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Decision on where to hold Freddie Gray trials to define case, stir emotions

In what could be a seminal moment in Baltimore — and in the growing national conversation about criminal justice — a judge will consider this week whether six police officers charged in Freddie Gray's arrest and death can receive fair trials in the city, given the intense media coverage and the impact on potential jurors.

Judge Barry Williams' ruling on requests to move the six officers' trials outside Baltimore could drive a host of decisions by prosecutors and defense attorneys alike, legal experts said. Such orders to move a trial are rare — but have been made in high-profile cases in Maryland and around the nation.

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Williams' ruling could lead the officers to reconsider their requests for jury trials or open avenues for appeal in the event of a conviction, the experts said. It could also raise long-standing questions about the role race plays in the courts, and whether justice can be served by juries that do not reflect Baltimore's diversity.

"The venue decision on whether or not this case will be tried in Baltimore, I think, is a difficult question, and could change the course of this prosecution," said David Jaros, a University of Baltimore law professor. "I can imagine protests if this tragedy that occurred here in the city can't be resolved here in the city."

Gray, 25, died in April after suffering a severe spinal cord injury while in police custody. His death set off a week of protests against police brutality, and his funeral was followed by rioting, looting and arson that damaged hundreds of buildings and left more than 100 officers injured. Gov. Larry Hogan called in the National Guard and Mayor Stephanie Rawlings-Blake instituted a weeklong curfew across the city.

Officer Caesar R. Goodson Jr., the driver of the police van in which Gray was injured, 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 face lesser charges, including second-degree assault. All have pleaded not guilty, and none is expected to appear at Thursday morning's hearing on moving the trials.

Last week, Williams denied defense motions to dismiss the case based on accusations of prosecutorial misconduct by Baltimore State's Attorney Marilyn Mosby and to recuse her office from the case because of alleged conflicts. He also denied a motion by prosecutors to join three of the officers in a single trial.

While pressing to move the trials, defense attorneys have argued that the officers cannot receive a fair trial in the city, given the "media frenzy" around the case. Any attempt to seat an impartial jury "would be futile given the fact that the events surrounding this case have impacted every citizen of Baltimore," they wrote in court papers.

Prosecutors have said the case may need to be moved. But they argue that the court should not "demeaningly prejudge the ability of Baltimore's citizens to fulfill their traditional duty to impartially determine the facts of criminal cases happening within their city" prior to the voir dire process, which is designed to vet potential jurors for partiality or prejudice.

In Maryland, the Gray case stands out as unique, observers said, making it more difficult to predict how Williams will rule. But similar cases have played out elsewhere.

Twenty-five years ago, a white Miami police officer was charged with fatally shooting a black man, leading to days of rioting that generated national headlines. After prosecutors filed two counts of manslaughter against Officer William Lozano, his lawyers tried but failed to have the trial moved from that city. Jurors convicted Lozano on both counts, and he was sentenced to seven years in prison.

However, an appeals court overturned his conviction, ruling that the judge was wrong to keep the trial in Miami. The trial had taken place amid fears of more violence if Lozano was not convicted — with heavily armed police and snipers around the courthouse — and that may have affected jurors, the appeals court said.

"We simply cannot approve the result of a trial conducted, as was this one, in an atmosphere in which the entire community — including the jury — was so obviously, and it must be said, so justifiably concerned with the dangers which would follow an acquittal," the judges wrote.

Lozano's retrial was moved to Orlando, where he was acquitted.

Former Dade County prosecutor John Hogan, who led the prosecution in the case, said that didn't sit well in Miami, where a lot of people "felt the change of venue was unfair — that it wasn't a trial of people from the locality, and therefore it was more difficult to accept."

He added, "In Miami, we had weeks of unrest, and people killed, and the jurors who were seated all said they would not let that affect their verdict. Obviously, the key is the defendants' right to a fair trial, but the community has to feel it has a stake in the whole justice equation as well."

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Roy Black, Lozano's attorney, said the case had to be moved given the intense publicity and the fear of violence felt by jurors — and the same is true in Baltimore.

"Any reasonably aware juror would have to know that as a consequence of whatever verdict that jury returns, there's the possibility of unrest," he said. "That adds an additional burden on the juror in terms of making a decision. We can't have jurors making a decision under the threat of violence. That would certainly skew any sense of justice in a trial."

Legal observers said officers in the Gray case have a better chance to be acquitted in a trial held outside Baltimore, but it's unclear exactly how significant a venue change would be. Cases that have been moved in Maryland have typically been those calling for the death penalty.

Baltimore officers have rarely faced charges in arrest-related deaths — and convictions are rarer still. In 2008, for example, Officer Tommy Sanders was charged with shooting an unarmed man in the back as he fled. Sanders' attorney unsuccessfully argued for a change of venue, citing citizen distrust of police, but the case stayed in the city and jurors acquitted the officer.

Officer Stephen Pagotto was charged with manslaughter in the 1996 fatal shooting of a 22-year-old man at a traffic stop, and was convicted, but the verdict was overturned on appeal. Charges against three other officers in the deaths of suspects between 1983 and 1994 ended in a mistrial and two acquittals.

If the Gray trials are moved anywhere "other than Prince George's [County], the conservative nature of the other counties in this state would lead to the acquittal of the officers," said A. Dwight Pettit, a Baltimore defense attorney who is not involved in the Gray case. "Prince George's is maybe the only county in Maryland that reflects the demographics of Baltimore City."

Pettit made similar arguments in a civil lawsuit several years ago, representing the family of Gerard Mungo Jr., a black 7-year-old who was arrested by several Baltimore officers in 2007 for sitting on a dirt bike. The family sought more than $700,000 in damages from the officers. The case, which drew substantial attention in the city, was moved to Howard County, where a jury ruled against the family even though a judge had determined that the arrest was illegal.

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In an appeal, Pettit argued the case should not have been moved to the county in part because its racial makeup — 18 percent black at the time — was different than that of the city, which was 60 percent black. The six-member county jury had one black member.

The Maryland Court of Special Appeals rejected Pettit's arguments, finding that the judge's decision to move the case to Howard County was based on "racially neutral administrative concerns."

The officers involved in the Mungo case — like those in the Gray case — include blacks and whites.

In their motion to move the Gray trials from Baltimore, defense attorneys have cited comments from a variety of officials, activists and local residents that touched on race. For example, the NAACP criticism of the police union for requesting Mosby's recusal "continues to inflame racial tensions between citizens and law enforcement which taints the potential jury," the attorneys wrote.

The venue issue also arose in the trial of Beltway sniper John Allen Muhammad, one of two people who terrorized the Baltimore-Washington region in 2002. No change in venue was granted in Muhammad's trial in Montgomery County, but another case that originated in Northern Virginia was moved.

Paul Ebert, the top prosecutor in Prince William County, Va., agreed to move the Muhammad trial to the Virginia Beach area. Part of that decision was tactical — eliminating an anticipated avenue of appeal for Muhammad. Ebert said there also were not "too many in this metropolitan area who weren't personally affected by the actions of the sniper" and could have been impartial.

Ebert acknowledged that moving a case is logistically burdensome and expensive, but said it would be "much easier to move [the Gray case] out of Baltimore in order to get a fair and impartial jury."

Black, Lozano's attorney, agreed. Jurors in that Florida case felt the threat of violence, he said, and the court can't always rely on a prospective juror's pledge to be impartial.

"You can't expect people who live in the city and work in the city not to be affected by what happens in the city," he said. "That's a very simple formula to take a look at."

But Hogan, the prosecutor in the Lozano case, said an impartial jury can be seated in Baltimore. In the Gray case, "the presumption that cases should be tried where they occurred is a good one, and a judge is going to have to decide whether that case has to be an exception."

Williams, for his part, has not provided any clues about a ruling on change of venue. At Wednesday's hearing, he noted several times that the case might be moved. But he also said defense attorneys' claims that the jury pool has been contaminated are premature.

Williams said at one point, "I'll note the purpose of voir dire ... is to ask questions to determine whether [prospective jurors] have information concerning the case, and if they have formed opinions. If they have information or formed opinions, can they put that aside and make a decision based on the evidence presented in the courtroom? Conclusory statements that actions of any individual have 'contaminated the jury pool' hold no weight with this court."

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Key court dates

Sept. 2 — Circuit Judge Barry Williams denied two defense motions: one to dismiss the case based on prosecutorial misconduct and another to recuse the office of Baltimore State's Attorney Marilyn Mosby because of conflicts, including that prosecutors allegedly made themselves witnesses in the case by investigating Gray's death. Williams also denied a prosecution motion to join three of the officers in one trial, and as a result set in motion six separate trials.

Sept. 10 — Williams is scheduled to hear arguments from prosecutors and defense attorneys on whether to move the trials out of Baltimore, based on the defense's argument that an impartial jury cannot be seated in the city.

Oct. 13 — This date was set weeks ago for the officers' trial. Now that Williams has separated the cases, it is unclear whether the date is still realistic.

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