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Publicity surrounding Freddie Gray case becomes Exhibit 1 — and could shape outcome

In Freddie Gray case, media attention becomes 'Exhibit 1' and could impact outcome.

Intense public interest in the criminal case against the six police officers charged in the arrest and death of Freddie Gray could shape how it proceeds — and potentially establish precedent for how such high-profile cases are tried.

Both prosecutors and defense attorneys have pointed to publicity surrounding the case to buttress their arguments, often at cross purposes.

Defense attorneys have argued for a change of venue, citing a "media frenzy" that has tainted the jury pool. Prosecutors, who opposed that motion, have cited extensive media coverage when arguing that the judge should bar the release of evidence. The defense, meanwhile, has argued that Baltimore State's Attorney Marilyn J. Mosby should be removed for trying to fan the flames of public opinion.

Judge Barry G. Williams is expected to rule on these issues in the coming days and weeks. His decisions could have big implications for the Gray case and also a lasting impact on the court system itself, by establishing how to handle future cases in the media spotlight.

"This is a whole lot of case, so you have to work hard with the world watching, with your client watching, with the public watching," said José F. Anderson, a law professor at the University of Baltimore and a former public defender in Baltimore. "A case like this tests the strength of the process, and the process should be tested by a case of this size and importance, to see how it does."

Courts have yet to fully establish precedent for issues, such as venue changes, in a media-saturated environment where widespread Internet access means information about a case can be just as easily accessed in Sandtown-Winchester, the neighborhood where Gray was arrested, as anywhere.

"It would be hard to find a community completely immune from this publicity. That's one of the aspects of the Internet — it has such a broad reach, there is almost no news that's strictly local anymore," said Laura R. Handman, a media attorney who has represented The Baltimore Sun's parent company, Tribune, in other cases.

Gray, 25, died in April after sustaining a spinal cord injury while in police custody. His death sparked protests against police brutality, and widespread looting and rioting on the day of his funeral. The events became a cultural flash point and were covered by media around the world.

The fact that Mosby charged the officers — in stark contrast to cases across the country in which officers were cleared of wrongdoing without a trial — only fueled the public's interest.

Officer Caesar R. Goodson Jr., the driver of the police van in which prosecutors say Gray was injured, has been 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, who were involved in Gray's arrest, face lesser charges, including second-degree assault.

All have pleaded not guilty.

Defense attorneys for the officers did not respond to requests for comment for this article.

Mosby's office repeated a stance it has maintained for weeks, that it intends to try the case in the courts — and not through the media.

Williams is barred from publicly commenting on active cases.

In a flurry of motions in recent weeks, attorneys on both sides have repeatedly referred to widespread publicity and media coverage. Mosby's office has noted that a Google search for Freddie Gray yielded more than 60 million hits.

Those headlines are not only the subject of court motions, but in some cases included in the motions, along with readers' comments posted online. In one filing, prosecutors noted how the publicity is being used to support multiple arguments in court.

"While the Defendants have attached to their Motion an appendix of various press excerpts … to demonstrate their claim that the public is poisoned against them," prosecutors wrote in the filing last month, "the State has likewise collected the attached appendix of examples of publicity showing just the opposite — factual reporting and even publicity attacking the State and expressing skepticism about the validity of the charges against the officers."

Williams must sort out those arguments when deciding whether the case should be moved out of Baltimore, whether evidence should be subject to a protective order and whether Mosby should be allowed to try the case.

"The biggest issue in this case is whether or not it's going to be moved to the Eastern Shore or Cumberland," said Joseph E. diGenova, former U.S. attorney for the District of Columbia, who has been following the case in part because of its massive public profile.

David Jaros, a University of Baltimore law professor, agreed publicity concerns figure most prominently in arguments over the possible venue change.

"This media question, which goes to the venue question, touches on some really deep issues both about criminal law and government accountability and the right of a community to take part in the justice process," Jaros said. "We're weighing the community's really fundamental and constitutional right to be jurors in cases in their community against due process concerns on the part of the defendants."

Defense attorneys noted in a court filing that the mug shots for the six officers "continue to frequent the local newspapers and TV news broadcasts," and that publicity surrounding the case and unrest in Baltimore "has not subsided and shows no signs of stopping."

Deputy State's Attorney Janice Bledsoe left open the possibility that the case could still be moved on the eve of trial if an impartial jury cannot be seated. Until then, she said, the defense — and the court — shouldn't "demeaningly prejudge" the ability of Baltimoreans to be impartial.

In opposing a change of venue, prosecutors said the press coverage of the case "has been, at worst, balanced, if not sympathetic to the Defendants."

Separately, prosecutors have argued that defense attorneys, through court filings and public comments, are trying to drive "the public narrative in favor of their position."

In requesting a broad protective order barring the release of court evidence, Mosby's office said that "examples of the amount of publicity and defense counsel's conduct abound," bemoaning a "media blitz" by the defense and a time when "the press roared" over each new revelation in the case.

Meanwhile, the defense argued Mosby has been the one to play to the public and press in ways unbecoming a professional prosecutor. They wrote in a court filing that she "preached like a prophet and reveled like a rock star" when she announced the charges against the officers on the steps of the War Memorial.

DiGenova said Mosby has not shown restraint. "Instead of hiding and going out of sight in order to tamp down public interest or concern about the case, she has actually increased public interest," he said.

Prosecutors have said Mosby was "trying to calm the crowd, not incite it."

"Her repeated pleas for peace while the criminal justice system does its work served a legitimate law enforcement function," Deputy State's Attorney Michael Schatzow wrote in a filing.

krector@baltsun.com

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