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Baltimore State's Attorney Marilyn Mosby announced charges against six police officers involved in the arrest and transport of Freddie Gray at a news conference on May 1.
Baltimore State's Attorney Marilyn Mosby announced charges against six police officers involved in the arrest and transport of Freddie Gray at a news conference on May 1. (Lloyd Fox / Baltimore Sun)

Attorneys representing the six police officers charged in the arrest and death of Freddie Gray say Baltimore State's Attorney Marilyn J. Mosby has not shared evidence from her office's independent investigation into the incident.

In a motion filed Friday in Baltimore Circuit Court, the attorneys sought a subpoena demanding that she turn it over.

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Mosby's office conducted an investigation, with the help of the Baltimore City sheriff's office, separate from the Police Department, which conducted its own probe. Gray died in April of severe spinal cord and other injuries sustained while in police custody.

On the day Mosby announced charges against the officers, she said her team "worked around the clock — 12- and 14-hour days" — and recounted their work interviewing dozens of witnesses, watching hours of video footage, listening to hours of police videotaped statements, surveying the route of the van in which Gray was riding and reviewing voluminous medical records.

But defense attorneys say Mosby didn't include files from the investigation when her office turned over evidence it expects to use in the case to the defense last month.

"It is the belief of undersigned counsel that the investigation conducted by the Office of the State's Attorney will be relevant and necessary to the defense in this case," the defense attorneys wrote.

Rochelle Ritchie, a spokeswoman for Mosby, declined to comment.

The defense attorneys asked that the subpoena require the evidence be turned over by July 24. All of the officers have pleaded not guilty, and a trial date has been set in October.

The subpoena seeks "any and all documents, evidence, witness statements, emails, and notes produced as a result of the investigation" as well as internal emails, phone records and text messages sent among Mosby's staff and various other law enforcement agencies in the city.

In addition, the subpoena seeks communications between Mosby's office and the offices of Mayor Stephanie Rawlings-Blake and William "Billy" Murphy Jr., the attorney for Gray's family.

A list of evidence Mosby's office has already produced in discovery doesn't indicate that any employees from the sheriff's office or state's attorney's office provided statements — though several Baltimore police detectives and employees did provide statements in addition to the defendants themselves.

The defense filing is one of many motions to be decided by Circuit Judge Barry Williams, including a change-of-venue request and a request for a protective order to prevent the public release of evidence.

Mosby announced the charges against the officers just one day after receiving findings from the official police investigation.

At that announcement on the steps of Baltimore's War Memorial on May 1, Mosby described the lengths to which her office had gone to conduct its own investigation parallel to the police review.

She also said that her office had "leveraged the information made available to us by the Police Department, the community, and the family of Mr. Gray."

"The findings of our comprehensive, thorough and independent investigation, coupled with the medical examiner's determination that Mr. Gray's death was a homicide, which we received today, has led us to believe that we have probable cause to file criminal charges," she said at the time.

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Kurt Nachtman, a defense attorney and former prosecutor in an investigative unit of the Baltimore state's attorney's office, said it's unclear if Mosby's independent investigation would be subject to discovery.

The "thought processes and the legal work product of a lawyer" are typically not subject to discovery, but investigators' findings, unlike an attorney's legal work, can be obtained through discovery, Nachtman said.

"If you are an investigator, then you are not an attorney," he said.

When he worked in the state's attorney's investigative unit, Nachtman said, he had independent, private investigators work on his cases, and he would compile their findings so as not to confuse his role.

"We wouldn't want to do anything that would make us a witness in the case," he said. "By Mosby indicating that she conducted an independent investigation, it raises an issue — and I think a legitimate issue — that the defense attorneys are trying to tease out."

Nachtman said he would often turn over the investigators' findings, and any emails with police that could be construed as favorable to the defendant, during discovery. By asking for Mosby's investigative files, he said, the defense could be looking for evidence that would be beneficial to the defense but missed by prosecutors.

"What if the Baltimore City Police Department interviewed a person and then the sheriff's office interviewed the same person [as part of Mosby's investigation]?" Nachtman asked. "What if their statements were similar but slightly different? And if there was a difference, is that difference material?"

Gray, 25, was arrested and suffered what would be fatal injuries on April 12. Mosby said she deployed members of her "police integrity unit" April 13 to investigate the circumstances surrounding Gray's injuries. Gray died on April 19, sparking protests over police brutality across the city.

On April 25, police and protesters clashed downtown. On April 27, more serious unrest — including looting, rioting and arson — broke out. Gov. Larry Hogan called in the National Guard; Mayor Stephanie Rawlings-Blake instituted a nightly curfew.

On April 30, police officials delivered findings from their own preliminary investigation into Gray's death to Mosby's office. On May 1, the office of the chief medical examiner delivered autopsy findings to Mosby's office that concluded Gray's death was a homicide.

Within hours of receiving the autopsy findings, Mosby announced charges against the officers, all of whom have since been indicted.

Officer Caesar R. Goodson Jr. 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.

Many viewed Mosby's announcement as a watershed moment against police brutality — praising the young prosecutor for swiftly bringing charges against the officers. Mosby's office also has promoted her actions, saying they restored order "before the entire city became an armed camp or was burned to the ground."

Others decried Mosby's actions as misguided. Michael E. Davey, an attorney who works with the Fraternal Order of Police Lodge 3 — the local union representing Baltimore police officers — called the charges an "egregious rush to judgment."

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