Baltimore State's Attorney Marilyn J. Mosby wants a judge to block defense attorneys from selectively releasing evidence in the Freddie Gray case — or facilitate an agreement between the two sides to post all of the evidence online in one fell swoop.
In an unusual Circuit Court filing this week, Mosby's office requested a protective order barring defense attorneys for the six Baltimore police officers charged in Gray's arrest and death from releasing any of the evidence due to them June 26 through court discovery, including Gray's autopsy.
Absent that order, however, prosecutors said in the filing they would rather accept a deal to post all of the evidence online than "remain silent" — as is required of them by law — while defense attorneys leak evidence that suits their needs, which Mosby's office said they are inclined to do.
"Indeed, if the Defendants were to consent and the court would so order, the State would have no objection to posting the entire autopsy report on the internet, along with all of the discovery in the case," the prosecutors wrote. "Defendants, however, want to have it both ways. They want the freedom to publicize selected aspects of the discovery, while requiring the State to follow the law that prevents comments in order to ensure a fair trial."
It was unclear whether the suggestion in the court filing was a rhetorical device or if the defense attorneys would consider the offer. Both the state's attorney's office and defense attorneys for the accused officers declined to comment on the motion Tuesday.
But outside legal observers said it was bizarre.
Legal ethics are a matter of law, and it's unclear if the standard requiring prosecutors to protect a defendant's right to a fair trial could be ignored if the defendant gave consent to post evidence online, said Kurt Nachtman, a defense attorney and former Baltimore prosecutor.
What's more, he said, the different standards for defense attorneys and prosecutors on releasing information — which the state laments in its motion — are in place for a reason.
"The same rules don't apply to both teams, and there's a reason for that. The state has a higher ethical obligation," he said. "The state has more power over swaying the general public than defense attorneys do. When the general public hears a defense attorney talk, they just think, 'Oh he's just advocating for his client.' The state has the power and the authority to protect the fight for justice."
Todd Eberly, a political scientist at St. Mary's College, agreed.
"There are limits on the prosecution, and there are limits because it's funded by a government that theoretically has unlimited resources," Eberly said. "And there are very few [limits] placed on the defense because we operate under the assumption of innocence."
The motion was the latest attempt by Mosby's office to restrict information in the case, but the first to suggest that the state would hold a different stance in the unlikely scenario it could offload evidence in the case wholesale.
Gray, 25, sustained a severe spinal cord injury while in police custody in April. His death a week later galvanized portions of the community to stage mass protests against police brutality. Unrest followed, culminating in looting and rioting. State and city officials called in the National Guard and implemented a citywide curfew.
Mosby filed a range of charges against the six officers involved in Gray's arrest and transport in the back of a police van.
Officer Caesar R. Goodson Jr., the van driver, is charged with second-degree depraved-heart murder, and 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.
Since the officers' indictments last month, Mosby's office and defense attorneys have sparred in court filings over access to information and the massive amount of publicity surrounding the case. Defense attorneys have argued for Mosby to be recused from the case, citing alleged conflicts of interest that she has denied. They have asked for the case to be removed from Baltimore, alleging that Mosby's widely covered news conference to announce the charges has already swayed the jury pool.
Mosby's office argued a protective order is necessary because defense attorneys "have demonstrated a likelihood of publicizing discovery materials in a manner that may jeopardize the ability to conduct a fair and impartial trial."
"The Court must not allow the discovery in this case to further fuel a defense public-relations firestorm," the prosecutors wrote. "The evidence must be made public, but its release to the public must be made in a court of law, not in defense efforts to court public favor."
Evidence is not regularly filed in court records that are accessible to the public and members of the press, but without a protective order there is nothing that prevents defense attorneys from releasing information, the state said.
Mosby's office has complained that defense attorneys have inappropriately discussed the case in public. In their filing for the protective order, the prosecutors argued that defense attorneys have been "attempting to undermine public faith in the prosecutor and the charges" through the motions they have filed in court.
Prosecutors previously requested a gag order, which would have prevented those involved in the case from speaking about it publicly but not blocked review of documents filed. That request was rejected by a judge on procedural grounds. The Baltimore Sun joined other media organizations in opposing the gag order in court.
In the new motion, the prosecutors repeatedly referred to coverage in The Baltimore Sun, including stories quoting defense motions, as evidence of the growing profile the case has in the public sphere.
The state said a Google search for the name "Freddie Gray" yielded "60,500,000 results" at the time of the motion's writing, and noted that The Sun and CNN "both maintain an entire portion of their websites dedicated to coverage of this case."
Nathan Siegel, the attorney who represented The Sun and its 18 media partners in fighting the gag order, declined to comment.
Laura Handman, a media attorney who has represented The Baltimore Sun's parent company, Tribune, in the past but not on this case, said asking for a protective order to control public knowledge in a case that has already captured such international attention seemed illogical.
"It's kind of like closing the barn doors after the horses are already gone," she said. "There are many high-profile cases which get tried all the time where there has been endless discussion of the evidence before trial and during trial, and jurors are instructed not to pay attention to the press."
Charles Tobin, another media attorney who has represented The Baltimore Sun in the past, said it "seems to be a contradiction in logic to say that the best way to ensure public confidence is secrecy."
"That's why the standard is very high to seal records and gag participants, especially in a high-profile case where public oversight is very important," Tobin said.
In the motion, the prosecutors said the state "does not seek to limit in any way the press's right to attend the trial or any pretrial hearings" and "seeks only to have justice carried out in the courtroom, not the newsroom."
To support its claim that defense attorneys should be more tight-lipped in public, Mosby's office also cited a 2003 case in which then-Montgomery County State's Attorney Douglas F. Gansler was sanctioned for making public comments about multiple pending cases he was trying.
But in doing so, the office ignored criticisms that Mosby herself was out of line when she held a news conference on the steps of Baltimore's War Memorial to announce the charges in the Gray case, Eberly said — something he found amusing.
"You pull a Gansler, and then you cite the Gansler case to justify not letting the defense play the same game?" Eberly said. "That's chutzpah."