Baltimore State Attorney Marilyn Mosby announces charges against six police officers involved in the arrest and death of Freddie Gray on May 1.
Baltimore State Attorney Marilyn Mosby announces charges against six police officers involved in the arrest and death of Freddie Gray on May 1. (Lloyd Fox / Baltimore Sun)

A judge has rejected an attempt by defense lawyers to put Baltimore State's Attorney Marilyn J. Mosby and other city prosecutors on the witness stand at the first motions hearing in the case against six Baltimore police officers charged in the arrest and death of Freddie Gray.

Circuit Judge Barry Williams quashed the subpoenas sought by Catherine Flynn, an attorney for one of the officers, to put Mosby, five other prosecutors, two investigators and an assistant medical examiner on the stand at the hearing scheduled next Wednesday.

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Williams provided little explanation for his decision. He wrote that a letter Flynn sent to the court suggesting the hearing should consider evidence and therefore "take several hours to complete" was "inconsistent" with a court order that all communications in the case be filed through pleadings.

The defense has argued that prosecutors overstepped their bounds by acting as investigators in Gray's death in April. They say the independent review conducted by Mosby's office and a discussion with assistant medical examiner Carol Allan before she determined the cause of Gray's death made the prosecutors key witnesses in the case.

The defense says Mosby cannot be both prosecutor and witness, and should be removed from the case.

Prosecutors have rejected those arguments. They have called the subpoenas "improper" and say they are part of an ongoing attempt to "bury the prosecution in frivolous" filings.

They've called defense arguments that Mosby has several conflicts of interest in the case "illogical, unsupported, frivolous, and unprecedented."

A spokesman for the medical examiner's office has declined to comment on Allan's meeting with prosecutors.

Gray, 25, died on April 19 after suffering a severe spinal cord injury while in police custody. Six officers involved in his arrest and transport have been charged with crimes ranging from murder to assault. All have pleaded not guilty.

Amy Dillard, who teaches criminal law and criminal procedure at the University of Baltimore, said Williams' ruling helps avoid the prosecutor-as-witness conflict the defense is arguing.

"If the judge did not quash the subpoenas, then at the hearing, the conflict would be present," Dillard said. "If the defense attorneys are allowed to call those witnesses that they have subpoenaed, then at that very hearing the judge would have to decide whether there is a conflict or an appearance of conflict between the Baltimore state's attorney serving on a case in which she is also a witness."

"He would have been allowing the circumstances that could justify a recusal to actually happen in the hearing," she said.

Instead, Dillard said, Williams can ask the defense attorneys and prosecutors to lay out their arguments as to whether the prosecutors are witnesses during the hearing.

Dillard said she has seen judges come up with "work-arounds" for prosecutors to disclose whatever information they may have as a witness to the defense while remaining on the case.

David Jaros, another University of Baltimore law professor, said it is "not terribly surprising that the judge is resisting taking the state's attorney on the stand."

Jaros said Williams' rejection of the subpoenas does not prevent him from determining that prosecutors are material witnesses at some later date, based on arguments made by the defense.

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The defense attorneys in the case either declined to comment or did not respond to a request for comment. A spokeswoman for Mosby declined to comment.

The motions hearing next week is the first in which substantial issues in the case could be decided.

Williams' order to quash the subpoenas provided a look at how the hearing would be structured. He noted that both sides have agreed to spend 15 minutes each on the defense motion to recuse the Baltimore state's attorney's office from the case.

Both sides also agreed to spend 15 minutes each on the defense motion to dismiss the case entirely based on "prosecutorial misconduct." The defense says Mosby misstepped when she announced the charges against the six officers in language they say was fiery and in violation of state laws governing prosecutors' statements on pending cases.

The defense attorneys have said Mosby's public announcement tainted the pool of potential jurors.

Her office has said that by charging the officers, Mosby restored order to Baltimore "before the entire city became an armed camp or was burned to the ground."

Officer Caesar R. Goodson Jr., the driver of the police van in which Gray was injured, is charged with second-degree 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, who were involved in Gray's arrest, face lesser charges, including second-degree assault.

There are several other motions pending in the case that Williams could address next week or at another hearing scheduled for Sept. 10. Chief among them, legal observers say, is whether the case will be removed from Baltimore entirely. The defense has requested a change of venue; prosecutors have argued against it.

Another major issue to be resolved is whether the officers will be granted separate trials.

All of the officers except Goodson have requested that they be tried separately from the others. Mosby's office is seeking to try the officers in two groups, with Goodson, White, Nero and Miller together in one and Porter and Rice in the other.

Defendants must be allowed to cross-examine witnesses against them, which cannot happen in a joint trial, and some experts have said the groupings may be based on statements the officers have made that incriminate one another.

Some observers expected the hearing next week to be the first appearance in court of the six officers, who were able to avoid appearing in person for their arraignments — unusual in Baltimore.

But they might not be at the hearing either. All have filed waivers of their right to appear, an indication that they intend not to.

Williams could require them to appear or allow them to skip it, but he had not issued an order on their filings as of Tuesday.

Jaros said it is unusual for defendants in serious criminal cases to waive their right to appear, but it is "hard to speculate" on what Williams will decide because "this is such an exceptional case."

The judge and prosecutors might be just as inclined as the defense to let the defendants skip the hearing and so avoid a media circus. But missing substantive hearings raises some potential concerns. For example, defendants could come back later in the process and claim they had poor counsel and should have been at the hearings.

Another consideration, Jaros said, is "the idea that this is a process and defendants are supposed to understand what's going on, both so they can effectively assist their counsel and receive assistance from their counsel."

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