Defense says prosecutors withholding evidence Freddie Gray 'attempted to injure himself' in previous arrest

Prosecutors have information indicating that Freddie Gray "attempted to injure himself" during a previous arrest, but have intentionally withheld it from their criminal case against the six Baltimore police officers charged in Gray's apprehension and death in April, the officers' attorneys said in a court filing Thursday.

"Based upon information and belief, the State's Attorney's Office was informed of this fact, yet failed to disclose to the Defendants any statements, reports, or other communications relating to this information," they wrote.


Gray, a 25-year-old Baltimore man with a history of arrests, died in April after suffering a severe spinal cord injury in a police van. Six officers who were involved in his arrest and transport on April 12 have been charged with violations that range from misconduct in office to second-degree murder.

All of the officers have pleaded not guilty; a trial date is set for October. In the meantime, prosecutors and defense attorneys have been battling through pretrial motions and other filings.


In their filing Thursday, the defense attorneys said prosecutors have withheld "multiple witness statements from individuals who stated that Mr. Gray was banging and shaking the van at various points" after his arrest April 12, as well as "police reports, court records, and witness statements indicating that on prior occasions, Mr. Gray had fled from police and attempted to discard drugs."

A spokeswoman for State's Attorney Marilyn J. Mosby declined to comment. But in a court filing, prosecutors have said they gave defense attorneys all the evidence to which they are entitled last month as part of the discovery process.

The defense attorneys also said that Mosby failed to disclose her office's participation in a "private meeting" with Assistant Medical Examiner Carol Allan before receiving Gray's autopsy report, which ruled his death a homicide.

They also said Mosby was told by police that a knife found on Gray was spring-assisted — and thus illegal — before she brought charges against the officers.


In announcing the charges on May 1, Mosby said the knife was legal, and Gray should not have been arrested.

The defense attorneys wrote that they have "been forced to spend hundreds of hours collectively investigating the State's violations in order to understand the full breadth of the harm."

"While the defense has now obtained some of this evidence through its own sources, the defense has no idea of what else the State has failed to disclose."

They asked the Circuit Court to sanction prosecutors in Mosby's office for the alleged omissions and remove them from the case, to exclude evidence that they say was improperly omitted from discovery, to force the release of a long list of withheld information that they say they found through their own investigation, and to compensate them for that investigative work.

They list several allegations against prosecutors but say the list "is not all-inclusive and any inaccuracies fall squarely at the State's door."

Defense attorneys declined to comment on the motion.

The allegation that Gray attempted to injure himself during a previous arrest speaks to questions that have swirled around his death.

Some observers have speculated that officers gave Gray a "rough ride" in the van, stopping and starting suddenly to bounce him around. Others have speculated that Gray might have tried to injure himself in pursuit of a payout from police. Neither theory has been proved.

A Baltimore police task force assigned to the Gray case investigated and said it found no evidence of an arrest, detainment or any contact with police officers in the days immediately before his arrest April 12. They also found no evidence he had been in a neighborhood fight the day before he suffered a severe spinal injury while in police custody.

The Baltimore Sun was granted special access to the Police Department's investigation, including meetings during which officers discussed those lines of inquiry.

Defense attorneys said in their motion that there are "multiple statements, reports, data and other evidence" — including evidence they say was produced by the police task force — that were not produced by prosecutors in discovery last month or during an "open-file" review of the evidence last Friday.

They said the state has withheld the opinion of a neurosurgeon retained by the task force that "no injury occurred to Mr. Gray outside of the transport van," and that the task force could not determine where along the route Gray was injured.

They also said the prosecution has withheld witness statements, allegedly provided during the grand jury review of the case, that Gray was on his knees at the fifth and last stop in the van ride, and a police re-creation of the route the van took using advanced scanning technology.

They said the evidence could shine more light on when, where and how Gray was injured, potentially helping the defense of one or more of the officers, all of whom interacted with Gray in different ways at different points during his arrest.

Witness statements that Gray was kneeling at the fifth stop of the van, for instance, "would tend to prove that Mr. Gray's spinal fracture had not yet occurred and therefore would tend to prove the innocence of some, if not all, of the officers involved," they wrote.

The evidence — including what was said between prosecutors and Allan, the medical examiner — could also raise questions about the actions of Mosby and other prosecutors, they said, supporting an argument that they be removed from the case.

"They blurred the line between witness, investigator, and attorney during the pre-charging phase of the investigation," the defense attorneys wrote. "This was not a 'get ready for trial' meeting; rather, this was a meeting which took place before the cause of death was even determined.

"This meeting puts the State squarely in the center of the circumstances leading to Dr. Allan's opinions — they are essential witnesses."

Bruce Goldfarb, a spokesman for the medical examiner's office, said the office does not comment on cases under litigation.

Disagreements over the discovery process are not uncommon in high-stakes cases such as homicides, according to legal analysts.

"Discovery disputes are most frequent in homicide cases because the stakes are so high," said Baltimore attorney Brian Thompson. "People's lives are on the line."

Amy Dillard, who teaches criminal law and criminal procedure at the University of Baltimore, said defense attorneys typically want as much evidence as possible — even if a prosecutor contends it is irrelevant — because it might help them as they devise their defense theory and strategy.

The fact that there have been multiple investigations into Gray's death could make this discovery dispute unusual, Dillard said.

"She [Mosby] may have four times as much evidence as she would normally have," Dillard said. She served on the board that reviewed the death of Tyrone West, who died in Baltimore police custody.


The driver of the police van, 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.


None of the officers have yet appeared in court, but attorneys have taken full advantage of the motions process to wage a full legal battle.

The new defense motion follows others in which the defense attorneys have argued that prosecutors failed to hand over evidence from the independent investigation that Mosby said her office conducted before bringing charges against the officers, and withheld applications for warrants to search the officers' cellphones that they "shopped" around to different judges.

Prosecutors have denied the judge-shopping allegations. They have also said that they intended to ask for sanctions against the defense for raising "deliberate falsehoods" in motions in the case.

Baltimore Sun reporter Justin George contributed to this article.


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