 more than the amount given by the Fraternal Order of Police, which opposes the criminal charges against the officers.

He wrote that Murphy was one of 13 people on the transition team, he said.

"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," Schatzow wrote.

The defense has said it might call Miller to testify about an interview she conducted with a witness in the case before charges were announced. But Schatzow notes that a reporter from WJZ also interviewed the witness, and boasted that it was the first interview the man had given.

Schatzow said the allegation of a conflict involving Nick Mosby was "truly a breathtaking non-sequitur."

"If the defendants' conflict theory were accepted it would mean that the Baltimore City State's Attorney's Office could prosecute no crimes in an entire Councilmanic district," he said.

"Given the independent judicial officers' findings of probable cause, we would have thought that it was in the best interest of every law-abiding resident of Baltimore City — not just Mr. Mosby — for all of the rioting, looting, burning and acts of violence to come to an end."

Separately, prosecutors have requested a gag order in the case, which would ban comments made outside of court hearings and legal filings.

They cited a news conference held last week by the Vanguard Justice Society, a group for black Baltimore police officers, in which members spoke about the pending Department of Justice review of the agency and spoke in support of Sgt. Alicia White, one of the six charged officers.


Ivan Bates and Tony Garcia, attorneys hired to represent White, appeared at that event and spoke in her defense, denouncing the state's case.


Prosecutors also cited tweets from a Baltimore Sun reporter about the Vanguard news conference.

"Defense counsel are utilizing both social and broadcast media to influence the grand jury as well as potential petit jurors in this case to the detriment of the state's right to a fair trial," they said.

They also accused defense attorneys of providing pretrial motions to reporters before giving them to prosecutors.

Gregg Leslie, legal defense director for the Reporters Committee for Freedom of the Press, said attorneys often overstate the need for gag orders, which he said frustrate the public's ability to follow a case.

"In practice, they're always overly broad and pursued for the wrong reasons," Leslie said. "There's very little to suggest that pretrial statements affect a trial negatively."

The defense attorneys oppose a gag order.

"If the state truly wants transparency and accountability, as they have claimed, then it is imperative that the public understand the facts and the law beyond the bald allegations publicized by Mrs. Mosby," they said in a statement.

"These allegations have yet to be supported by a single piece of evidence, despite repeated requests. We have made one simple request: show us the evidence."

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