STATE OF MARYLAND IN THE V. DISTRICT COURT CAESAR GOODSON OF MARYLAND CASE NO. 6B02294452 FOR GARRETT MILLER BALTIMORE CITY CASE NO. 3B02294449 EDWARD NERO CASE NO. 4B02294450 WILLIAM PORTER CASE NO. 0B02294453 i BRIAN RICE CASE NO. 2802294448 A ALICIA WHITE CASE NO. 5B02294451 Defendants a: a: a: i: a: a: OFFICE OF THE STATES ATTORNEY FOR BALTIMORE OPPOSITION TO JOINT MOTION TO DISMISS AND IN THE ALTERNATIVE FOR RECUSAL OF BALTIMORE CITY OFFICE Defendants? Joint Motion to Dismiss and in the Alternative for Recusal of Baltimore City State?s Attorney?s Of?ce is premature, frivolous, illogical, and unsupported by authority when it is not contradicted by authority. Whether born of desperation, the desire for publicity, or a gross effort to taint the grand jury and potential petit jury pool, the motion is absurd. Spewing invective, and casting aspersions on the duly elected State?s Attorney for Baltimore City and her entire of?ce, the motion bounces from one ridiculous allegation to another, like a pinball on a machine far past SUMMARY OF ARGUMENT First, the motion is premature. As Defendants have recognized, this case will proceed in the Circuit Court for Baltimore City, not in the District Court where this motion was ?led. Second, the ?con?icts? identi?ed by the Defendants are not con?icts at all, which likely accounts for their inability to supply any authority deeming them con?icts. Third, the Defendants? claim that the best evidence of the existence of the con?icts is the charging documents themselves reveals both a fundamental (and no doubt deliberate) misunderstanding of when the Defendants are allowed to challenge the suf?ciency of the evidence against them, and a willful blindness to the more than suf?cient nature of that evidence. THE MOTION IS PREMATURE As the Defendants acknowledged in footnote 1 of their Motion for Order Requiring Recordation of Grand Jury Testimony or Stenographer to Take and Transcribe Testimony Before the Grand Jury, they know full well that they will be charged in the Circuit Court. Thus, this Motion is premature, as the District Court lacks the authority to circumscribe the processes of the Circuit Court. While this begs the question of why the Defendants sought Circuit Court relief from the District Court, the answer is all too obvious: harsh rhetoric designed to generate negative pre-trial publicity about the prosecutors in order to taint the grand jury and petit jury pool. CONTROLLING AUTHORITY, IGNORED BY DEFENDANTS, AUTHORIZES THE STATES TO INVESTIGATE CRIMES AND GIVE TESTIMONY WITHOUT CREATING A CONFLICT In a broad, novel theory ignoring contrary controlling authority, Defendants claim that their asserted need to question investigators on the payroll of the State?s Attorney?s Of?ce mandates recusal of the Of?ce. No authority is cited for this proposition, nor could there be any. Lawyers in private practice use clerks and investigators on the payroll of the law ?rm to witness statements and provide testimony if the witness needs to be impeached with the prior statement. The Maryland Attorney General?s Of?ce employs investigators who testify in cases brought by the Attorney General. The Maryland United States Attorney?s Of?ce employs investigators who testify in cases brought by the US. Attorney. The US. Department of Justice includes the Federal Bureau of Investigation, the US. Marshall?s Of?ce, and other law enforcement agencies that employ investigators who testify in cases brought by the Department of Justice. Why should they be allowed to do so while the State?s Attorney?s Office is not? Defendants fail to cite controlling authority that directly contradicts their contention. In Carr v. State, 50 Md. App. 209 (1981), the defendant contended that the State?s Attorney?s Of?ce should have been disquali?ed from prosecuting him because his conviction was based on the testimony of an Assistant State?s Attorney from that of?ce who acted as an undercover operative. The argument was based on the then existing equivalent to the Rule of Professional Conduct that the defendants in the instant case rely on. Roundly rejecting that contention, the Court of Special Appeals speci?cally approved of the State?s Attorney utilizing, for trial testimony, investigators employed by his of?ce, whether lawyers or laymen. Noting the ??broad of?cial discretion to institute and prosecute criminal causes,? Brack v. Wells, 184 Md. 86, 90 (1944),? enjoyed by a State?s Attorney, the Court Spoke to the precise issue Defendants raise here: ?In light of the broad authority given state's attorneys to assign duties to their deputies and assistants, State v. Aguilla, 18 Md. App. 487, 494, gen, denied, 269 Md. 755 (1973), whether lawyers or laymen, that constitutional of?cer cannot be charged with exceeding his authority by having investigators attached to his of?ce.? m. at 214. Defendants? abject failure to cite controlling authority that is contrary to their argument violates Rule of the Maryland Lawyers? Rules of Professional Conduct, speaks volumes about the frivolity of their motion, and clearly identi?es who is playing fast and loose with the rules that govern the legal profession. THE THREAT TO SELECT A PARTICULAR NON- ESSENTIAL DEFENSE WITNESS TO TESTIFY AT TRIAL TO SOMETHING THAT MANY OTHER WITNESSES COULD TESTIFY TO, IS NO BASIS FOR RECUSAL SIMPLY BECAUSE OF THE EXISTEN CE OF A PERSONAL RELATIONSHIP BETWEEN A PROSECUTOR IN THE BALTIMORE CITY OFFICE AND THAT POTENTIAL WITNESS The effort by Defendants to create a con?ict for the State?s Attorney?s Of?ce by virtue of defendant created action after charging would be laughable were it not so personally offensive and improper. To create this arti?cial con?ict, Defendants lay out a circuitous, unnecessary route, all the while ignoring key facts. Essentially, Defendants claim that one Donta Allen was a passenger in the police wagon with Mr. Gray during part of the time that Mr. Gray was in the same wagon. Although Defendants have had no legitimate access to Mr. Allen?s recorded statement to the police, on the basis of a snippet of the statement in a search warrant af?davit they claim that his statement is helpful to them. Subsequent to his giving the statement, their story goes, television reporter Jayne Miller had an ?exclusive? on air interview with Mr. Allen in which he ?somewhat retracted? his statement to the police. Defendants? Joint Motion to Dismiss and in the Alternative for Recusal of Baltimore City State?s Attorney?s Office (hereafter ?Defendants? Joint Motion), pp. 6, 13. Consequently, Defendants claim, Ms. Miller becomes a substantive or impeachment witness. Because Ms. Miller is in a relationship with a Deputy State?s Attorney working on the above captioned cases, Defendants claim ?there is no way around this conflict.? I_d. at 14. And for good measure, without any basis or evidence, Defendants insinuate that Ms. Miller learned the identity of Mr. Allen through her relationship with the Deputy. After detailing the existence of the personal relationship, Defendants write: ?It is unclear how Jayne Miller of WBAL learned the identity of the otherwise anonymous passenger.? E. at 14. This lurid tall tale about the Deputy violating her oath of of?ce to leak con?dential information to her domestic partner in order to change a witness? story lacks only one element: the truth. The fact of the matter is that Ms. Miller?s interview was the second interview given by Mr. Allen. Michael Shuh, a television reporter for Channel 13, did an interview of Mr. Allen, substantively the same as Ms. Miller?s, that took place before Ms. Miller interviewed him. Channel 13 boasted that Mr. Schuh was the ?rst to speak with Donta Allen: Mike Schuh is the ?rst to speak with Donta Allen about what he heard.? httg/lba Itimore .cbsloca n-in-the-va n-with-fredd ie-grav-brea ks-his- caE.emai Defendants can get Mr. Allen?s ?changed? story from Mr. Schuh. If a court did not determine Ms. Miller?s story to be cumulative evidence, they could get her interview without needing to call her as a witness. And if they want her as a witness to provide cumulative and redundant testimony, that does not create a con?ict for the State?s Attorney?s Of?ce. THE STATES MARRIAGE TO A COUNCILMAN WHO IS NOT A WITNESS. DEFENDANT OR LAWYER IN THIS CASE PRESENTS NO CONFLICT. Defendants contend that Mrs. Mosby has a con?ict of interest because her husband is the elected City Council representative of a district impacted by the riots. Without a scintilla of other evidence, they claim that the only reason the State?s Attorney sought charges against these Defendants was to enhance the political career of her husband. This is a truly breath-taking non- sequitur. Putting to one side that it ignores the essential facts that (1) Mr. Gray was a healthy young man when arrested without probable cause but died as a result of his treatment while in police custody and (2) that a judicial of?cer found probable cause to support each and every one of the charges against each Defendant, if the Defendants? con?ict theory were accepted it would mean that the Baltimore City State?s Attomey?s Office could prosecute no crimes in an entire Councilmanic District. Surely if that were the rule of prosecutorial con?icts it would exist in writing somewhere, yet Defendants are unable to cite any authority for this startling proposition. Defendants credit Mrs. Mosby?s announcement of the charges against them with quelling the riots that began in Baltimore during the last week of April, 2015. Even if that were true, given the independent judicial officers? ?ndings of probable cause, we would have thought that it was in the best interest of every law abiding resident of Baltimore City not just Mr. Mosby for all of the rioting, looting, burning and acts of violence to come to an end. Defendants offer nothing beyond speculation as to Mr. or Mrs. Mosby having any different interest than any other law abiding Baltimore City resident in peace and an end to violence, and they offer no legal authority for their fact-less assertion of con?ict of interest. If an elected prosecutor is prohibited from prosecuting cases that may indirectly impact the legislative district of her husband who is also a publicly elected of?cial, one supposes that prohibition would exist elsewhere than in the overwrought writing of the Defendants. THE FRIVOLOUS AND INACCURATE TORT CLAIMS NOTICES SERVED BY THE DEF ENDANTS AFTER THEY WERE CHARGED DO NOT GIVE THE STATES ATTORNEY FOR BALTIMORE CITY DIRECT FINANCIAL AND PROFESSIONAL INTEREST IN THE OUTCOME OF THE Six days after charges were ?led against the Defendants, they ?led Tort Claims Notices with Baltimore and the State of Maryland. The gravamen of these Notices is that the charges are not supported by probable cause because the facts asserted are patently false. Here, too, Defendants? argument fails completely because their ?facts? are wrong and the law is against them. First, the facts: The Tort Claims Notices echo the chorus of Defendants? attorneys? deliberate distortions of the Application for Statement of Charges (hereafter ?Application?) supporting the charges: ?The charges state that the knife, which was the basis of Freddie Gray ?5 arrest, was legal and therefore no probable cause existed to arrest him. If in fact the knife was illegal, as the [Defendants] contend that it was, then the underlying facts that form the basis of the statement of charges would be false.? Defendants? Joint Motion, Exhibit 3 (emphasis added). But the Application does not say that the ?knife was the basis of Freddie Gray?s arrest.? Although the Application accurately points out that the knife was legal under Maryland law, it makes clear that Mr. Gray was arrested well before the arresting of?cers knew he possessed a knife. Mr. Gray was handcuffed at his surrendering location, moved a few feet away, and placed in a prone position with his arms handcuffed behind his back, all before the arrestng of?cers found the knife. Application at 2. See. cg, Pyon V. State, 2015 Md. App. LEXIS 50 (Md. Ct. Spec. App. Apr. 6, 2015). Thus, the factual basis for the Claims Notices is wrong as a matter of fact, and could not possibly represent a ?nancial threat to the State?s Attorney. Legally, the Claim is not against her and for that reason also presents no ?nancial threat. Moreover, the Application for Statement of Charges initiates a prosecution, and the State?s Attorney has absolute immunity for initiating a prosecution. Imbler v. Pachtman, 424 US. 409, 96 S. Ct. 984, 47 L. Ed. 2d 128, 1976 US. LEXIS 25 (US. 1976). Finally, the notion that Mrs. Mosby would face disciplinary charges for reading from the publicly available Application for Statement of Charges betrays a fundamental misunderstanding of the case, wishful thinking, or both. ?To receive the bene?t of the ?public record? safe harbor, the lawyer must not provide information beyond quotations from or references to public government records.? Attv. Griev. Comm'n v. Gansler, 377 Md. 656 (Md. 2003). Mrs. Mosby provided no information that was not in the Application for Statement of Charges, and she therefore has nothing to fear from the Grievance Commission or frivolous civil suits from the Defendants. MRS. PAST CONNECTIONS TO THE ATTORNEY FOR THE FAMILY DO NOT REQUIRE RECUSAL After the Baltimore City State?s Attomey?s Of?ce began to look into the arrest of and injury to Mr. Gray, his family retained William H. ?Billy? Murphy, Jr. to represent them. In looking at the con?icts alleged by Defendants it must be kept in mind that Mr. Murphy represents no one in the criminal cases being pursued by Mrs. Mosby, and that Mrs. Mosby represents no one in the civil cases that Mr. Murphy may bring on behalf of the victim?s estate and/or family. The notion that Mrs. Mosby would bring baseless criminal charges with the entire nation watching just so that Mr. Murphy might have some advantage in the civil case is ludicrous. It is particularly so when one considers that the only advantage to Mr. Murphy posited by Defendants is if Mrs. Mosby obtains convictions. How will that happen if the charges are baseless? First, defendants claim that Mr. Murphy made a ?signi?cant? contribution to Mrs. Mosby?s election campaign. In fact, Mr. Murphy donated $4,000, approximately 1.3% of the campaign funds raised by Mrs. Mosby. This hardly seems signi?cant. Viewed from the perspective of Mr. Murphy, one of Baltimore?s most successful attorneys, it is no doubt even less signi?cant. Moreover, the Fraternal Order of Police donated $3,250 to Mrs. Mosby?s campaign. The $750 difference in contributions makes risible the defendants? contention that Mrs. Mosby is indebted to Mr. Murphy for his contribution. Second, Defendants point to Mr. Murphy?s service as a member of Mrs. Mosby?s transition team. Mr. Murphy, a former Baltimore City Circuit Judge and one of the most experienced and successful criminal defense attorneys in Baltimore?s state courts, was a natural for the position. Of course, there were thirteen (l 3) other members of the transition team. Mr. Murphy?s service as one of fourteen does not satisfy the closeness of personal relationship required for recusal. Third, Mr. Murphy represented Mrs. Mosby in connection with a frivolous complaint made to Bar Counsel during Mrs. Mosby?s campaign. The matter involved little work, was resolved in Mrs. Mosby?s favor, and is over. Fourth, Mrs. Mosby is criticized for meeting with Mr. Gray?s family and their attorney, Mr. Murphy. Mrs. Mosby takes quite seriously her obligation to pursue justice for the victims of crimes. Either she or one of her assistants make every effort to meet with the family of all homicide victims of homicides occurring since she took office. That Mr. Murphy is the Gray family lawyer had nothing to do with the meeting. Finally, and most despicably, Defendants rely on a motion ?led in a completely unrelated case, State of Maryland v. Jeffrey Bolger, Case No. 614227006. In that case, two police of?cers were charged with the killing of a dog. According to the Defendants and the motion they rely on, one of?cer?s charges were dismissed because he was represented by Mr. Murphy?s law firm, while the other still faces charges because he is represented by a lawyer who supported Mrs. Mosby?s unsuccessful opponent in the election campaign. As will be shown in excruciating detail when the opposition to that motion is soon filed, the contention of favoritism is not only untrue, but is or should be known to be untrue by the lawyers who made it. The fact of the matter is that one defendant?s charges were dismissed because the dismissed defendant agreed to cooperate against Mr. Bolger. As discovery material provided to Mr. B01 ger?s counsel reveals, the dismissed defendant?s proffer was made before Mrs. Mosby?s term began. The decision to dismiss the charges against the co-defendant was made for good reason by the previous administration. Moreover, the co?defendant was not represented by Mr. Murphy, but by a member of his law ?rm who has been nominated to be a federal judge. Defendants have regrettably adopted the tactics and smear campaign of Mr. Bolger?s lawyers, willing to say anything regardless of the facts, and completely indifferent to who is unfairly swept up in their baseless allegations. It is time to put a stop to these tactics. 10 CONCLUSION WHEREFORE, because the Defendants have not demonstrated even the appearance of a con?ict, let alone an actual conflict; because the Defendants have not cited controlling authority that approves the very conduct that they condemn; because Defendants cite no authority in support of their baseless theories; and because Defendants distort and ignore the facts relevant to their claims, the State?s Attomey?s Of?ce for Baltimore City respectfully requests that this Honorable Court DENY the Defendants? Joint Motion. Respectfully submitted, Marilyn J. Mosby, Stayte?f Attorney for?Baltimore City arm"- ?an?1 Michael Schatzow Chief Deputy State?s Attorney for Baltimore City MSchatzow@stattornev.orQ (443) 984-6000 120 East Baltimore. Street, 9th Floor Baltimore, MD 21202 .1 Table of Authorities Cases: Brack V. Wells, 184 Md. 86, 90 (1944) Carr v. State, 50 Md. App. 209 (1981) Imbler v. Pachtman, 424 US. 409, 96 S. Ct. 984, 47 L. Ed. 2d 128, 1976 US. LEXIS 25 (US 1976) Pyon v. State, 2015 Md. App. LEXIS 50 (Md. Ct. Spec. App. Apr. 6, 2015) State v. Aguilla, 18 Md. App. 487, 494, _ce_rt. denied, 269 Md. 755 (1973) Rules: Md. Lawyer's R. Prof?l Conduct 3.3 11 CERTIFICATE OF SERVICE 'r r' I HEREBY CERTIFY that on this day ofMay, 2015, a copy ofthe Of?ce of The State?s Attorney for Baltimore City?s Opposition to Plaintiffs? Joint Motion to Dismiss and In the Alternative for Recusal of the Baltimore City State?s Attorney?s Of?ce was sent by US. Postal Mail and emailed to: Matthew B. raling, Sean Malone Harris Jones Malone, LLC 2423 Maryland Avenue, Suite 100 Baltimore, MD 21218 (410) 366-1500 Attorney for Of?cer Caesar Goodwin Marc L. Zayon Roland Walker Marc L. Zayon, PA. 201 N. Charles Street, Suite 1700 Baltimore, MD 21201 (410) 727-3710 mzayon@walkerzayon.com Attorney for Of?cer Edward Nero Michael Belsky Chaz Ball Schlachman, Belsky Weiner, P.A. 300 East Lombard Street, Suite 1 100 Baltimore, MD 21202 (410) 497-8433 mbelsky@sbwlaw.com Attorney for Lieutenant Brian Rice Catherine Mead, Gray, P.A. One North Charles Street, Suite 2470 Baltimore, Maryland 21201 (410) 727-6400 Attorney for Of?cer Garrett Miller Joseph Murtha Murtha, Psoras Lanasa, LLC 1301 York Road, Suite 200 Lutherville, Maryland 21093 (410) 583-6969 imurtha?impllawyerscom Attorney for Of?cer William Porter Ivan Bates Tony Garcia 201 N. Charles Street, Suite 1900 Baltimore, Maryland 21 201 (410) 814-4600 ivan?tbatesgarciacom Attorney for Sergeant Alicia White gaff 3 tin-I i' I Th] Michael .Schatzow 1 Chief Deputy State?s Attorney for Baltimore City 12 STATE OF MARYLAND IN THE V. DISTRICT COURT CAESAR GOODSON OF MARYLAND CASE NO. 6B02294452 FOR GARRETT MILLER BALTIMORE CITY CASE NO. 3B02294449 EDWARD NERO CASE NO. 4B02294450 WILLIAM PORTER CASE NO. 0B02294453 BRIAN RICE CASE NO. 2B02294448 ALICIA WHITE CASE NO. 5B02294451 Defendants This matter having come before the Court upon the written motion of the Defendants, and the Office of the State?s Attorney for Baltimore City having opposed the Motion in writing, and good cause having been found to deny the Motion, it is, this day of May, 2015, ORDERED, that the Plaintiffs? Defendants Joint Motion to Dismiss and in the Alternative for Recusal of Baltimore City State?s Attorney?s Of?ce is hereby DENIED. 13 Judge, District Court of Maryland for Baltimore City 14