After reading hundreds of pages filed by both sides and hearing oral arguments by the attorneys on whether to remove the trial of the 6 officers charged in the death of Freddie Gray, Judge Barry Williams on September 10, 2015 declined to remove the trial to another location. The police officers argued that pretrial publicity made it virtually impossible for the officers to receive a fair trial in Baltimore.
Most of the defense arguments by attorney Ivan Bates, who argued for all 6 officers, rested on speculation on what potential jurors feel about the case from media. Judge Williams addressed all of the issues involved including the comments made by the prosecutor in bringing charges, comments by the Mayor and former Police Commissioner Anthony Batts, the riots, curfew, settlement of the civil case and leaks in the media about the case.
A fair trial is paramount to our criminal justice system. It is also important as Judge Williams referenced that these defendants have a right to also be tried in the jurisdiction where the alleged offense occurred. In terms of publicity, Judge Williams noted that there is no county that has not heard about the Freddie Gray case via news through print media, on air or on the Internet. Media coverage has been worldwide. Coincidentally one of the officers, William Porter, recently gave an interview to the Washington Post.
Two cases cited by the prosecution show that the trend of moving cases out of jurisdictions due to pretrial publicity and effect on residents is changing in the 21st century. The Boston Bomber case of Dzhokhar Tsarnaev and the Sniper case were tried in the jurisdiction where the offense occurred. In the case of John Allen Muhammad, known as the Sniper case held in Montgomery County, Maryland, most Montgomery County residents were concerned about being the target of a sniper attack while outdoors for the 22 days of the Sniper’s random killing spree. And the city of Boston and surrounding areas were on lockdown before locating the Boston Bomber.
In determining the issues of a fair trial, the key element is not whether potential jurors know about the case from the media. The crucial element is whether 12 fair and impartial jurors can hear and decide the cases based solely on the evidence heard in the court room. The defense vigorously argued the settlement of the civil case for Mr. Gray’s family would ensure the potential jurors assessed fault to the officers. The fact that a civil settlement occurred had no bearing on the Charlotte, NC case involving Jonathan Ferrell who was shot 10 times by an officer, while asking for help. The jury was unable to reach a verdict despite knowledge of the settlement. The jurors leaned towards acquittal. The defense made 4 prior requests for removal to another county before the trial started. The same might occur in Baltimore.
Baltimore has over 600,000 residents. It will take 12 fair and impartial jurors for each of the 6 trials. Judge Williams repeatedly stated that the citizens of Baltimore are not “monolithic”. They can think for themselves. Most of the issues addressed on removal can be discussed with each individual potential juror by Judge Williams during jury selection to make sure a fair and impartial jury is seated.
In essence, the defense had the burden to prove that it would be impossible to find 12 fair jurors out of 600,000 Baltimore residents. That is an insurmountable task. As prosecutor Michael Schatzow, the chief deputy of the Baltimore State’s Attorney’s Office argued, the thought that 12 fair minded people cannot be found in Baltimore to hear the case is insulting to the citizens of the City of Baltimore. All citizens of Baltimore do not all think alike.
At the end of the day, there is a presumption of fairness unless the defense can prove to the contrary. Judge Williams ruled on the basis of Maryland law and the state Constitution that there is no need to pick up and go somewhere else to try the case.
The trial starts October 13. The date may be changed.
Washington, DC based Debbie Hines is a trial lawyer and former Baltimore prosecutor.