Defense attorneys for the first Baltimore police officer due in court in the Freddie Gray case have asked that jurors be fully sequestered during trial: put up in a hotel with no access to cellphones, limited access to television, and sheriff's deputies monitoring any interactions with family and friends.
Jurors should also be "told that their names will be screened from the outside world" so they don't feel pressure to convict Officer William G. Porter as a "sacrificial lamb" to avoid "further civil unrest" in the city, Porter's attorneys argued in a motion filed in Baltimore Circuit Court.
His attorneys, Gary Proctor and Joseph Murtha, said the "extra precautions" are necessary because of the decision by Judge Barry Williams not to move the trial out of Baltimore. The defense had previously argued that publicity surrounding the case and the unrest that followed Gray's death so tainted the city's juror pool that it would be impossible to seat an impartial jury.
Williams has said jurors can be screened for bias during the jury selection process known as voir dire. Porter's attorneys, however, argue that jurors who say they can be fair during the vetting process could be swayed later if they are "bombarded with opinions, TV news, Facebook posts and the like" during their time on the jury.
The attorneys ask that immediately upon jury selection, jurors be escorted home by sheriff's deputies to "pack a bag," then transported to the hotel to remain there — or at the court — until the trial is over.
Jurors should "have their phones taken from them, and all correspondence/calls/visits with friends and family [be] monitored by deputies," the motion says.
And it says televisions in the jurors' hotel rooms should be "controlled, so that the local news, national news, and the like are not made available."
The cost of sequestering jurors falls on taxpayers through the court system. The cost would be determined by the length of the trial, which is unclear.
Gray, 25, suffered a severe spinal cord injury while in police custody April 12. His death a week later sparked protests against police brutality, and his funeral on April 27 was followed by rioting, looting and arson. Baltimore State's Attorney Marilyn J. Mosby filed criminal charges — ranging from second-degree murder to misconduct in office — against six Baltimore police officers. All of the officers have pleaded not guilty.
All are scheduled to be tried separately. Porter is set to be tried first, beginning Nov. 30, on charges of manslaughter, second-degree assault, misconduct in office and reckless endangerment.
The new motion was filed Oct. 13 but was unavailable in the case file in Circuit Court as recently as Tuesday morning, according to a review of the file by The Baltimore Sun. It was posted Tuesday afternoon — a week after the filing — on a website the court has created for the high-profile case.
Amy Dillard, who teaches criminal law and criminal procedure at the University of Baltimore, said sequestering a jury is "very unusual," and often reserved for capital murder cases.
Sequestering jurors would protect them from evidence publicized outside the court but ruled inadmissible in Porter's case. It also would keep them from news coverage of the proceedings and the opinions of their peers and others, whether in person or on social media.
However, a sequestration ruling could also "exclude potential jurors who cannot survive sequestration [because] of kids, work, other obligations," Dillard said — thereby making it harder to seat a jury in the city.
If a jury can't be seated in the city, the case would have to be moved to another jurisdiction in Maryland, which the defense has sought all along. That outcome could be an "underlying" part of the strategy of Porter's attorneys, Dillard said.
A spokeswoman for Mosby's office declined to comment, citing a gag order Williams imposed on defense attorneys and prosecutors last week barring them from discussing the case with anyone outside their legal teams. Prosecutors will be able to respond in writing to the court before Williams rules on the motion.
David Jaros, another University of Baltimore law professor, said Williams must decide "whether or not he believes it is wise or necessary to sequester the jury to avoid the jurors being exposed to outside information."
In doing so, he must weigh the potential impact on Porter's right to a fair trial against "case law that says we recognize that just serving as jurors is already a huge public service and a burden, so we are hesitant to sequester and further burden the jury," Jaros said.
Williams could agree to all or some of the defense requests, Jaros said. He could also agree to none, instead relying on a far more common option: sending the jurors home nightly, but under orders to avoid media coverage of the case and talking about it with others.
If he does decide on sequestration, his decision will be complicated by the modern age we live in, Jaros said, where simply confining jurors to a hotel would do little to shut them off from the outside world.
"The challenge of shielding a jury from outside influence has changed dramatically over the last decade, as we have gotten the proliferation of smartphones and Twitter" and other social media, Jaros said.
Porter's attorneys also make that argument, saying Williams must consider the best approach in the Gray case without relying on outdated case law in the state, which "appears to be from the Land Before Time.com, Facebook, Twitter, and wall-to-wall media saturation."
If Williams decides not to sequester the jury, Porter's attorneys ask that he still institute precautions to protect the jurors — including having them "congregate at a third party location" before trial dates and be driven to the downtown courthouse by security, in part to buffer them against media pressure the attorneys believe they will experience outside the courthouse as the trial nears its conclusion.
"It does not take a vivid imagination to picture what the scene will be like once a verdict is expected," the attorneys wrote. "A juror should not have to walk this gauntlet. It will affect his or her thinking, perception of the case, and ultimately the verdict."
Jaros said the motion is an appropriate one for Porter's attorneys to file. Sometimes sequestration is "the cost of providing a fair trial and full due process" under the law, he said, no matter the inconvenience or cost to taxpayers.