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Jurors asked not to talk, documents filed under seal in Freddie Gray case

Jurors asked not to talk, documents filed under seal in Freddie Gray case
Baltimore Circuit Judge Barry Williams (Maryland State Archives)

Judge Barry G. Williams has taken extraordinary steps to limit the information that becomes public in the criminal case against six Baltimore police officers charged in the arrest and death of Freddie Gray, including asking jurors not to talk about the first trial even after he declared a mistrial.

Reached by The Baltimore Sun, attorney Susan Elgin confirmed that she had served as a juror in the trial of Officer William G. Porter. After the 12 jurors deadlocked, she said, Williams asked them not to discuss the case with the news media.

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"I would very much like to talk about my experience as a juror," said Elgin, a family law attorney who has served as chair of the Maryland Commission for Women. "However, Judge Williams asked the jurors not to discuss our service with the press. I want to honor that request and respect the process."

The judge's request was one of several steps taken to limit the public release of information in the case.

While legal experts say judges have wide latitude to control court proceedings and the flow of information, there are constitutional restrictions on that power. It is a delicate balancing act to ensure a fair trial for the defendant and to be transparent enough that the public is assured that justice is served, experts said.

The Porter case garnered intense media attention. The jurors were kept anonymous, and during the trial they were instructed not to discuss the case with friends, family or each other.

After court proceedings conclude, jurors typically are free to talk to anyone. Some jurors in high-profile cases have endeavored to write books about their experiences, including one of the six anonymous Florida jurors who voted to acquit neighborhood watch coordinator George Zimmerman in the 2012 shooting death of Trayvon Martin, an unarmed 17-year-old black youth.

Other jurors in the Porter case have remained anonymous.

In addition to his request for juror silence, Williams has sealed a number of court filings.

While judges frequently shield filings from public view for a variety of reasons, including to protect the safety of a witness, it can be difficult to discern why Williams took such a step in the Porter case.

Sealed filings should be noted in the public court file, according to legal experts. But notice of some sealed documents never appeared on the website specifically set up by the judiciary to post filings and other updates about the Gray case.

References to more than a dozen were discovered by The Baltimore Sun during a review of an antiquated court docket system on a terminal in the corner of a court clerk's office. That system is rarely accessed by the public.

The public also can access the hard-copy file in Porter's case, but that has been unavailable for review at the clerk's office since before the trial began on Nov. 30. A court clerk said the file has not been returned since it was taken by the judge for Porter's trial.

A defendant has an explicit right to both a public trial and an impartial jury under the Sixth Amendment. Courts also have interpreted the First Amendment as guaranteeing the public and the press access to most aspects of criminal trials, said Jocelyn Simonson, an assistant professor at Brooklyn Law School and former public defender, who writes often about issues of public participation and access to courts.

"It's a genuine battle," Simonson said. "I don't think it's absurd for a judge to be sealing things sometimes, but as a public, what we want to be assured of is that there's a careful assessment on a case-by-case basis, and not a blanket assessment."

In high-profile cases, that balancing act can be more difficult — and even more important to get right, experts say.

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Williams declined through a spokeswoman to be interviewed. When asked about the judge's instruction to jurors and the process for sealing documents, spokeswoman Terri Charles said: "Judges are not able to comment on their cases, so he will be unable to speak about this."

Other steps were taken to control the information released publicly. In October, weeks before Porter's trial, Williams issued a gag order barring prosecutors and the officers' defense attorneys from discussing the case.

Part of jury selection in the Porter case was conducted behind closed doors. And many discussions among Williams, prosecutors and Porter's defense team during court proceedings were conducted at the judge's bench under the cover of white noise, even when jurors were not present.

Maryland law bars electronic and recording devices in the courtroom, so the proceedings could not be televised. Administrative Judge W. Michel Pierson also banned reporters from conducting interviews inside the courthouse.

And sheriff's deputies tightened security procedures in and around the building, with one deputy telling a Sun reporter and a photographer that they could not take pictures of the courthouse from across the street.

Gray, 25, suffered a severe spinal injury while being transported in police custody on April 12, and his death a week later led to widespread protests against police brutality. On the day of Gray's funeral, rioting, looting and arson broke out.

Baltimore State's Attorney Marilyn J. Mosby's decision to charge the six officers, nationally televised by media already in town to cover the unrest, played out amid a national dialogue about police accountability. The officers face a range of charges, including misconduct, assault and manslaughter. All have pleaded not guilty.

"Public trials are especially important in high-profile cases like this," said Erwin Chemerinsky, dean of the University of California, Irvine School of Law and an expert in constitutional law. "There needs to be a public trial as a way of protecting the defendant's rights, but there also needs to be a public trial in order for the public to be sure that justice is done."

Simonson said Williams' request that jurors not discuss the case was "very unusual" but not unprecedented. She said trying to limit what they say "could be a valid approach if there's a chance of it infecting jurors" in the subsequent trials in the case.

"That's the only legitimate reason," she said. "Beyond that, I think it would be completely inappropriate to ask the jury not to speak."

Officer Caesar R. Goodson Jr., the driver of the van in which Gray was transported, will be the second officer to stand trial beginning Jan. 11. He faces the most serious charge of second-degree depraved-heart murder.

His attorneys have asked that the trial be moved out of Baltimore, arguing that it will be impossible to seat an impartial jury in the city. Williams denied such a request from Porter.

Simonson said judges also might have compelling reasons for sealing documents and other information, but that not providing notice of such a decision would be inappropriate.

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She said the failure to post notice could be an administrative mistake, but "at a certain point, dragging your feet becomes a violation of the First Amendment."

The notice is important because outside parties, including the press, may object and seek to intervene, experts say. The defense and prosecution would be privy to all filings, sealed or not.

Chemerinsky said it is difficult to talk about sealed court filings "in the abstract." However, he said, there are legitimate — and limited — reasons to seal them.

"Where I think the law is and should be is that there is a strong presumption of the openness of all documents, and there has to be a strong and important reason for secrecy as to a particular document," he said. "Once you say that the press and public has a right to attend almost all parts of a criminal trial, documents are a part of that."

Federal court dockets are posted online and reflect every time a sealed document is filed. The online Maryland court case search is less detailed.

In contrast to the Porter case, Williams has issued five orders denying defense motions to seal documents in Goodson's trial, and those have been posted on the Gray case website.

In one order, Williams wrote that the court had requested that attorneys in the case file "under seal" any discovery disputes and proposed voir dire, a legal term that covers jury selection and the questioning of expert witnesses.

But, the judge added, he was denying the request to seal documents because the motions did not "fall in those categories."

The documents included an internal police document in which police officers wrote that Freddie Gray had once complained of a back problem. Williams had sealed that document during Porter's trial when he ruled that prosecutors committed a discovery violation by failing to disclose it to defense attorneys.

Mark R. Weaver, a prosecutor and adjunct professor at the Ohio State University College of Law, said that because sealing court filings clashes with a "fundamental constitutional right," judges are required to make "specific findings" as to why such a step is necessary. Those findings should be narrowly construed and made public, he said.

"A prudent judge would make a finding on the record that the measures that he's taking are required to protect the Sixth Amendment right of the defendant and are narrowly tailored to do that," said Weaver, who teaches a course on law and ethics surrounding high-profile trials.

"It's not just about this one defendant. There might be a document that's not all that important in this case but could hinder the right of defendant No. 3 to get a fair trial," he said.

As for Williams' asking that jurors refrain from speaking to the press about the Porter case, Weaver said the judge's request is not legally binding. No public court order was issued. Jurors can shed light on their deliberations and reveal how they voted on the charges.

"It's standard in a high-profile case for a judge to remind jurors that they don't have to talk to anybody about the trial. It's permissible for a judge to recommend that jurors don't talk. It's unconstitutional for a judge to order jurors not to talk," he said.

"The judge has a lot of power over you when you're standing in front of him, but once you've left that courthouse, unless you have some tangible connection back to that case, that judge has zero power over you."

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