Judge denies defense subpoenas but gives them hope

In Freddie Gray case, judge denies subpoenas but says prosecutors ought to turn over the information demanded

Following Judge Barry Williams' ruling that the Freddie Gray trial would remain in Baltimore, an afternoon hearing revealed the prosecution's independent investigation was not all that, and that Williams may eventually allow subpoenas of training materials used by the state's attorney's office.

Williams denied defense motions to subpoena files pertaining to the state's attorney's office's investigation of Gray's death and materials used to train police officers, but said he'd likely grant more narrowly-focused subpoenas.

The defense is building its case partially on the theory that the state's attorney's office is prosecuting the six officers for political reasons. If it can show that there was no substantial independent investigation, that might be as good as showing—through internal notes or other evidence—that political considerations affected the investigation.

Beyond that, if assistant state's attorneys trained the defendants in constitutional policing, and it can be shown that the defendants followed their training in arresting Freddie Gray, it would weaken the cases against at least some of the police.

State's Attorney Marilyn Mosby has often touted her office's "independent investigation" of the police officers' actions that led to Gray's April death in the back of a police van. But her office has produced scant evidence of such an investigation, including only seven "investigative notes" and a couple of video-taped witness interviews in which neither the interviewer nor the interviewees were identified.

Assistant State's Attorney Janice Bledsoe told the judge that much of the independent investigation consisted of lawyers from the state's attorney's office instructing police to check particular businesses for video footage. This is why the evidence turned over in discovery has been so scant, she said: "How can we turn over a request—a conversation that you have with a police officer saying, 'Hey, did you check those MTA cameras?'" She said the fruits of those efforts are contained within the police investigative file that the defense already has.

Bledsoe's statement appears at odds with what Mosby said on May 1 in announcing charges against the police officers. "My team worked around the clock; 12 and 14 hour days to canvas and interview dozens of witnesses; view numerous hours of video footage; repeatedly reviewed and listened to hours of police video tape statements; surveyed the route, reviewed voluminous medical records; and we leveraged the information made available by the police department, the community and family of Mr. Gray," Mosby said then.

Catherine Flynn, one of the lawyers for officer Garrett Miller, also filed a subpoena for information pertaining to police academy and in-service training of her client. The police academy complied, she said, but did not turn over such expected documents as "a curriculum." She said she subpoenaed the state's attorney's office because lawyers from there train police on issues pertaining to the Fourth Amendment—that is, when can police stop a person, when do they have grounds for an arrest, and so forth. Such issues lay at the heart of the case, and have often been disputed in Baltimore, where community members complain that police harass them. A day before the hearing, Mosby's office tweeted out that it was using grant money to train police officers: "Training topics include stopping and searching vehicles, obtaining and executing warrants and testifying in court. #Baltimore #Crime"

Bledsoe said she was not sure what basis the defense had for requesting that information, "even if we had it." She said it's beyond the normal scope of a criminal discovery and that the subpoenas are a "back door" way the defense team is using to try to get information they aren't entitled to.

Flynn explained that the information about how her client was trained is likely to be relevant, and "just by coincidence," the trainers came from the prosecutor's office. She said that if her client was trained by a law professor, she would have subpoenaed him.

"If I could get this information from the police academy, that'd be great," she told the judge. "But they don't have any records." So she suspects there is a curriculum on an assistant state's attorney's computer with a file name like "Fourth Amendment Training." She noted that the issue of "reasonable, articulable suspicion" is likely to be germane to her client's defense, and said she'd welcome a review of the documents by the judge alone to see if they're relevant. 

Though Judge Williams denied both subpoenas, he said he thought the state should turn over training documents, and said it would be "appropriate for the state's attorney's office to start getting ready to answer a subpoena that is more narrowly tailored."

As the hearing ended Flynn said she planned to refile the subpoenas "as instructed by the court."

Click here for more from Edward Ericson Jr. or email Edward at eericson@citypaper.com

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