Officers in Freddie Gray case move to dismiss charges

The officers in the Freddie Gray case want charges dismissed, Mosby recused

Attorneys for the six police officers charged in the death of Freddie Gray filed a motion Friday to dismiss the case and asked State's Attorney Marilyn Mosby to recuse herself, claiming "overzealous prosecution" and an array of conflicts of interest.

They argue that Mosby and her husband, a city councilman who represents the epicenter of protests and rioting following Gray's death, "seized political and personal gain" with charges intended to appease constituents and quell unrest. They also contend that the charging paperwork for the officers contains errors.

"Rarely in the history of any criminal case has a prosecutor so directly maintained so many conflicts of interest ... and a prosecutor steadfastly refuses to recuse him or herself," the attorneys wrote in the 23-page filing in Baltimore District Court.

The attorneys call the charges against the officers "extraordinary prosecutorial overreaching" at best. At worst, the charges "are something far more nefarious."

Through a spokeswoman, Mosby declined to comment but has dismissed such criticism in the past.

Mosby announced criminal charges against the officers May 1, one day after police concluded their investigation and following a week of protests. Mosby's office conducted an independent probe, working with its own investigators and the Baltimore sheriff's office.

The swiftness — and the seriousness — of the charges, including second-degree murder and manslaughter, surprised many. Speaking from the steps of the War Memorial, Mosby said the officers "illegally arrested" Gray on April 12 and failed to render him aid.

Gray died a week later of injuries sustained while in police custody.

The attorneys who filed the motion to dismiss are Matthew B. Fraling III, who represents Officer Caesar Goodson; Catherine Flynn, who represents Officer Garrett Miller; Marc L. Zayon, who represents Officer Edward Nero; Joseph Murtha, who represents Officer William Porter; Michael Belsky, who represents Lt. Brian Rice; and Ivan Bates, who represents Sgt. Alicia White.

While the case made Mosby an instant star among those protesting police brutality here and across the country, the officers' attorneys want her to step aside and a judge to appoint an independent prosecutor, if not dismiss the case entirely.

In their filing, the attorneys say Mosby made "reckless, careless and inaccurate public statements." They also contend prosecutors were wrong to say in charging documents that Gray was carrying a knife that didn't violate state law.

The Baltimore Sun has reported that a Baltimore police task force, commissioned to investigate Gray's death, analyzed the knife and determined that it was "spring-assisted" and in violation of the city's broader law.

"If the knife was actually illegal, it stands to reason that the very people who charged these officers would then be guilty of false imprisonment of each of the officers-defendants, by virtue of the logic employed in the state's charging decisions," the attorneys wrote in court papers.

Many activists, protesters and city leaders say the distinction is irrelevant because the officers didn't know or suspect that Gray had the knife on him and should not have pursued him.

But the attorneys for the officers say the distinction is legally important and raises questions about the case. The attorneys disclosed that they have filed a notice of their intention to sue Mosby and others involved in the case, saying mistakes in charging documents resulted in the officers' "unlawful arrest."

In a statement earlier this week, Mosby said that "the evidence we have obtained through our independent investigation does substantiate the elements of the charges filed" but declined to elaborate, citing the pending case.

The Fraternal Order of Police, in denouncing the charges on the day they were announced, raised Mosby's alleged conflicts of interest.

At the time, Mosby noted that while she has ties to those involved in the case, she also received money during her campaign from the FOP.

"Is this a conflict of interest? Absolutely not," she said last week.

Mosby's husband, Councilman Nick Mosby, represents the city's 7th District, which includes Gilmor Homes, where Gray was arrested, as well as the Pennsylvania Avenue corridor that became "ground zero" for protests and rioting.

The attorneys say Nick Mosby "had a professional and personal interest in the need to eliminate the rioting and destruction of the property in his council district." Likewise, they say, Marilyn Mosby had an interest "in accommodating the needs of her husband — his political future directly affects her personal, professional and political interests."

"It is inconceivable that Mrs. Mosby was not influenced by the challenges presented to her husband as a community leader of neighborhoods that were literally 'up in flames,'" the attorneys wrote.

Nick Mosby did not respond to a request for comment. He previously said he has "no involvement" in his wife's office.

Last week, Marilyn Mosby noted that she lives in the district.

"I have to prosecute every crime that takes place in the city, in any district," she said. "My husband is a lawmaker, and I enforce the laws."

The attorneys for the officers also criticized Mosby for remarking during a news conference that she heard the calls of protesters, from Baltimore and across the country, for "no justice, no peace."

"These officers soon found themselves offered up to the masses by Mrs. Mosby to quell the uprising that caused the most harm to the District where her husband is City Council representative."

The attorneys also cite Deputy State's Attorney Janice Bledsoe's relationship with WBAL-TV reporter Jayne Miller and say they may call the journalist as a witness.

The filing includes a copy of a search warrant filed by police to obtain items from the home of Officer Caesar Goodson, who drove the arrest van. The officer who filled out the affidavit, Detective Carl Stambaugh, wrote that a second arrestee riding in the van, Donta Allen, "could hear Gray banging against the walls of the wagon compartment."

"It was Allen's belief that Gray was intentionally trying to injure himself," Stambaugh wrote in the affidavit.

Miller interviewed Allen, who said he never made such statements. The attorneys say Miller is now a "substantive witness or an impeachment relative to the veracity and detail of Mr. Allen's story." The attorneys said they have subpoenaed her notes.

"There is simply no way around this conflict," the attorneys wrote.

Miller said in a radio interview Tuesday that she is going to "step back" from covering the Gray story now that it is headed to court. Miller on Friday referred questions to WBAL-TV's general manager, who could not be reached for comment.

The attorneys also renewed concerns that Mosby has a personal and financial connection to the Gray family's attorney, William H. Murphy Jr. He supported Mosby's campaign and, according to an email purportedly from Murphy and included in the filing, represented her in a matter before the Attorney Grievance Commission last year.

The circumstances of that complaint are unclear, but a document included in the court filing indicates that Mosby was cleared of wrongdoing. The document, marked "private and confidential," was sent to the person who made the complaint. The person's name is redacted.

Mosby told The Sun last week that Murphy never represented her.

Murphy did not return calls seeking comment but has previously dismissed the claim that his support of Mosby created a conflict.

Baltimore Sun reporter Luke Broadwater contributed to this article.

jfenton@baltsun.com

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