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Prosecutors have little time to decide how to proceed with next trial in the death of Freddie Gray

Prosecutors have little time to decide how to proceed with next trial in the death of Freddie Gray
Baltimore police officers Lt. Brian Rice, left, and Garrett Miller, are the next two officers scheduled to stand trial in the Freddie Gray case. They are shown here leaving a hearing at the Maryland Court of Appeals in March. (Kenneth K. Lam / Baltimore Sun)

After failing to secure a conviction in a third straight trial in the death of Freddie Gray this week, prosecutors have just days to decide how to proceed with the trial of the next police officer.

Lt. Brian Rice, the highest-ranking of the six officers charged, is due to stand trial July 5. Prosecutors face a Monday deadline to make any final pretrial filings.

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After Baltimore Circuit Judge Barry G. Williams acquitted Officer Caesar Goodson Jr. of all charges Thursday, legal analysts say, prosecutors will be looking at whether they have any additional evidence or a new strategy that could help secure a conviction.

Warren Alperstein, a defense attorney who has been following the cases, said prosecutors face a frantic few days.

"Without a doubt, they have to be extremely disappointed and probably scrambling with their efforts to revive their cases," Alperstein said. Williams "just obliterated their case and their theories."

Williams has ordered prosecutors and defense attorneys not to speak publicly about the cases.

The failure of prosecutors to win convictions against Officers William Porter — whose trial ended in a hung jury — and Edward Nero and Goodson has cast doubt on their ability to get a different result against Rice next month. But the evidence prosecutors have against Rice is not fully known. And it's not clear whether his role as a supervisor could make his case different.

Rice was one of three bike officers — along with Officers Garrett Miller and Nero — on patrol in the Western District on the morning of April 12, 2015. Police say Gray saw the officers and took off running. Rice initiated the chase.

Rice helped load Gray into a police van after his arrest. The 25-year-old Gray suffered a severe spinal cord injury while in police custody and died a week later.

A. Dwight Pettit, a defense attorney not involved in the case, said prosecutors will likely be analyzing Rice's role as a supervisor to see if there are new ways to argue that he committed a crime, even if the other officers did not.

"He may have a little bit more culpability," Pettit said. "It's all I can think of."

Nero was acquitted of all charges last month. Miller's trial is scheduled after Rice's, on July 27. The trial of Sgt. Alicia D. White, the sixth defendant, is scheduled for October. All of the officers have pleaded not guilty.

Rice is charged with involuntary manslaughter, second-degree assault, reckless endangerment and two counts of misconduct in office.

In court papers, prosecutors say Rice committed the assault by failing to secure Gray with a seat belt in the back of the transport van. They also cite that failure as the basis for the reckless-endangerment charge and one of the misconduct-in-office charges.

But in acquitting Goodson, Williams said the failure to use a seat belt can't be considered in a reckless-endangerment charge, and prosecutors had to show that that it amounted to a corrupt act to support the misconduct charge.

Rice's lawyers filed a motion this month to have the reckless-endangerment charge thrown out. After Williams' ruling in Goodson's case, Alperstein said he expects to a see another motion to dismiss all the charges, on the grounds that the issues have already been decided.

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Despite similarities in the cases, the judge has to treat each as separate. Alperstein said the prospects of getting the charges thrown out before a trial starts are probably slim but that the effort would be worthwhile.

"You've got nothing to lose and everything to gain," Alperstein said.

Prosecutors say the second count of misconduct in office is related to the allegation that Rice arrested Gray without probable cause. On that count, Williams' previous rulings could spell more trouble for prosecutors.

The area where Gray was arrested was considered "high-crime" — a legal description that gives police more latitude to investigate people — and prosecutors conceded in Nero's trial that Miller and Nero did not commit a crime by following Rice's order to chase Gray.

Rice was not involved in Gray's initial detention and arrest, according to the statements and court testimony of the other two officers, casting doubt on the second misconduct-in-office charge.

Rice did respond to the scene shortly after the arrest, and again when the van stopped about a block away. According to testimony at Nero's trial last month, Rice at one point got into the van.

Rice's role in Gray's placement in the van or his responsibility for Gray's safety as the superior officer at the scene might create a substantially different set of legal evaluations for Williams to make.

Williams has hinted that he thinks there might be grounds for a different kind of argument. In Nero's trial, he ruled that Nero "could reasonably assume that an officer, superior or not, in the back of the van would make a determination as to whether seat-belting was appropriate under all the facts that that officer was aware of at that moment."

Williams also found that Nero was reasonable in not questioning a superior officer. He came to a similar conclusion about Goodson's actions.

Baltimore defense attorney Thomas J. Maronick said prosecutors' best hope might be to adopt an approach often recommended by the British television chef Gordon Ramsay when he tries to salvage a failing restaurant. The combative cook looks at the menu and recommends slimming it down dramatically.

Prosecutors could zero in on the best parts of their case, Maronick said, and "focus on those key points and hammer away at them."

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