Officers in Freddie Gray case file for change of venue

Attorneys for the six officers in the Freddie Gray case have filed to move the trial out of Baltimore.

Defense attorneys for six police officers facing criminal charges in the Freddie Gray case are seeking to have the case tried elsewhere in Maryland, saying their clients can't get a "fair and impartial trial" in Baltimore.

In an 85-page document filed Wednesday with the court seeking a change of venue, the lawyers argued that a "presumption of prejudice" exists in the city.

Gray, 25, was arrested April 12 after running from officers patrolling West Baltimore and suffered a severed spinal cord and other injuries in police custody. His death a week later led to widespread protests and rioting that prompted a curfew and a National Guard deployment.

The case has drawn international attention and intense media coverage, and defense attorneys contend that not enough time has passed to permit "the type of healing and reconciliation in the community that would be needed to dampen the effects of the events surrounding the case."

The attorneys also sought to contrast the Gray case with other high-profile trials that weren't moved, including the case against the Boston marathon bomber. They argued that Baltimore City draws from a much smaller jury pool than those larger cities.

"Based on the relative size and characteristics of Baltimore City, the prejudicial information that has penetrated every form of online, printed and broadcast media, and the short time between the alleged crimes and the trial(s), the presumption of prejudice prevents the Officers in this case from receiving fair trials," the attorneys wrote.

The state's attorney's office did not respond to a request for comment on the filing.

Caesar Goodson, the driver of the van used to transport Gray, is charged with second-degree depraved heart murder, the most serious charge among the six officers. He also faces manslaughter, second-degree assault, two counts of vehicular manslaughter and misconduct in office.

William Porter, Brian Rice and Alicia White face manslaughter, second-degree assault and misconduct in office charges. Edward Nero and Garrett Miller are charged with second-degree assault and misconduct in office. All of the officers have been charged with reckless endangerment.

Though it is unclear exactly how Gray suffered fatal injuries, the medical examiner has ruled Gray's death a homicide. Mosby has accused the officers of failing to get Gray medical attention as he was being transported and of failing to perform their duty regarding the safety of a prisoner.

Defense attorneys and the police union have criticized the prosecution as rushed and flawed. Union officials have said none of the officers is responsible for Gray's death.

In their venue motion in Baltimore Circuit Court, the attorneys refer to a 2011 excessive force civil case against six Baltimore police officers. In that case, the officers arrested a 7-year-old for illegally riding a dirt bike and later handcuffed him to a bench at police headquarters. The child's mother, Lakisa Dinkins, sued for more than $700,000 in compensatory damages.

Attorneys in the Gray case called that case "similar to, but much more temperate" than the one against their clients. The Dinkins case was moved to Howard County after the Court of Special Appeals upheld a Baltimore City Circuit Court judge's decision to grant a change of venue.

A Howard County jury rejected the family's civil suit, even after a judge ruled that the arrest of the boy was illegal.

As for the Boston bombing trial against Dzhokhar Tsarnaev, which remained in Massachusetts federal court, the attorneys in the Gray case noted that the jury pool there included surrounding counties. And unlike in Baltimore, where the curfew affected all citizens, not all potential jurors in Boston were affected, they argued.

In their motion, attorneys in the Gray case warned of a movement in the city to register young men to vote "so they can get on the jury to convict the officers."

"It will be impossible to ferret out the bias and resentment of those prospective jury members who choose to hide their deeply held prejudices to get onto the jury," they said.

The defense attorneys cited U.S. Supreme Court analysis that considers the size of the community, whether "blatantly prejudicial information" was publicized, and the time that elapsed between the alleged crime and the trial.

That analysis was applied in the case of Enron Corp. CEO Jeffrey Skilling, who was charged with manipulating the company's financial reports to deceive investors. Skilling's trial was not moved.

But attorneys said an examination of those issues in the Gray case should lead to a different conclusion.

They estimated the number of eligible jurors in Baltimore City at about 276,000 and noted that only 27 percent of those called reported for duty in 2012 — a potential pool "entirely consistent with the size and characteristics the Supreme Court has found and applied the presumption of prejudice."

The attorneys also argued that statements by public officials about rooting out police brutality "blurred the line" between an issue affecting the entire Police Department and the six defendants.

"The negative and hostile implications toward the department have become inseparably enmeshed with those against the Defendants," they said.

Byron L. Warnken, a law professor at the University of Baltimore, said the key issue for the judge will be to determine whether potential jurors have formed an opinion about the guilt of the officers — not whether they have heard about the case.

Thecelebratorymood at protests and marches after State's Attorney Marilyn Mosby announced that she was filing charges could weigh heavily on a judge's mind, he said.

"They're going to argue that not just one or two or three or four but the whole general community is poisoned," Warnken said."It's not the publicity, it's the hostility."

Still, Warnken said judges rarely grant requests for a change of venue and that it's possible to weed out potential jurors who have made up their minds.

The defense lawyers also filed a number of other motions Wednesday, including one challenging a gag order in the case and one demanding that Mosby recuse herself because of conflicts of interest — a filing that largely restated an argument made when the case was in front of a lower court.

Baltimore Sun reporter Justin Fenton contributed to this article.

cmcampbell@baltsun.com

twitter.com/cmcampbell6

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