By Lena Williams, Guild-CWA ::Baltimore prosecutors obviously aren’t happy that attorneys for some of the six police officers accused in the death of a 25-year-old man last April are talking to the press.
Unlike the state prosecutor’s office, which has denied media requests for documents and evidence about the investigation, attorneys for the officers have been extremely vocal about the case. They have held numerous press conferences, provided journalists with copies of pre-trial motions before prosecutors had received them and demanded transparency and accountability from the state. From the moment the Maryland State Attorney Marilyn Mosby announced charges against the officers on May 1, defense lawyers have expressed grave concerns about the “fairness and integrity” of the prosecution.
The state apparently had heard enough.
On May 13th, the state filed a motion with Baltimore City Circuit Court to impose a gag order in the criminal case. The state didn’t make its intentions known to the press or the public. The Associated Press managed to obtain a copy of the gag order document days after it was filed. The document shows that the state isn’t just trying to stop defense attorneys from talking about the case outside the court, it also wants to muzzle the media, police, court personnel and potential witnesses.
Last Friday, AP and 18 other news organizations asked the judge to deny the prosecutors’ request for a gag order on the grounds that it was un-Constitutional, a violation of the First Amendment rights of a free press and the public’s right to know.
Among the other news outlets that joined the request are The Baltimore Sun, CBS Broadcasting Inc., ABC News, NBC News, CNN, Fox News, CNN, Bloomberg News, The New York Times, The Washington Post, Gannett and the Reporters Committee for Freedom of the Press.
“Transparency is most needed in cases asserting governmental wrongdoing,” Nathan Siegel wrote on behalf of the news organizations. “This is particularly true when allegations of governmental wrongdoing are levied on both sides, against police officers and prosecutors alike.”
According to the document, prosecutors cited concerns about statements made a news conference by defense attorneys for one of the officers as having a “prejudicial effect” on the case. Antonio Gioia, a deputy state’s attorney, specifically made mention in the motion to note that defense lawyers gave pre-trial motions to the press.
“The efforts by defense counsel will have the necessary effect of undermining both the state’s right to present the investigation to a fair and impartial grand jury in this matter and tainting the pool of potential jurors who ultimately decide this case in a court of law,” Gioia wrote in the motion.
The officers are charged with crimes ranging from second-degree misdemeanor to assault to “depraved heart murder” in connection with the death of Freddie Gray. Gray died on April 19, a week after he suffered a spinal injury during his arrest and transport by Baltimore police.
Shortly after Mosby announced the charges against the officers on May 1, Michael Davey, an attorney whose law firm is representing one of the officers, appeared at a news conference organized by the police union and accused Mosby of “an egregious rush to judgment.”
“We have grave concerns about the fairness and integrity of the prosecution of our officers,” Davey said.
The officers’ attorneys questioned Mosby’s impartiality and asked a judge to replace her or dismiss the case.
No one from the prosecutor’s office has spoken publicly since the charges were announced amid widespread protests, clashes with the police and looting in the West Baltimore neighborhood where the arrest took place.
Mosby did take the stage at a Prince concert in Baltimore on May 10 during a “Rally4Peace” in honor of Gray. Mosby didn’t say anything but she stood by smiling as Prince told the crowd: “The system is broken. It’s gonna take young people to fix it this time.”
Were his comments deemed prejudicial by the state? I doubt it.
Although the charges and subsequent indictment of the officers was cheered by members of the black community and immediately calmed the unrest taking place in the city, the state seems bent on undoing any good measure by its actions.
In a high-profile case such as this, a gag order could prevent Baltimore residents who will make up the jury pool from talking about the case and heighten tension in a community that doesn’t trust law enforcement officials including the prosecution, which is charged with representing the interests of the state.
Erwin Chemerinsky, a lawyer and law professor at the University of California Irvine Law School, examined the issue of gag orders in an article for the Loyola Law Journal. Chemerinsky noted that it would be wrong to assume that statements by lawyers and parties involved in a criminal trial cause or “exacerbate the harm.”
“The assumption is that by limiting one source of information a fairer trial would likely result,” wrote Chemerinsky. “Indeed, if such gag orders have an effect, it likely is counterproductive to the goal of fair judicial court proceedings.”
During her press conference announcing the charges against the police officers, Mosby made comments that in hindsight could be considered prejudicial, among them that the officers “illegally arrested” Gray, “held him down against his will” and that one of the officers, Sgt. Alicia White, made “no effort to look or assess or determine his condition.
At the time, Mosby said she was “committed to transparency.”
“To the people of Baltimore and the demonstrators across America: I heard our call for ‘no justice, no peace,’ said Mosby. “Your peace is sincerely needed as I work to deliver justice on behalf of this young man.”
Mark R. Weaver, a former spokesman for the Justice Department and professor of law at The Ohio State University College of Law, said the actions of Mosby’s office in seeking a gag order show a misunderstanding of ethics rules on pre-trial publicity.
In an op-ed piece that appeared in the Baltimore Sun on May 22, Weaver said: “These rules provide that when one side in a case (typically a prosecutor) has so completely exploited the charges in the press that the other side’s attorneys (here, those representing the officers) must be allowed to be even more aggressive with public statements than pre-trial publicity limitations would typically permit.”
Like it or not, the attorneys for the accused officers should have just as much right to make their case to the media as Mosby did on May 1. What is good for the goose, should also be good for the gander. ###