BALTIMORE — Judge Barry Williams will hold a hearing Thursday on the first day of trial for Officer Caesar Goodson about whether prosecutors wrongly withheld discussions they had with a potential witness in the Freddie Gray case, newly unsealed documents show.
Attorneys for Goodson are asking Williams to dismiss the charges against him, alleging the failure to disclose the information was a violation of his rights. Documents filed by both sides were filed under seal, but unsealed by Williams on Wednesday.
The 11th-hour filings revolve around Donta Allen, the second man who was placed inside the police transport van after prosecutors say Gray was severely injured. Police said Allen told investigators that Gray was thrashing around the van, but Allen has publicly recanted that statement and said he only heard a faint tapping, according to court documents.
Prosecutors dismissed the meeting as inconsequential, saying it produced no evidence because Allen was "consistent with his inconsistence." They say their meeting with him was "farcical" and "unproductive," and they do not intend to call Allen as a witness.
Goodson's attorneys say Allen's attorney, Jack B. Rubin, contacted them last week and said the state had concealed for over a year that they had met with Allen last May. The defense says Williams has twice determined that the state improperly failed to produce discoverable evidence in two prior occasions.
"Officer Goodson would never have learned of this third instance without the intervention of a conscientious lawyer who felt duty bound to alert the court and the defense to the state's misconduct," Goodson's attorneys write. "This is the state's third strike — the only remedy that can rectify the state's violations ... is dismissal of the charges against Officer Goodson."
The state says defense attorneys are seeking an "unauthorized" remedy and that they complied with their obligations to disclose potentially exculpatory information.
Goodson's trial is set to begin Thursday with opening arguments. He was the driver of the van inside of which Gray suffered fatal spine injuries, and is charged with second-degree murder, three counts of manslaughter, and other charges. He has elected a bench trial in front of Williams. Last month, Williams acquitted another officer in the case, Officer Edward Nero, of all charges.
Allen is serving 10 years after being found in May to be in violation of his probation stemming from a 2013 armed robbery conviction, for which he initially received a 15-year sentence with all but five years suspended.
Allen was listed as a potential witness at the first trial in the case, of Officer William Porter, and arrangements were made to bring him to court, but he was not called by either side.
Goodson's attorneys say prosecutors did inform them of a May 4, 2016, meeting they had with Allen, and "described select statements" Allen made during that discussion. But they say the state failed to disclose an "extended proffer session" on May 7, 2015 — just after the charges against the officers were announced but prior to grand jury proceedings.
After being informed of the meeting by Rubin this month, defense attorneys reached out to prosecutors who said Allen was inconsistent and they did not believe they were obligated to disclose any information from the meeting, Goodson's attorneys say.
Prosecutors say that Allen stood by his various statements about what Gray was doing in the van, and "did not acknowledge the statements were inconsistent or offer an further explanation." No new information emerged, so they did not believe it needed to be disclosed.
Williams initially ordered both sides to file documents related to the dispute under seal. But on Wednesday he said that after reviewing the documents, and in anticipation of an open-court hearing on the issue on Thursday, unsealed the documents.
During Porter's trial, Williams found that prosecutors failed to disclose that Gray had allegedly told a police officer the month before he died that he suffered from back problems. After that discovery violation, Porter's attorneys asked Williams to drop the charges against Porter. He did not grant that request, but said Porter's attorneys could use the new information.
Parties in the case are prohibited from commenting due to a gag order.