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Defense: Mosby either failed to turn over Freddie Gray evidence, or independent investigation didn't happen

Defense: Mosby either failed to turn over Freddie Gray evidence, or independent investigation didn't happen
Baltimore State's Attorney Marilyn Mosby announces charges on May 1 against six police officers involved in the arrest of Freddie Gray, a 25-year-old man who died after being injured while in police custody (Lloyd Fox / Baltimore Sun)

Attorneys for six Baltimore police officers charged in the arrest and death of Freddie Gray said in a court filing Thursday that prosecutors either failed to turn over evidence or lied about conducting a thorough investigation into Gray's death.

The evidence already provided by prosecutors is "completely devoid of any information obtained during the course of the State's investigation," the defense attorneys said, leading them to conclude that "either the State is withholding the information from its investigation, or there was no investigation."

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"Knowledge of which of these alternatives is true is essential to the Defendants' ability to prepare a proper defense," the attorneys wrote in their motion.

Baltimore State's Attorney Marilyn Mosby has said her office conducted an independent investigation into the death of Gray, 25, who died in April a week after suffering a severe spinal cord injury while in police custody. His death sparked widespread protests against police brutality and rioting that prompted a citywide curfew and the deployment of National Guard troops.

The defense motion represents the latest effort by the officers' attorneys to compel Mosby's office to provide them with documents, emails, text messages and other evidence from its investigation. Mosby said her office investigated with the help of Baltimore sheriffs, separately from a police probe into Gray's death.

Prosecutors are required by law to share any "exculpatory" evidence that would help clear a defendant of charges, and the defense said it is "difficult to imagine" that nothing in the state's investigation was "in some way exculpatory to at least one of the Defendants in this case."

According to court filings, prosecutors have turned over an estimated 52 gigabytes of digital files, including thousands of pages of the officers' emails and dozens of surveillance videos.

Other than one witness interview by an investigator in Mosby's office, the defense attorneys said, they have not received "a single document, witness interview, report, recording, or even mention of a shred of evidence procured through" the independent investigation.

A spokeswoman for Mosby said her office would "litigate this case in the courtroom," and declined to comment further.

The officers' attorneys first asked the court to issue a subpoena this month for records they believe haven't been disclosed to them, claiming investigative files had been left out of discovery that the prosecution shared with the defense in June.

Prosecutors responded last week by saying that they turned over all the evidence that the defense is entitled to under the state's discovery laws, and that they aren't required to give the defense internal communications and other work products of prosecutors who are building a case against the officers.

In the court filing Thursday, defense attorneys questioned the prosecution's argument that it doesn't need to turn over some of the evidence gathered during its investigation because it constitutes the prosecutors' privileged work product.

They contend that Mosby's investigation, like one conducted by police, was aimed at determining whether there was cause to file criminal charges. That makes it subject to discovery, unlike internal prosecutorial discussions or strategy sessions, they said. Prosecutors "chose to blur the lines" between investigative and prosecutorial actions, they said, and shouldn't be allowed to hide behind an attorney work product privilege.

"Unquestionably, if the information sought by the Defendants had been gleaned by any other investigatory entity, such as the Baltimore Police Department, the State would have no standing to defend the nondisclosure," defense attorneys wrote.

Attorneys for the officers declined or did not respond to requests for interviews.

Prosecutors contend that Gray sustained his fatal injuries while being transported in a police van.

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Officer Caesar R. Goodson Jr., the driver of the van, is charged with second-degree depraved-heart 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, involved in Gray's initial arrest, face lesser charges, including second-degree assault.

All six officers have pleaded not guilty and are scheduled for trial in October.

On May 1, Mosby cited her office's "comprehensive, thorough and independent investigation" when she announced charges against the officers. Standing on the steps of Baltimore's War Memorial, Mosby said her team "worked around the clock — 12- and 14-hour days" to interview witnesses, watch video footage of Gray's arrest and videotaped statements to police, review Gray's medical records, and survey the police van's route.

Jose F. Anderson, a law professor at the University of Baltimore and a former public defender in Baltimore, said the defense attorneys could be trying to sow doubt about the state's case in the court of public opinion. The fact that they questioned whether prosecutors conducted an independent investigation could be "more for public consumption than a court issue."

He called it a "worthwhile strategy to try to diminish the perceived strength of the prosecution's body of evidence."

David Jaros, another University of Baltimore law professor, said defense attorneys make a compelling argument that the work conducted by prosecutors is not privileged and must be turned over. He said the question before Judge Barry Williams, who will rule on the motion, is not whether the investigation occurred — but at what point the prosecutors stopped "acting like police officers" and started crafting their case against the officers.

Mosby seemed to acknowledge in her statements at the War Memorial that her office conducted its investigation "to determine whether or not a crime had been committed, not to build a case against someone after they have determined to bring a charge," Jaros said. That means she can't claim work conducted by prosecutors is protected.

Jaros said the defense likely believes "there is a lot in the file and they would like to see that evidence, both to better understand the prosecution's theory in the case, which would not be a good reason to get it, or because they are trying to find evidence that is exculpatory, which they can then use in their defense."

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