Three of six Baltimore police officers charged in the death of Freddie Gray argued in court filings this week that they provided statements to police investigators under duress because they feared losing their jobs.
Two of the officers said that when investigators asked them to provide statements about the circumstances surrounding Gray's arrest, they were led to believe they were doing so as witnesses — not as suspects.
Another said she provided a statement without being advised of her Miranda rights, then was ordered to return five days later to be read her rights and provide another statement.
Now those statements are key evidence in the case. Defense attorneys for Lt. Brian W. Rice, Officer William G. Porter and Sgt. Alicia D. White — all charged with manslaughter — have asked that those statements be suppressed, which would prevent prosecutors from using them in court.
It is unclear what information the officers provided in the statements that Baltimore State's Attorney Marilyn J. Mosby turned over to defense attorneys as part of discovery.
Attorneys for Rice, Porter and White argued that their clients were not properly advised of their rights during their interrogations. Two other defendants, Officer Garrett E. Miller and Officer Edward M. Nero, made the same argument in earlier filings.
"Because the defendants subjectively felt that any refusal to cooperate in the investigation would result in their termination, and such belief was objectively reasonable, and because they were asked to waive their Fifth Amendment rights, their statements" should be suppressed, attorneys for Rice and Porter argued in a motion.
Mosby's office did not respond to a request for comment.
The five officers have asked to be tried individually, claiming their rights to a fair trial would be violated if they were tried together.
The sixth defendant, Officer Caesar R. Goodson Jr., has not requested to be tried separately, but would be if the other officers' requests are granted.
Prosecutors have asked to try Goodson, White, Miller and Nero in one trial, and Rice and Porter in another.
Defendants often argue that evidence against co-defendants can paint them in an unfair light. Joint trials also can be problematic if defense strategies are antagonistic, such as when co-defendants claim innocence and blame each other for the crime.
"Failure to sever will be unfairly prejudicial to the defendant because the jury will accumulate the evidence of the various crimes charged of the other defendants and find guilt when they would not have done so if the offenses were considered separately," White's attorney wrote in a filing.
The motions are the latest sign of the officers' attorneys diverging in their defenses after putting up a unified front in recent months.
When Mosby announced the charges in May, union officials said none of the officers was responsible for Gray's death and accused prosecutors of rushing to judgment. The officers' attorneys collectively accused Mosby of grandstanding.
Gray, 25, sustained a spinal cord injury while in police custody on April 12 and died of his injuries April 19, inspiring protests in the city against police brutality. On the day of his funeral a week later, rioting, looting and arson in the city captured the international attention.
The Police Department's Force Investigation Team launched an investigation on the day that Gray was arrested and found unresponsive in the back of a police transport van.
Mosby's office conducted a parallel, independent investigation with the help of the Baltimore Sheriff's Office and announced charges soon after receiving a preliminary report from the Police Department.
Goodson, the driver of the police van in which prosecutors say Gray was injured, has been charged with second-degree depraved-heart murder.
Goodson was the only officer who did not give a statement to officers early on in the investigation and has not challenged in court the use of any statements he has made since then.
According to an overview of evidence Mosby submitted to the court, Goodson made two statements, though it's not clear when. It's also unclear what he said, and whether it was substantive.
Nero and Miller, who were involved in Gray's initial arrest, face lesser charges, including second-degree assault.
The six officers have pleaded not guilty to all charges.
Investigators with the Force Investigation Team brought Rice in for questioning within hours of Gray's arrest, according to a motion to suppress his and Porter's statements.
Rice had returned to bike patrol in the Western District when he received orders to report to police headquarters. His interrogation began at 1:24 p.m., exactly four hours after the first call went out for a medic to respond to the Western District station where Gray had been transported.
Investigators told Rice the interview was "strictly" a procedural matter, according to the motion, and that he was being interviewed before the other officers involved in Gray's arrest because "rank has its privileges."
Investigators repeatedly referred to him as "L.T.," in deference to his rank, which put him "at ease," according to the motion.
Porter also was ordered to report to headquarters for questioning. "He was not asked if he was willing to report: he was told," the motion stated. "It was a question of when, not if."
Rice and Porter acknowledged they were read their Miranda rights, and that they signed a form indicating they were aware of their rights under the Law Enforcement Officers' Bill of Rights, a state law that provides officers certain protections in internal reviews.
But both contend that signing the form was not equivalent to their waiving rights afforded to them under the law.
Investigators also called White to give a statement on the day of Gray's arrest, and she did so, according to another motion.
Five days later, she said, she returned to give a second statement after being told "investigators 'wanted to clear things up' and that the State's Attorney had additional questions for her based off of her initial statement," the motion stated.
White's attorneys argue that because the initial statement was taken involuntarily, based on her fear of being fired, the second cannot be used either. They cite the "poisonous fruit" doctrine that holds that any evidence collected as the "fruit" of an earlier, involuntary statement is tainted.
Legal observers said the motions are not unexpected, but that the officers face legal hurdles in trying to suppress their statements.
"The court's going to have to look at the factual situation for each individual officer," said Karen Kruger, an attorney with Funk & Bolton and general counsel to the Maryland Chiefs of Police Association.
Without "direct coercion" — such as being told they would be fired if they didn't talk — it might be hard to prove the statements were involuntary, she said.
Kruger also said arguments based on the Law Enforcement Officers' Bill of Rights, or LEOBR, could be futile, given that those protections largely apply to administrative reviews, not criminal investigations.
"The reason that we have a motion to suppress or a motion to keep evidence out is to protect against constitutional violations, and if there is a violation of the LEOBR, that's not a constitutional violation," she said.
Porter and Rice's attorneys argued that the Force Investigation Team investigates administrative and criminal matters, and that investigators never explained to the officers "whether the investigation was criminal or administrative in nature."
Lee Kovarsky, a law professor at the University of Maryland, said White's "poisonous fruit" argument also depends on what investigators told her.
He said that successfully arguing her first statement is inadmissible because she wasn't advised of her Miranda rights depends on whether she was "in custody" at the time of the interview, or whether she was simply asked to provide information at her workplace.
"She didn't have to be Mirandized if she wasn't in custody in the fashion of an arrest," he said.