Fault Lines
21 June 2017

The media fight in the Freddie Gray case is not what you think

June 19, 2015 (Mimesis Law) — All the recent high-profile police brutality cases have in common overzealous prosecutors and a media swarm following their every move, feeding a news cycle that rarely knows what to make of all the lawyerly talk and procedure. To date, grand juries are still a mystery to most, the ongoing fight over the Eric Garner presentment records is pyrrhic at best.

Baltimore State’s Attorney Marilyn Mosby kicked off a media frenzy of her own with her public announcement that she would be pressing charges in the Freddie Gray case in May. Her colleagues in Staten Island and Ferguson also held big pressers, but hers stood out and launched her into the spotlight because it came swiftly. In less than a month since Gray’s death, six officers stood charged for a number of offenses, including second-degree murder and manslaughter.

The tradeoff was that defense attorneys for the accused immediately launched a media offensive of their own, to the point that Mosby moved for a gag order, which didn’t succeed. There was also a motion for Mosby’s recusal. And in a new counter motion filed Monday, Mosby sought to quash their ongoing “media blitz” by requesting that all the discovery in the case, due to be turned over on June 26th, be made secret so as to avoid negative pretrial publicity for the prosecution. “The state seeks only to have justice carried out in the courtroom, not the newsroom,” Mosby wrote in the motion for a protective order, as reported by The Wall Street Journal.

But Mosby’s motion doesn’t stop there. Addressing a claim by defense attorney Ivan Bates, who had said in an interview that Mosby was “trying to hide” something from Gray’s autopsy report, Mosby’s office took an all-or-nothing approach: Provided the defense consented, she said she “would have no objection to posting the entire autopsy report on the Internet, along with all of the discovery in the case.” The rationale behind that would be that Bates and the rest of the defense team wouldn’t have an opportunity to cherry-pick which evidence to release or comment on publicly, thus reducing the likelihood of prejudicing Mosby’s case. Or worse, the jury pool.

If your head is spinning, you’re not alone. And for the most part, all of this is just lawyers being lawyers caught in the midst of a media maelstrom in an important police brutality case. It feels very new because these cases are rare, at least in the post-Ferguson era.

On the one hand is Mosby, who probably, to this day, has never encountered such zealous legal and media counterattacks against one of her cases. Usually this occurs in the reverse: the prosecutor has all the power in the world to try the case in the media first — Preet Bharara once got in trouble for this — while the defense just watches in dismay because it lacks the resources or the wherewithal to mount a press conference. And since Mosby’s duty is to seek justice and not to win at all costs, she simply has to keep plugging along and quietly preparing her case for trial, independent of how prejudicial Bates or other lawyers may be in their comments to the media. And in any event, she’s something of a folk hero in Baltimore: potential jurors are likely on her side.

On the other hand is Bates, who called Mosby’s motion for a protective order “disingenuous” and continues to make impassioned statements to the media. Though what he’s doing is fair game and part of zealous advocacy for his client — provided he doesn’t run afoul of his ethical duties — it’s unclear what his ultimate strategy is, or whether it’ll ultimately succeed in convincing the jury pool that Mosby’s case is weak, or that the prosecution is politically motivated.

One thing is true: What he’s doing could certainly backfire, not just on his client, but all six cops accused in the case. Then again, it’s possible that Bates is the designated attack dog for all six cops. Even if it backfires against him, it won’t taint the other officers who might get the benefit of his vigorous media attention.

So it’s a toss-up. And in the absence of a clear indication of where all of this is headed procedurally — the trial is still months out — we’ll just have to watch from the sidelines and hope this goes to trial as smoothly as possible. What the public wants is accountability and a clear picture of what happened to Freddie Gray, not a media circus by lawyers.

Main image via Flickr/Jared eberhardt

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