Defense attorneys for the officers charged in the Freddie Gray case anticipate their clients will be indicted by a grand jury in the next two weeks.
The attorneys have asked that a stenographer be appointed to transcribe the grand-jury proceedings or that an audiotape recording be made. They claim misinformation was included in the original charging documents, underscoring the need to know what prosecutors tell grand jurors.
"It is imperative to have access to the comments of the presenting prosecutor and the instructions pertaining to the applicable law made by the prosecutor to the grand jurors," states the motion, which was filed Monday.
The Baltimore grand jury includes up to 23 people who hear cases presented by prosecutors over the course of four months.
Unlike high-profile cases in Ferguson, Mo., and Staten Island, N.Y., Baltimore State's Attorney Marilyn J. Mosby chose to file charges against the six officers involved in the arrest and transport of Freddie Gray rather than leave the decision up to a grand jury.
That makes a Baltimore grand-jury indictment more of a procedural step to move a case filed in District Court to the Circuit Court, where more serious criminal cases are heard. The indictment typically occurs before the preliminary hearing for the District Court case, which for the officers is set for May 27.
Former Baltimore Assistant State's Attorney Tyler Mann said he never saw a case rejected in a grand jury, where prosecutors are able to present a favorable narrative. A grand jury is charged with deciding whether charges can be pursued, not whether a suspect is guilty or innocent.
Still, Mann said the grand jurors have the opportunity to press the case.
"This is such a hot-button thing, they may say, 'We want more facts, we're not just going to rubber-stamp this,'" Mann said. "They could say, 'No indictment until more facts are presented.' This type of case will get more scrutiny than your average, run-of-the-mill drug case or robbery."
A. Dwight Pettit, a veteran defense attorney, said the grand jury hears only the prosecution's case and evaluates it based on a standard of probable cause, "one of the lower standards in criminal law."
"I don't see why the grand jury would do anything else [other than indict], if she laid out her interpretation of the facts," Pettit said.
As for the defense motion, Mann said a stenographer is already a part of the process and an audio recording would be an unusual request.
Legal experts have said Baltimore prosecutors could use the grand-jury process to amend the pending charges, if they believe changes are necessary. The defense has argued that Mosby erred when she said officers made an illegal arrest of Gray for having a knife, contending the knife was not allowed under the city code.
If investigators from the case or witnesses testify before the grand jury, their testimony can be brought out during the criminal trial if there are inconsistencies, Mann said.
By law, any possible grand-jury proceedings are secret and the state's attorney's office has declined to comment.