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Freddie Gray case: Private bench conferences reveal bicker and banter with judge, prosecutors and officers' attorneys

Revealed: private bench conferences under white noise in officers' trials in Freddie Gray case

The attorneys had gathered under the cover of white noise at Circuit Judge Barry Williams' bench during testimony in the trial of Edward Nero, one of the six Baltimore police officers charged in the arrest and death of Freddie Gray.

"Stop whining," Williams said.

Williams had ruled that discussion of the knife Gray was carrying would not be allowed to come up, on the theory that its discovery came after the alleged crime and was therefore irrelevant. Now Nero's attorney Marc Zayon was protesting, saying it was a relevant fact that prosecutors were dancing around.

"Stop whining," Williams said again. "I'm comfortable with what the state is doing, because they have a right to go to the line. And when they cross it, I will smack them back. I will do the exact same thing to you. You go to the line, you cross the line, I smack you back."

Zayon continued to protest. "Hush over there," Williams told him.

The exchange is contained in transcripts of the now-concluded trials of the officers charged in Gray's April 2015 death from injuries sustained in police custody. Three of the four trials ended in acquittals by Williams; one was a mistrial after a jury couldn't reach a unanimous decision. Charges against three other officers were dropped.

In all of the trials, extensive conversations took place at the bench — and out of earshot of the public — as Williams attempted to hash out differences. In Baltimore, such conversations are part of the official record but withheld from public inspection while proceedings are pending — a rule imposed in 2010.

The bench conferences reveal disputes over evidence, attorneys seeking guidance on how to craft questions without running afoul of Williams, and light-hearted moments. They come into focus as new information from the officers' trials is being released for the first time, including previously-sealed motions in which prosecutors and attorneys argue over the admissibility of certain evidence and testimony.

One key bench conference exchange shows prosecutors' frustrations after Williams ordered them to turn over their notes and other documents from before the charges were filed against the officers.

Prosecutors had publicly declared they had conducted an investigation that was independent of the Baltimore Police Department — which defense attorneys argued meant that their documents would have to be turned over. Williams agreed.

Normally, prosecutors' "work product" is not disclosed to defense attorneys, and Chief Deputy Michael Schatzow protested that e-mails discussing the charges, and the strengths and weaknesses of the case, were "classic attorney-opinion work product."

"It wasn't attorney work product, because you were investigating the case. That's what happens when you're going to be the sole investigator," Williams told prosecutors.

Deputy State's Attorney Janice Bledsoe protested. "No, judge, we were investigating with BPD."

"Here's the thing," Williams said. "You simply cannot have it both ways. You can't sit here and say that you did this independent separate investigation, then say, we did it with BPD. That's what's out there. … That's what you told the world."

"I know you don't like — I absolutely, positively know you don't like what I've done. And I understand that. It is based on the representation of your office about a separate, independent investigation."

At another point, during the jury trial of Officer William Porter last December, prosecutors and defense attorneys argued over a memo in which a police officer said Gray had mentioned a previous back injury, and whether prosecutors had told the medical examiner who performed Gray's autopsy that he had been previously injured.

Bledsoe stressed there was no medical evidence that such an injury had ever occurred and called the conversation "ridiculous," saying it was based on "semantics." Williams shot her down both times, saying the question was fair.

Bledsoe said police were trying to explain away Gray's injuries.

"The ironic part is that BPD is the one that has always alleged a pre-existing condition. And they have continued to come up with zero," Bledsoe told Williams. "Cash for crash, there were none. He fell off the stone wall, none. He was running so fast, and he fell the day before, none. We've never contended that he had a pre-existing condition. It's always been the police department that has always contended and thrown it out there."

During the trial of Officer Caesar Goodson Jr., the driver of the van inside of which prosecutors said Gray sustained a severe injury, defense attorneys were prohibited from showing a video in which a cadet demonstrated that Gray could have unbelted his seat belt even if it had been fastened.

"That's not what this trial is about," Williams told attorney Andrew Graham. "We know for sure that Mr. Gray wasn't seat-belted. So since he wasn't seat-belted, I don't understand why seeing a video where someone was seat-belted and could get out of the seat belt matters."

Attorneys were sometimes summoned to the bench to discuss interruptions in the courtroom, including emotional reactions to evidence and testimony from members of Gray's family.

During Porter's trial, Williams fumed when the cell phone of a member of State's Attorney Marilyn Mosby's executive protection detail went off. Spectators had been repeatedly admonished about having phones on, and were threatened that they would be confiscated.

"Do you understand that if it was anyone else right now, they would be out of my courtroom, and they would be forced to stay out of my courtroom?" Williams said to prosecutors.

Mosby entered the courtroom each day with three bodyguards, in addition to the existing courtroom sheriff's deputies. "If she feels the need to have security in my courtroom, and I'm not really sure why, her security needs to be in the back of the courtroom," Williams said.

At another point, defense attorneys moved for a mistrial after observing Mosby speaking with a witness, one of Gray's friends Brandon Ross, in the hallway while he was still on the stand. Mosby was nearly asked to approach the bench to discuss what was said, until Williams — believing that would be a spectacle for jurors — opted to call Ross and ask him his version. He said Mosby had only given him encouraging words.

Prosecutors said they would talk to Mosby about speaking to witnesses, with Williams joking that they proceed carefully "for employment purposes."

"I was going to go tell her to knock it off," Bledsoe said.

"Oh, wow. You may want to be careful with that," Williams responded. "That's a different issue for a different day."

At Goodson's trial, prosecutors made a similar complaint about police union president Gene Ryan talking to police witnesses outside of the courtroom.

"It could be completely innocuous but it's enough that it made me want to know who he was," Bledsoe said.

Many other exchanges were lighthearted and brief. One of Goodson's attorneys, Amy Askew, told Williams during a bench conference that she was not deliberately trying his patience.

"You're not. See the problem is, it looks like I'm upset, but I'm not," Williams said. "This is my normal."

Porter defense attorney Joe Murtha stated a preference for how he would like to conduct a cross-examination.

"I'm sure you would," Williams said. "I'd prefer to be 6'2", I keep telling you people."

During Nero's trial, Bledsoe said she wanted to use a PowerPoint to help organize her thoughts for closing arguments. Zayon said he was "old school" and didn't use PowerPoint.

Schatzow interjected: "I'm so old, I use a quill."

jfenton@baltsun.com

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