Baltimore State's Attorney Marilyn Mosby said she will seek to withhold the autopsy report on Freddie Gray's death. (Baltimore Sun)
Baltimore State's Attorney Marilyn Mosby plans to seek a protective order that would block the release of Freddie Gray's autopsy report and other "sensitive" documents as she prosecutes the six police officers involved in his arrest.
Mosby told The Baltimore Sun that prosecutors "have a duty to ensure a fair and impartial process for all parties involved" and "will not be baited into litigating this case through the media."
But an attorney for one of the officers said the effort shows that "there is something in that autopsy report that they are trying to hide."
"Mrs. Mosby is the one who did an announcement discussing what she said the evidence was in a nationally televised speech," said Ivan Bates, who represents Sgt. Alicia White. "Now that it is time to turn over the evidence, to ask for a protective order is beyond disingenuous.
"It's as if she wants to do everything to make sure our clients do not get a fair trial."
Gray, 25, died in April after suffering a severe spinal cord injury in police custody. Mosby has charged the officers with violations ranging from misconduct in office to, in one case, second-degree murder. All six officers have been released on bail.
Baltimore's chief prosecutor declared her intention to seek the protective order in a court filing Monday. She also asked for more time to respond to defense motions that she and her office be removed from the case and that the case be tried outside Baltimore.
The move is the latest effort by Mosby's office to restrict information in the high-profile case. Her office has also sought a gag order to prevent participants from discussing the case in public, and has broken with a long-standing practice by not giving a copy of the autopsy report to Baltimore police.
In a response to Mosby's latest filing, defense attorneys said Wednesday that they have been denied an outline of evidence and claims against the officers, and have not been allowed to inspect a knife that was taken from Gray during his arrest.
Bates said the protective order would allow only prosecutors and defense attorneys to see the documents, and could require the court to seal all new filings that make reference to information in the documents.
In that way, he said, it would be more restrictive than a gag order.
"Nobody would know anything but the state and the defense, so they would totally hide it from the public," Bates said. "If your case is as good as you said it was, why don't you just show the evidence? … You can't holler and say, 'I'm about accountability for the citizens,' and then run around filing for a protective order."
The Sun is one of 19 news organizations contesting Mosby's gag order request.
Gray's death on April 19, amid a national debate over police brutality, touched off days of protests. On the day of his funeral, the city erupted into several hours of riots, arson and looting.
Mosby filed charges against the officers on May 1 based on what she said was an independent investigation conducted by her office. A grand jury indicted White, Lt. Brian Rice and Officers Caesar Goodson, William Porter, Edward Nero and Garrett Miller three weeks later.
In her filing Monday, Mosby said prosecutors had "attempted to reach an agreement" with defense attorney Michael Belsky for more time to respond to the defense motions. Belsky is defending Rice and serving as the "designated contact attorney" for all of the officers.
Belsky agreed to give the state more time to respond to defense motions to dismiss the case, Mosby said, but only "in exchange for the State releasing certain discovery," including Gray's autopsy report, medical records and "all statements made by the defendants."
He did not agree to give the state more time to respond to the motion to remove the case from Baltimore, Mosby said.
Mosby said her office did not agree to "barter" over the documents.
"Because the State intends to seek a protective order to restrict the dissemination of such sensitive discovery in this matter," she wrote, "the State was not willing to so barter, and so no agreement could be reached."
The deadline for the state to respond to the defense motions is June 11. Mosby is asking for an extension until July 10.
"Defendants' Motions in total span over 150 pages, setting forth a multitude of legal arguments and factual allegations that the State intends to answer diligently," she wrote.
Last month, Deputy State's Attorney Michael Schatzow called a defense motion to dismiss the case or have Mosby recused from it "premature, frivolous, illogical, and unsupported by authority when it is not contradicted by authority."
Mosby said the officers would "suffer no prejudice" from an extension because arraignments aren't scheduled in the case until July 2.
The officers' attorneys, in their response, said prosecutors mischaracterized conversations between the sides and failed to provide a reason why an extension is needed. They said the arraignment date has "no impact" on the need for timely responses to their motions.
They noted Mosby's office took less than two weeks to conduct an investigation into the officers, and said they had "deep-seated concerns" about Mosby attending public events such as a Prince concert and a circus and doing interviews with outlets such as Vogue Magazine while the lives and careers of the officers "remain in jeopardy."
"It is the position of the Defendants that they have been unlawfully charged, that the charges are the by-product of a State's Attorney's Office with deep conflicts of interest, and that the charges are mired by prosecutorial misconduct, which is ongoing in nature," the defense attorneys wrote. "These issues are impairing the Defendants' rights of due process — rights which continue to be injured with each passing day."
The attorneys added that time "is not a luxury as the careers, livelihoods, and liberty of the Defendants hang in the balance, four of whom are charged with felonies and thus are no longer receiving the salaries necessary to support themselves and their families."
White, Rice, Goodson and Porter have been charged with felonies.
"It's very disconcerting that six [defense] lawyers were able to write these motions in two weeks, and the state's attorney's office has over 200 or some attorneys and they need an extension," Bates said. "To me, it's almost as if the state's attorney's office is playing games."
Gregg Leslie, legal defense director for the Reporters Committee for Freedom of the Press, said judges sometimes grant gag orders or restrictions on evidence in high-profile cases because they feel the heightened scrutiny amounts to a "big headache" for those involved in the case.
But that isn't how the law should work, Leslie said, and Mosby's office should explain why it believes a protective order is warranted — especially considering that Gray's death removed standard concerns about his medical privacy.
"They should have to show there is a compelling state interest served by keeping this confidential, and that their solution is the most narrowly tailored one," Leslie said.
That could include redacting only certain details in the documents, he said.