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Defense points to new Freddie Gray evidence in calling for sanctions against prosecutors

Prosecutors have turned over new evidence in the Freddie Gray case that defense attorneys say should have been handed over months ago, including witness statements that Gray was "losing his mind" and kicking and shaking the police transport van where he sustained a fatal spinal cord injury.

Attorneys for the six Baltimore police officers charged in Gray's arrest and death asked that the court sanction prosecutors, repeating a request made in July. The defense wants prosecutors to hand over additional evidence and the court to exclude from trial any evidence withheld from them.

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Prosecutors allege the officers failed to secure Gray in a seat belt in the van and to provide timely medical attention. Gray, 25, was arrested and injured April 12, and died a week later.

The latest evidence, provided to the defense in recent weeks, could be key to the defense, the officers' attorneys said. They argued that Gray's erratic behavior in the van not only indicates it may have been reasonable under the circumstances to not place him in a seat belt but also that Gray may have caused his own injuries.

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"Given that the State has not only failed to satisfy its discovery obligations, but has also misrepresented the nature and extent of its disclosures to this Court, the Defendants are in no position to trust the State's assertion that it has disclosed everything to which the Defendants are entitled," the defense attorneys wrote in identical filings in each of the six cases.

A spokeswoman for State's Attorney Marilyn J. Mosby's office did not respond to a request for comment Wednesday.

In a war of words in court filings, prosecutors also have taken issue with defense tactics and asked for sanctions. For instance, prosecutors contend defense attorneys used their subpoena power without the court knowing to obtain the text messages of a prosecutor working on the case.

Prosecutors routinely file additional evidence in criminal cases as it becomes available to them. However, the defense argued that the prosecution in the Gray case has been sitting on evidence improperly.

In the latest filing, defense attorneys included examples of the evidence that Mosby's office has turned over to them in supplemental disclosures since August — after the initial discovery deadline June 26.

The evidence included statements from witnesses to Gray's arrest and transport, a 45-minute trip from Gilmor Homes to the Western District police station.

Those witnesses included someone who claimed to have fled from police with Gray before his arrest and a police officer who was not charged and saw the transport van's second stop, during which officers shackled Gray's legs. Another statement came from Donta Allen, the man who was placed in the back of the van with Gray at its last stop before arriving at the police station, where Gray was found to be unresponsive.

The recent evidence also included a statement from a police officer who recounted a previous chase in which Gray allegedly discarded heroin and internal police documents from 2011 that described the area where Gray was arrested as particularly violent. The document encouraged officers there to conduct "stop and frisks" of suspicious individuals.

Gray's death inspired widespread protests, and his funeral April 27 was followed by rioting, looting and arson.

Police and prosecutors conducted parallel investigations before Mosby filed charges May 1.

According to a copy of Gray's autopsy obtained by The Baltimore Sun, Gray suffered a single "high-energy injury" to his neck and spine most likely caused when the police van in which he was riding suddenly decelerated.

The officer who drove the van is charged with second-degree murder, while the other officers are charged with a range of crimes from manslaughter to second-degree assault. All six have been charged with misconduct in office.

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The officers will be tried separately over six months, with the first trial scheduled Nov. 30. All of the officers have pleaded not guilty.

Defense attorneys, in their latest motion, laid out a series of disclosures from prosecutors that they argue came too late.

On Aug. 6, the attorneys wrote, prosecutors disclosed to the defense for the first time police records that included a statement by Allen that he heard Gray "banging" his head against the metal divider in the transport van — before the state contends Gray suffered his fatal injury.

Allen has since denied hearing such sounds.

Also on Aug. 6, prosecutors disclosed another witness at the intersection of Mount and Baker streets, the defense said. That person told investigators that "the individual inside the police van was kicking the inner door and aggressively shaking the wagon."

On Aug. 31, prosecutors turned over a 2011 police document called the "Western District Areas of Concern/Operational Plan," according to the defense. The plan directed officers to "conduct proactive, targeted enforcement and provide a highly visible, uniformed presence in areas of the Western District that have experienced historical and current violence," including those areas where police chased and arrested Gray.

On Sept. 11, prosecutors disclosed the name of the person — excluded from the defense motion — who allegedly fled with Gray from the initial scene where bike officers spotted Gray, at North Avenue and Mount Street, according to the defense.

That person showed state investigators "the direction they ran before separating from each other" and "the direction that was most likely taken by Mr. Gray prior to his apprehension," defense attorneys said.

The defense said it should have been told earlier about the witness who fled with Gray because he or she "can help explain what Mr. Gray was doing on the corner that day, why he fled from the police, and whether he had taken similar actions in the past."

"Such information is absolutely essential to those Defendants charged with arresting Mr. Gray absent probable cause," they wrote.

Also on Sept. 11, prosecutors disclosed a statement made by an unnamed police officer who saw the transport van at Mount and Baker.

"I had noticed the wagon was shaking inside. Violently shaking inside," the officer said, according to the defense motion. "And Freddie was losing his mind."

The defense said that, given the nature of the evidence the prosecution has already withheld, the court should reconsider its earlier motion to compel the state to release evidence and sanction the prosecutors.

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