An affidavit from a top Baltimore sheriff's office commander is raising new questions about State's Attorney Marilyn Mosby's investigation into the death of Freddie Gray.
While Mosby has said her office conducted an independent investigation that included using city sheriff's deputies, the commander assigned to the case said in the affidavit he had "no involvement in the investigation whatsoever."
Maj. Samuel Cogen also said he was given evidence after the fact and informed of prosecutors' determination.
"I was ... presented with a narrative that formed the basis of the application for the statement of charges that I completed," said Cogen, who swore out the warrants. "The facts, information and legal conclusions contained within ... as well as the charges lodged against plaintiff came entirely from members of the State's Attorney's Office."
Cogen and Mosby are being sued by five of the six officers charged in Gray's arrest and death. Cogen's affidavit was filed in an effort to dismiss the lawsuit filed by Lt. Brian Rice, who alleges false arrest and defamation as a result of the charges filed against him.
Prosecutors cannot comment on the case due to a gag order, and Rice's attorney in the lawsuit declined to comment Wednesday, also citing the gag order. Rice is free on $350,000 bail and scheduled to be tried July 5 on charges that include manslaughter and second-degree assault.
The affidavit sheds new light on the state's attorney's investigation into Gray's death, which was independent of police and led to rare charges against police at a time of heightened scrutiny across the country of law enforcement.
Mosby has said that the sheriff's office aided prosecutors, though Cogen's affidavit suggests the agency had little to no role beyond filling out the warrants. Cogen, however, maintains that the charges were supported by "sufficient" probable cause and that it was reasonable to defer to prosecutors' determinations.
Defense attorneys for the officers charged have sought repeatedly to put prosecutors on the stand, saying their active role in the investigation makes them subject to questioning, but so far those efforts have been rebuffed by Circuit Judge Barry Williams.
Police and prosecutors worked on parallel tracks in the days after Gray's death from injuries suffered in the back of a police transport van, and the agencies clashed over evidence — a rift that spilled out in court last week at the trial of Officer Caesar Goodson Jr. Judge Williams' ruling in the case is expected Thursday.
During defense witness testimony, Chief Deputy State's Attorney Michael Schatzow accused Detective Dawnyell Taylor, the lead detective on the police investigation, of trying to sabotage their case. Taylor questioned the integrity of prosecutor Janice Bledsoe.
Cogen on June 7 asked that the lawsuit counts against him be dismissed, and filed the affidavit explaining that he had a minimal role.
Cogen said the state's attorney's office asked for assistance in the case on April 23, four days after Gray died and a week before charges were announced. "On or about the same day," he says, he was presented with items to review from prosecutors Bledsoe and Schatzow.
"My involvement was limited to a review of the fruits of the investigations done by the Police Department and State's Attorney's Office," Cogen said.
Cogen said he was shown a chart identifying "the charges to be brought, the evidence supporting those charges, and the related legal analysis," which was explained to him by Schatzow and Bledsoe. He was also given a narrative that formed the basis of the information entered on the warrant.
Cogen said he made "few changes," and Schatzow accompanied him to a District Court commissioner's office and made a "last minute change to the application involving the medical examiner's description of the injury sustained by Freddie Gray." The medical examiner's office did not make a final ruling on Gray's cause and manner of death until April 30.
Cogen said he did not participate in arresting the officers. He said he was asked to attend Mosby's news conference at the War Memorial building announcing the charges, but "I declined," he wrote.
Cogen, who is being represented in the lawsuit by attorneys from the city solicitor's office, said that he is entitled to immunity and that the Supreme Court prohibits second-guessing of probable-cause statements with the benefit of hindsight.
The charging document includes the standard language that the person filling it out "solemnly affirm[s] under the penalties of perjury that the contents of this application are true to the best of my knowledge, information and belief."
Cogen says Deputy State's Attorney Antonio Gioia told him that the knife recovered from Gray was legal — a contention from which prosecutors have since backed off. Of the legality of the knife, Cogen's attorneys wrote: "The knife was lawful under Maryland state law and he, as a non-lawyer and a sheriff who does not engage in routine enforcement of City ordinance violations, relied on the considered judgment and determination of a deputy prosecutor as to the knife's legality."
"This is the very situation for which such a strong preference for qualified immunity for law enforcement officers was created," assistant solicitors Jason R. Foltin and Sara E. Gross wrote.
"It was eminently justifiable for Major Cogen to conclude that the information he obtained from the Office of the State's Attorney as a result of its independent investigation was accurate and complete, and that the legal conclusions of prosecutors were proper," they said.