Judge may drop some parts of Mosby law­suit

State’s at­tor­ney ac­cused of fil­ing false charges against of­fi­cers in Fred­die Gray case

Baltimore Sun - - FRONT PAGE - By Justin Fen­ton

A fed­eral judge said Thurs­day that he would pare down a law­suit filed against Bal­ti­more State’s At­tor­ney Mar­i­lyn J. Mosby by of­fi­cers charged in the death of Fred­die Gray, but he asked ques­tions about how her dual role as in­ves­ti­ga­tor and pros­e­cu­tor in the case could ex­pose her to li­a­bil­ity.

The hear­ing was the first time in court for the two sides since pros­e­cu­tors dropped the re­main­ing charges against the of­fi­cers in­dicted in Gray’s death.

With pros­e­cu­tors un­able to con­vince ju­rors and a judge in four tri­als that those of­fi­cers were crim­i­nally re­spon­si­ble for Gray’s death, five of the six of­fi­cers charged are su­ing Mosby in civil court for what they say was a ma­li­cious pros­e­cu­tion.

Thurs­day’s hear­ing in front of U.S. Dis­trict Judge Marvin Gar­bis was prompted by a mo­tion to dis­miss the case filed by at­tor­neys for Mosby and Deputy Chief Sa­muel Co­gen of the Bal­ti­more sher­iff’s of­fice, who is also a de­fen­dant.

Gar­bis did not rule Thurs­day and did not give a timetable for a de­ci­sion. But he in­di­cated he would drop sev­eral of the Mosby

charges, in­clud­ing false ar­rest.

As­sis­tant At­tor­ney Gen­eral Karl Poth­ier, one of Mosby’s at­tor­neys, ar­gued that Mosby as a pros­e­cu­tor is en­ti­tled to “ab­so­lute im­mu­nity” when de­cid­ing to charge a crim­i­nal sus­pect.

How­ever, Gar­bis said there was a dis­tinc­tion be­tween pros­e­cu­tors re­ceiv­ing an in­ves­ti­ga­tion from po­lice and of­fer­ing le­gal guid­ance, and pros­e­cu­tors us­ing their own in­ves­ti­ga­tion.

“This is the prob­lem when some­one tries to wear two hats and pub­licly states … that it was her in­ves­ti­ga­tion,” Gar­bis said.

The law­suit high­lights the com­pli­ca­tions pros­e­cu­tors faced in in­ves­ti­gat­ing Gray’s death. Mosby has said she did not trust the Bal­ti­more Po­lice Depart­ment’s in­ves­ti­ga­tion of the case, and was forced to con­duct an in­de­pen­dent re­view.

But dur­ing the crim­i­nal tri­als, that move forced pros­e­cu­tors to turn over ma­te­ri­als not nor­mally re­quired to be pro­vided to the de­fense, open­ing up new lines of at­tack.

Now, in civil court, the of­fi­cers’ at­tor­neys are ar­gu­ing she can be sued be­cause of that ex­panded role. Mosby’s at­tor­neys dis­agree.

If Gar­bis al­lows the law­suit to con­tinue, Mosby and oth­ers could be sub­jected to de­tailed de­po­si­tions.

Gray, 25, suf­fered a se­vere neck in­jury in a po­lice van af­ter be­ing ar­rested when he ran from po­lice in Gil­mor Homes on April 12, 2015, and died a week later. Af­ter Gray’s death was ruled a homi­cide by the med­i­cal ex­am­iner’s of­fice, Mosby an­nounced that her of­fice had con­ducted an in­ves­ti­ga­tion in­de­pen­dent of po­lice that de­ter­mined six of­fi­cers com­mit­ted crimes.

Pros­e­cu­tors al­leged that Gray was wrongly ar­rested, and that the of­fi­cers en­trusted with his care then failed to se­cure him in­side the pris­oner trans­port van with a seat belt, ex­pos­ing him to dan­ger. They ac­cused van driver Of­fi­cer Cae­sar Good­son Jr. of giv­ing him a de­lib­er­ate “rough ride” that caused him to be in­jured. Of­fi­cers who saw Gray in the back of the van failed to get him med­i­cal help, they said.

Ju­rors dead­locked in the first trial, of Of­fi­cer Wil­liam Porter. The next three of­fi­cers, Ed­ward Nero, Good­son and Lt. Brian Rice, elected bench tri­als and were cleared by Cir­cuit Judge Barry Wil­liams. Pros­e­cu­tors then dropped charges against Of­fi­cer Gar­rett Miller, Sgt. Alicia White, and Porter.

All of the of­fi­cers ex­cept Good­son are su­ing Mosby and Co­gen for know­ingly fil­ing false charges and de­fam­ing them. Nero and Miller ap­peared in court Thurs­day to ob­serve the pro­ceed­ings; Mosby, Co­gen and the other of­fi­cers did not.

An­drew Toland, one of the at­tor­neys rep­re­sent­ing Nero and Miller, said the state’s at­tor­ney’s of­fice’s in­ves­ti­ga­tion was “garbage in, garbage out,” with pros­e­cu­tors selec­tively putting for­ward cer­tain in­for­ma­tion about the case to ad­vance the charges but with­hold­ing other in­for­ma­tion that would paint the full pic­ture.

At­tor­neys for Mosby and Co­gen said that at the time the of­fi­cers were charged, au­thor­i­ties only had to reach a min­i­mum stan­dard of prob­a­ble cause and not put for­ward ev­ery de­tail.

Gar­bis at one point fo­cused on the ar­gu­ment over a knife Gray was car­ry­ing when he was ar­rested. Nero and Miller charged Gray with hav­ing a switch­blade, il­le­gal un­der the city code. But pros­e­cu­tors said the knife was le­gal un­der state law and said his ar­rest was un­law­ful.

Gar­bis asked at­tor­neys for Mosby and Co­gen, who filled out the state­ment of prob­a­ble cause on the charg­ing doc­u­ments for the of­fi­cers, which one would be re­spon­si­ble for any in­cor­rect as­ser­tions on the charg­ing doc­u­ment.

Co­gen’s at­tor­neys said he merely re­viewed doc­u­ments pre­sented to him by Mosby’s of­fice and did not have first­hand knowl­edge of the ev­i­dence.

“State’s At­tor­ney Mosby and her of­fice are re­spon­si­ble for any le­gal con­clu­sions er­ro­neously made,” said As­sis­tant City So­lic­i­tor Sara Gross. “If a po­lice of­fi­cer can’t rely on the state’s at­tor­ney for ac­cu­rate in­for­ma­tion, who can they rely on?”

Poth­ier, rep­re­sent­ing Mosby, said it was Co­gen’s re­spon­si­bil­ity.

“He’s the one who ex­e­cutes the doc­u­ment, he’s the one who swore un­der oath,” Poth­ier said.

Gar­bis also asked the of­fi­cers’ at­tor­neys to ex­plain how Mosby had de­famed them when she read from the charg­ing doc­u­ment and an­nounced the charges at a news con­fer­ence. They be­gan to re­hash de­fense ar­gu­ments from the trial, in­clud­ing as­sert­ing that Gray was in­jured at a much later point dur­ing the van ride than pros­e­cu­tors have said.

“These are fac­tual dis­putes that couldn’t be re­solved short of trial,” said Gross, Co­gen’s at­tor­ney, in re­sponse. “No­body knows when Fred­die Gray was in­jured. … The is­sue has never been re­solved.”

Poth­ier said omis­sions of ev­i­dence at the charg­ing stage, and dis­putes over time­lines, had been “dealt with dur­ing the course of the crim­i­nal pro­ceed­ings” and said the of­fi­cers were try­ing to “lit­i­gate what was re­solved in crim­i­nal court.”

Tony Gar­cia, an at­tor­ney for White, said his client never got her day in court be­cause the charges were dropped and main­tained Mosby had made false state­ments about White’s role in the Gray case to make her look “cal­lous.”

Poth­ier said Mosby com­ments at the news con­fer­ence about “keep­ing the peace” amid the un­rest af­ter Gray’s death were in line with her role as the city’s chief pros­e­cu­tor and said she had merely been putting the charges in con­text. He noted U.S. At­tor­ney Rod Rosen­stein held a news con­fer­ence last week to an­nounce an in­dict­ment of cor­rec­tions of­fi­cers charged with cor­rup­tion.

“Mak­ing com­ments was en­tirely ap­pro­pri­ate un­der the cir­cum­stances,” Poth­ier said of Mosby’s re­marks.

Newspapers in English

Newspapers from USA

© PressReader. All rights reserved.