STATE OF MARYLAND

CAESAR GOODSON
GARRETT MILLER

EDWARDNERO
WILLIAMPORTER
BRIAN RICE

ALICAWHITE

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IN THE
DISTRICT COURT
FOR

BALTIMORE CITY

cAsENO.6802294452
cAsENO.3802294449
CASENO.4B02294450
CASENO.0B02294453

cAsENO.2B02294448
CASENO.5B0229445t

Defendants

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JOINT MOTION TO DISMISS AND IN THE ALTERNATTVE F'OR RECUSAL OF
BALTIMORE CITY STATE'S ATTORNEY'S OFFICE
Defendants, Caesar Goodson, Garrett Miller, Edward Nero, William Porter, Brian Scott
Rice and Alicia White, by respective undersigned counsel, hereby file this Joint Motion to Dismiss

and, in the Altemative, for Recusal of the Baltimore

City

State's Attomey's Office in the

prosecution ofeach ofthoir respective cases and in support thereof states:

INTRODUCTION
On May 1, 2015, in the face of the threat of continued riots, protests, a city curfew, and

civil unrest, the State's Attorney for Baltimore City, Mrs. Marilyn Mosby publicly and with
inciting rhetoric arurounced at a press conference that she had filed oriminal charges against Casear
Coodson, Garrett Miller, Edward Nero, William Porter, Brian Scott fuce and Alicia Whitel, all

I In the haste to file charges, a differeat ' Brian Rice" and a different "Alicia Wbite," who nevor had any interaction
with Mr. Cray and aro not law enforc€meot offtcers, were mistakonly charged with crimos including mamlaughtcr,

 employees with the Baltimore City Police Deparhnent. These charges included second degee
murder, manslaugtrtor, assault, misconduct in office, and false imprisorunent.2 The charges were
based upon events which occurred on

April 12,2015. In unprecedented detail, the State's Attomoy

read word for word the Staternent of Probablo Cause to the

public. Near the conolusion of her

prcss confcrence, Mrs. Mosby herself directed a "message" to the world: "To the people

of

Baltimore and the demonstrators across Americ4 I heard your call for 'no justice no peace" Your
peace is sincerely needed as I work to deliver justice on

behalfofthis young man

..

.

[T]o the you0t

of the city. I will seek justice on your behalf. This is a moment. This is your moment. Let's insure
we have peaceful and productive rallies that will develop structural and systernic changes for
generations to come. You're at the forefront of this cause and as young peoplg our time is now-"

This was not the first nor only statement revealing tho State's Attorney's political and personal
motivation, beffalng the United States Constitution, the Maryland Declaration of Nghts and the
Maryland Rules of Professional Responsibility.3

The 146 Arnendment to the U.S. Constitution guarantccs all citizens protection from
overzealous prosecution, stating

in relevant part, 'No state shall...deprive any person of life,

liberty, or property, without due process of law." The Maryland Declaation of Rights, Art. 24
also states clearly, "[t]hat no man ought to be taken or imprisoned or disseized of his fieehold,

assault, false arrest, a.od misconduct in offtcc. Becausc Defendant Briatr Scoti Rice ad Alicia White tumed
tbemselves in, the arrest warrants for Mr. Brian Wesley Rice and the incorrect Mrs. Alicia White were uot oxecuted,
Thc enor in the ideotification was on the charging docuaents pr€parcd by the SherifPs Dopartsnent alrd sdopted by
tho State,s Attomey in her press conference. This was not a clerical elror, but r8ther En outright crror by those who
wore responsible for chargiag the DcGndantr.
2
GanoiMiltor and Edwsrd Nero were charged with sccond degree assault, false imprisorunent and misconduct in
ofEc€. Wittiam Porter and Alicia White were both ohargod with manslaughter, second degrec assault, and
offrce,
misconduct in o{Iico. Brian Scott Rice was charged with manslaughter, second degrec assault, miscolduct
aad false imprisonment. Caesar Goodson ir oharged with second degreo depmvcd heart murder, manslaughter,

il

second degrce assault, and misconduct in office.
3 .ieq e.g.,
"[T]he peoplo ofBaltimore City elecled me as the State's Attomey to applyjustice fairly and eqralty to
violent repeat offenders aod individuals who go and usurp their authority as police officers." Interviow wilh Dotr

Lemou, CNN (May 1, 2015).

 liberties or privileges, or outlawed, or exiled, or, in any marmer, destroyed, or deprived ofhis life,
liberty or property, but by thejudgnent ofhis peers, or by the Iaw ofthe land." This constitutional
overlay has been influential in developing flrther guidelines and nrles ofprofessional conduct for
prosecutors and other attorneys. The Maryland Rules ofProfessional Conduct outline the manner

by which attomeys must purport themselves in the legal arena. Specifically, there are special rules
regarding the manner by which prosecutors must cotrduct the,mselves and rules governing conflicts

of interest.a In Maryland, we hold prosecutors to

a higher standard

for a reason

-

an individual's

constitutional rights hang in the balance and the prosecutor must uphold those rights, even in the
face

ofpolitical and personal pressures. For the reasons discussed below, each ofthese principles

outlined above have been egregiously violated by the State's Attorney for Baltimoro City.
Rarely in the history of any criminal case has a prosecutor so directly maintained so many

conflicts of interest. Rarer still are instances where such clear confliots exists and a prosecutor
steadfastly refixes to recuse him or herself.s These conflicts include the following: (1) the seizing

of political and personal gain by Mrs, Mosby and her husband; (2) personal relationships with
individuals who will be witnesses at trial; (3) the role ofher office as the 'tnvestigators" for this
caso; (4) the pending

civil claim

against Mrs. Mosby and her office; and (5) the financial interest

of the attomey for the family of Freddie Gray, a close friend, financial supporter and attorney for

Mn. Mosby.
There is no better evidence demonshating these conflicts dran the charging documents

themselves. At bes! the charges levied against these officers are exhaordinary prosecutorial
overreaching. At worst, they are something far more nefarious'

t See e.g. Mo. R. Crs. J. Al.{D ATrvs Rule l6-812, MRPC l;l,3.6,3.8.
J
Se?, e.g., In response to I qucstion as to hcr rcspome to a request that sh€ recuso horself, Mrs. Mosby rcsponded,
think thafa absurd." Intcrview with Don kmou, CNN (May l, 2015).

"I

 The conflicts presented by the State's Attorney's Office are deep, are real, and are
imminent.
This motion is being filed at this junction because the Defendants have gmve concems
about the charging deoisions which

pmcess of the

will

be made in the near future and their ability to receive due

law. Before this case proceeds further, the Defendants would respectfirlly request

this Honorable Court to recuse the State's Attorney and either dismiss the case, such that an
independent prosecutor, appointed

by the court can make any firther charging decisions, or

appoint an independent prosecutor to decide how the case should proceed.

FACTS
The salient facts of this Motion

of this Motion. However,

a

will be set forth in further detail in

dre Argument section

briefoverview ofthe facts surrounding this incident is necessary to set

the appropriate stage.
On May 1, 2015,

a

Major from the Baltimore City SherifPs Deparhnent sigrred, under oat},

an Application for Statement of Charges against each of the abovereferenced individuals. The
charges ranged from second degree murder to a myriad ofmisderneanor offenses. The charges
relate to the alleged apprehension ofFreddie Gray on

Apil12,2015.

all

It is apparently the position

of the State's Attorney's Office that the original investigating officers lacked probable cause to
arrest Mr. Gray, as the knife for which he was arrested was '1awful under Maryland law." (See

Attached Exhibit

I,

Statement of Probable Cause against Garrett Miller;

Statoment is identical

it is believed that tltis

for each of the Defendants). No allegation of force was alleged in the

charging documents. It is not the position or averment of the Stato that any police officer beat Mr.

Gray, or used oxcessivo forco upon him. Rather, it is simply tho position of tle State's Attomey
that the original anest was unlawful, as the knife was

"lawfii

under Maryland law" (emphasis

 added) and that the orsuing events (i.e. not seat belting

Mr. Gray and not providing him with

medical assistance) flowed from the initial unlawful arrest. Of sigrificance to this Motion, there
was one individual in the back of the vao with Mr. Gray during a portion of the events, Donta

Allen.
Unfortunately for the State, Mr. Gray was not arrested and charged with violating Maryland
law. Rather, OfEcer Garrett Miller arrested and charged Mr. Gray with violating Section 19.59.22
of the Baltimore City Code.6 It should be noted that the City Code is far broader in its prohibitions
than Maryland law. This pivotal distinction was omitte.d from the Statement of Charges swom out
by the SherifPs Departnent. This distinction was similarly omitted from the Statement ofProbable
Cause read to the cameras by Mrs.

Mosby. If in fact, the knife was unlawful, or one was reasonable

in a belief that it was, the foundation of the State's argument collapses. If the knife was actually
illegal, it stands to reason that the very people who charged these Officers would then be guilty

of

false imprisonment of each of the Officer-Defendants, by virhre of the logic employed in the
State's charging decisions.

It

should be noted that counsel for Defendants

Miller

and Nero (the

two officers with pending District Court trial dates) have roquested to see the actual knife on
multiple occasions. Each ofthese requests have been denied.
On May 7, 2015, a Notice of Tort Claim was filed with the Mayor and City Coursel of
Baltimore and the State of Maryland, placing the City and State on notice that the above-referenced
officers intend to pursue a claim against Mrs. Mosby and those responsible for charging this case,
as the charging documents contain errors and omissions that resulted

6

in the unlawful arrest and

"Switch-blade knives. (a) Possession or sale, etc., prohibited. It shell be unlawful for any person to sell, carry, or
knife with an automalic spring or ottrer devico for oponing ancVor ctosing tlc blado, commonly knorvn
as a switoh-blade knife. (b) A:ry person violating the provisioor of this seotiorq shall upon conviction thereof, be
fiood not more than $500 or be imprisoued for not more than I year, or both, in th6 discretioo ofthe court."
BALTMoRE, MD., CoDE art. 19, $ 59-22; See Attached Efibit 2, Statemetrt of Charg€s for Frcddic Gray.
possess any

 detention

ofall six ofthe officers.

(See Attached Exhibit 3, Tort Claim

& Public Information Act

Requests).

Mrs. Mosby publically contends that the charges were levied against tlese Police Officers
after a thorough and independent investigation conducted by her offic€. It is the position of the
Defendants that the charges against them are baseless and that there are material false staterneots

and omissions contained

in the Statement of

Charges, Mrs. Mosby's office performed the

investigation, and as such, the employees and agents of her office have become the cenEal
witresses to this case.

As discussed in detail below, the chief prosecutor of this case is in a relationship with a
local television news reporter. That rcported conducted an "exclusive" interview with Donta Allen
on May

l,

2015. The story that

substantively different

in

Mr. Allen told this reporter is key to the defense of this

case and is

certain respects from the story that he told the original police

investigators, as detailed in a search warrant executed earlier in the investigation of this matter.

As such, the reporter is also a witness to this case.
As. further discussed below, Mrs. Mosby's husband

is a councilman for the very district

where these events occurred; her inciting rhetoric in this case reveal clear exEa-prosecutorial
motivations and ambitions.

Finally, Mrs. Mosby's psrsonal and professional relationships with the Gray family
attomey, William Murphy, cast a shadow over the prosecution and all charging decisions. As
discussed in detail below, Mr. Murphy is not only a mentor

bu!

fild financial supporter of Mrs. Mosby,

also her attorney.

It should be noted that yesterday, in

a sepamte and unrolatod matter to this one, a

similar

Motion to Recuse Mrs. Mosby from Prosecution was filed on the grounds that her relationship

 with William Murphy unfairly biased the outcome and status of that case. It was alleged in that

Motion that trvo Defendants (both also polico officers) were charged with identical criminal
charges based on identical

facts. It was alleged that on the day Mrs. Mosby was swom into officg

she entered a nolle prosequi (dismissal) against

Mr. Murphy's clienl A copy of that Motion is

attached as Exhibit 4.
Each of thqse conflicts, separately and individually, as well as the statements made by Mrs.

Mosby to the publio, in her capacity as the State's Attomey for Baltimore City, denrand recusal.

ARGUMENT
A State's Attomey's "decision to prosecutq just like

the methods [s]he employs to procure

conviction, must be in accord with the fair and impartial adminishation ofjustice, untainted by
any contaminating influence." Sinclair v. State,27 8 Md.243, 260 (Md. 1976).

furttrer stated,

"if

't\e Sinclair cnurt

a prosecutor has, or would olearly appear to a reasonable person having

knowledge of the pertinent faots to have, any pecuniary interest or a sigrrificant personal interest

in a civil matter which may impair [her] obliption in a criminal mattor to act impartiaily toward
both the State and the accused, then [s]he is, on the basis ofthis State's public policy, disqualified
from initiating or participating in the prosecution ofthat criminal cause." Id. at254.

T\e Sinclair Cottl went on to hold that the following reasoning was apt:
The prinoiple long ago was recognized that no man can adequately
or properly serve two masters, and this is the chief subject matter of
Canon 6 [(now Canon 5)] of t]re Canons ofProfessional Ettrics. It is

inconsistent with the public intercst and welfare for any law
enforcement officer directly or indirecfly to rq,resent any person
involved in a oiminal matter, except the State, or receive any
personal pmfit or gain as the result of the arrest, conviction or
acquittal of one charged with the inftaction of the law or in
co nection with the filing of any such charge. . . . The books are
replete with casos indicating that any appearanc€ of evil in
connection with the administration of public office should and must

 be avoided; and particularly is this
the enforcement of ths law.

tue of those offices involved in

***
To permit a prosecuting attomey to have an interest of any nature
whatsoover in any civil proceedings, directly or indirectly, and
which proceedings involve similar facts or the same subject matter
as a criminal prosecution then pending or thercafter initiated, can
only give rise to suspicion concerning and rolating to the motives of
the prosecuting attorney involved, and bring such office into
disrepute with the Public.

Id. at255-256 citing

State v. Detroit Motors,62 N.J. Super, 386, 163 A. 2d 227,229-31

(L.Div.

1960).

Maryland has also statutorily addressed the inherent aeed for prosecutors to be held to
higher standards. Section (a) of Rule 3.8, Special Responsibilities ofa Prosecutor, indicates that
a

prosecutor in a criminal caso shall "refrain from prosocuting a charge that the prosecutor knows

is not supported by probable cause." Further, section (e) states in relevant part that the prosecutor

shall 'tefrain fiom making extrajudicial comments that have a substantial likelihood of
h9!gh!9ning
are

plblic condemnationof

th"e

qqrqqed." Thgse-spsgia! respqn-silitltles of qgoggcutgr

in addition to Rule 3 .6, which applies to all attorneys in the context of trial publicity. Section

(a) of Rule 3.6 states,

[a] lawyer who is

participating

or has

participated

in

t]re

investigation or litigation ofa matter shall not make an extrajudicial
staternent that the lawyer knows or reasonably should know will be
disserninated by means of public communication and will have a

substantial likelihood of materially prejudicing an adjudicative
proceeding in the matter.
Bottr the spirit and law of Sinclair as wall as the statutory rules outlined above havo been
egregiously violated by the Baltimore City State's Attorney's

Office. As suoh, this Honorable

court should grant t}is Joint Motion to Dismiss and, in the Altemative, for Recusal of the

8

 Baltimore City State's Attomey's Office in the prosecution of each of the Defendants' respective
cases.

I.

THE RELATIONSHIP BETWEEN MARILYN MOSBY A}ID NICK MOSBY
CAUSES AN UNAVOIDABLE CONTLICT.

Standard 3-1.3(f) ofthe ABA General Standards for the Prosecution Function identify the basis

for the Defendants' assertion that Mrs. Marilyn Mosby's relationship to Mr. Nick Mosby, and the
respective roles that they play in the politioal community of Baltimore City, establishes

a basis

for

Mrs. Mosby (aud the Office of the State's Attomey for Baltimore City) to be disqualified from
prosecuting the cases of the above-referenced defendants, officers of the Baltimore City Police
Departnent.
Standard 3-1.3

(0

Conflicts

of

lnterests states:

"A

prosecutor should not perrnit her

professional judgnent or obligations be affected by his or her own political, financial, business,
property or personal interests."

Marilyn Mosby, State's Attomey for Baltimore City, is manied to Nick Mosby, Councilman
for the ?6 Dishict of the Baltimore City Council. Mr. Mosby's distict includes many of the
noighborhoods effected by the civil uruest and rioting that occurred in the City of Baltimore after
the death of Freddie Cray. A review of the Baltimore City Council Webpage, and specifically, a

review of tho 7fi DisEict CommunitiesT that are geographically located within tho confines of the
?o Council Disrict, discloses that the Committees and Associations that are in that Disbict includo:

Mondawmin Merchants Association
Mondawmin Neighborhood Improvement Association, Inc.
Nehemiah Homeownet' s Association of Sandtown-Winchester
Penn-North Nehemiah Homeowners' Association Penn-North
Revitalization Corporation Pennsylvania Avenuo Merchants
Association
? See

AttEched Extribit 5, Msp ofthe City of Baltimorc 76 CouDcil DisEict and

Cornmunities.

9

E

lietiag of the ?e District

 Pennsylvania Avenue
Habitat Homeowners'
Sandtown-Winchester
Sandtown-Winchester

Redevelopment Collaborative Sandtown-

Association
Community Building in Partnership
Improvement Association

Undersigned counsel believes that this Court can take judicial notice of the fact that the

neighborhoods set forth above were harshly impacted and considered 'Ground Zero" for the
violent turbulence that took place after the death ofFreddie Gray. The images ofthese commrmities
were projected in every local and national media form and medium that covered the violence that
emptied in Baltimore City.

All communities

that are within the confines

ofthe 7d Disrict

are home

to the constituents of Mr. Mosby. He clearly had a professional and personal interest in the need
to eliminate the rioting and desfuction ofthe property in his Council Dishict. Likewise, his wife,

Marilyn Mosby, had a professional and personal interest in accommodating the needs of her
husband - his potitical future directly affects her personal, professional and political interests.

The need to quell the raging infemo of human rage and revulsion within the confines of
the 76 District was emergent. Failure to put an end to tho destsuction ofproperty and the ongoing

violence would lead to greater degradation ofa community that had existing systemic problerns

within the community. Mr. Mosby's relationship with the State's Attorney for Battimore City
placed him in

a

unique position to influence the decision ofan elected official who was susceptible

to be influenced in choosing to file criminal charges against the defendants in this matter. It is
inconceivable that Mrs. Mosby was not influenced by the challenges presented to her husband as
a community leader

of noighborhoods that were literally "up in flames."

The preservation of prosecutorial impartiality is perhaps most important during the
charging process, the phase of a criminal proceeding when the prosecutols discretion is most
apparent. The theme which runs throughout the criminal procedure process in this country, and

in

this State, is that all persons should be protected from having to defend against frivolous

 prosecutions, and that one major safeguard against such prosecutions is the function ofthe State's

Attorney in screening criminal cases prior to instituting prosecution. Surely, an essential aspect

of

this safeguard must be the prosecutor's freedom from any personal or ernotional involvement in a
controversy which might bias her objective exercise ofjudgnent'
Chants

of "no justicg no

peace, no racist police" were heard

tkoughout the streets of

Baltimore before (and after) Mrs. Mosby elected to hastily announce that she determined that

it

was appropriate to charge the above-referenced defendants with criminal acts.
Soon after a Major of the Baltimore City Sheriffs OffEce appeared before a District Court

of Maryland Cornmissioner seeking the issuance of arrest warrants for the six officers who are the
defendants in this matter, Mrs. Mosby held a press conference. At this press conference Mrs-

Mosby proclaimed that she brought criminal charges against the offcers to show not only the
people of Baltimore, but also "the demonstrators aofoss America" that "I heard your call

for'no

justice, no peace" and proceeded to move forward with the politically motivated prosecution of
the six olEcers who have served the City of Baltimore as proud police officers. As a result, these

olficers soon found themselves offered up to the masses by Mrs. Mosby to quell the uprising that
caused the most harm to the District where hor husband is the

city counoil representative.

The National District Attomeys Association National Prosecution Standards offers
guidance to prosecutors in the execution of their duties. ln the inhoductiofl to the Standards, it is
stated that,

.,These standards are intended to be an aspirational guide to professional conduct in the

perforn l ance of professional function. Unless otherwise indicated, they are intended to apply to

the chief prosecutor (by whatever title) in any office, as well as to deputy aud assistant
prosecutors."

11

 Standard 1-3.3(d) appears to be somewhat similar to the

ABA Standard, but offers stronger

language in encouraging a prosecutor to recuse himself or herself from involvement in a matter

that sray have the appearance of a conflict of interest. Specifically, the Standard states, 'oThe
prosecutor should excuse himself or herself from any investigation, prosecution, or other mafier

where personal interests of the prosecutor would cause a fair-minded, objective observer to
conclude that the prosecutor's neukalitS judgrnent or ability to administer the law in an objective
manner may be compromised.

"

The languago used by the National Association of District Attomeys in offering guidanco

to

prosecutors

in

regard to determining when

it is appropriate to remove

oneself from the

prosecutor function as it relates to an investigation or prosecution that may be influenced by a
personal matter is clear, and direct. Any fair-minded, objective observer would conclude that Ms.
Mosby's neuhality, judgrrent and ability to administer the law in an objective marurer was, and is,
compromised by her relationship to Nick Mosby, and his position as

a 7fi District counoilman.

Ms. Mosby must recognize this conflict, and make the ethically appropriato deoision in regard to
the conflict oaused by her marriage to 7s Distriot couocilman Nick Mosby. she must reinove
herself and her office from the prosecution of this matter.

II.

THE BALTIMORE STATE'S ATTORNEY'S OF'F'ICE SIIOULD BE RECUSED

PERSONAL RELATIONSHIPS BETWEEN A KEY
PROSECUTOR IN THEIR OFFICE AND AN INDIVIDUAL WHO WILL BE A
WITNESS AT TRIAL.

BECAUSE

OF

Counsel for Defendants demand that Mrs. Mosby recuse herself and her Office from the
above-oaptioned cases in light of the inherent and overly prejudicial conflict raised by thc lead
prosecutor's relationship to

a

potentially vital witress who is also

a

key member ofthe local media.

Jan Bledsoe, Esq., Deputy State',s Attomey and lead prosecutor for the st8te, is in a relationship

t2

 with layne Miller, an investigative reporter for WBAL-TV. This relationship was confirmed by
Jayne

Miller to the Baltimore Sun,

as

recently as Friday, May l, 2015.

On A9i127,201,5, a search warrant was executed on t}re home of Officer Caesar Goodson.
According to the affidavit attached the search warran! Donta Allen, the only other person in the
back ofthe van with Mr. Gray during the

ridg indicated to homioide

detectives on the day

ofN{r.

Gray's arrest that in his opiniorq "Mr. Gray was hying to hurt himself" (See Attached Exhibit 6,
Search Wanant).

On

April 29,2015 the Washington Post reported that a second passenger was in the van

with Freddie Gray and according to a source, the passenger heard Gray'banging against the walls"

ofthe van and described what he believed was Gray "intentionally trying to injure himself." The
Post article referonced the Search Warrant but omitted Mr. Allen's name, citing concems over his
safety.s

On April 30, 2015, Jayne Miller of
second passanger, Donta

WBAI

presented an exclusive interview

with the

Allen. When ioterviewed by Jayne Miller ofWBA! the individual who

was in the van with Mr. Gray somewhat rehacted his earlier statemenl He now stated that he

heard 'light bangrng" and that he "never ever said to police that [Gray] was hurting himself."
During this interview with Ms. Miller, Allen doscribed

a

barrier which divided the rear of the van

into two sections and as such, Allen stated that not only did he not

seo Gray, or roalizo there was

a second passenger, but that "there's no place where a man can hurt

himselfin ttrere,"

After Jayne Miller's interview with Donta Alle,n, it became clear that Mr. Allen's story had
changed. Accordingly, Ms.

8

Miller necessmily becomes either a substantive witness or

After Mr. Atletl's iuterview with Jayne Miller, the !r'ashington Post did go on to r€lease his name.
13

an

 impeachment rolative to the veracity and detail of Mr. Allen's story. There is simply no way around

this conflict.

It is unclear iow Jayne Miller of WBAL leamed the identity ofthe otherwise anonlnnous
passenger. However, the fact remains that Ms. Miller interviewed Mr. Allen
and Ms. Bledsoe

filing criminal charges against the defendants

investigation being tumed over to the State's Attomey's

g.[g

to Mrs. Mosby

and prior to the results ofthe police

Office. That interview, thereforq

presumably was considered in the decision by the State's Attorney's Office to have charges filed.

The conflict is truly problernatic in that Mr. Allen presented a different version of events that is
more beneficial to the State's theory of the case in speaking with Ms.

Miller.

Thus, Defendants

would have an opportunity to oxamine Ms, Miller as to the nature of her conversations with Mr.
Allen prior to his interview, any statem€nts he said while not being recorded, and Bny statemonts
he made as to why he had varying accounts of key testimony in the case. Ms. Miller may also
need to testifu as to the authenticity of the recording of

Mr. Allen. Ms. Miller

and her notes have

already been requested and subpoenaed by Defense counsel.

ln further recogrition of the inherent conflict, on May 5, 2015, Jayne Miller state( "I'm
actually going to be covering less of [the Freddie Gray case] , because I have

a personal

connection

to one ofthe proseoutors." Counsel for Defendants avers that this conflict has crealed the need for
the parties involved thus far to reouse themselves. As others, inoluding Jayne Miller hersel( have
recogmzeA this conflict of interests and recused herself, Mrs. Mosby should also recogrrize this

undisputed conflict and recuse herself fiom any further prosecution in the above-oaptioned cases,

This conflict is real and undeniably intertwined with the prosecution and charging decisiorN ofthis
case.

III.

TIIE BALTIMORE CITY STATE'S ATTORNEY'S OFFICE SEOIJLD BE
RECUSED BECAUSE OF THE STATE'S ATTORNEY'S OFFICE'S

 INDEPENDENT INVESTIGATION, DISREGARDING THE BALTIMORE
POLICE DEPARTMENT INVESTIGATION.
The conflicts with Mrs. Mosby's office extend well beyond the conflict of her chief
prosecutor and a witness. The conflicts involve the entirety ofher investigation and the necessity

of calting all 'lnvestigators"

as witrresses.

Mrs. Mosby has publicly stated that the Baltimore

State's Attomey's Office has conducted its own independent investigation, under her supervision,
apart from the Baltimore City Police DepafEnent investigation. Specifically, she has stated in her
press conference hold on

May

1, 2015,

"I thought it was very important to have

an independent analysis as

to what took place and transpired from the very beginning' We are
independent agencies from the police departnent' We've been
working independently. And I can tcll you that we put all ofow
resources to make sure that we w€re pursuing and leading where the
facts took us in this case, which was to pursuejustice. I oan tell you
that from day one, we independenfly investigated' We're not just
relfng solely upon what we were given from the police departnent,

period."

In an interviow following the press

conference,

Mrs' Mosby publicly addressed the

investigation further stating,

"I can tell you, as I stated, we had a number of invesligarors. You
can see it's bsen an allhands-on approach from the very
beginning. So, I sent my investigators orJtto the scene. We have a
number of them who are ight here, .. So, yes, we have leveraged
the police investigation, but at no point did we comptomlse our own
independent investigdtion into tlis case." (emphasis added)
Mrs. Mosby's statements are telling in that she repeatedly refers to and implies that the
investigators assigred by the Baltimore State's Attomey's of6ce aro uoder her control. She refers

to them possessively because they are her

subordinates and subject

management.

15

to her suporvision

and

 The fact that these investigators are conkolled by Mrs. Mosby creates a clear
undeniable conflict of interest, These investigators

will

and

necessarily be called to testifu as a result

of the defendant's right to attack the investigation conducted by the Baltimore State's Attomey's
Office. As Mrs. Mosby is in a supervisory role, these investigator witnesses are at her mercy in
terms of their at-will employnent status. As a result, these witnesses cannot possibly be expected

to testifi without undue influence. They undoubtedly know that their testimony may be c€ntal to
the trial strategy and clear need oftheir employer to obtain a conviction ofthe defendant. As suoh,

their testimony will be unduly influenced by a desire to maintain employment with the Baltimore

City State's Attomey's Office.
When the State's Attomey assumes the role of the investigator, her ofEce becomes the

witless. In order to appropriately
investigation, as

it was

defend this case, the defense

erroneous, egegious, and deeply

will be required to attack the

flawed. This attack will necessarily

require subpoenaing and calling as witnesses many of Mrs. Mosby's onployees. It cannot be said

that this does not present a conflict of interest with her office. This is precisely the reason for
separation

of ttre police deparfinent and State's Attomey's Office. Here, the State's Attomey

Office has created an indisputable conflict, simultaneously taking on the role ofpolice, prosecutor,
and witness.

W.

THE BALTIMORE CITY STATE'S ATTORNEY'S OT'FICE SHOULD BE
RICUSED BECAUSE STATE'S ATTORNEY MOSBY HAS A DIRECT
FINANCIAL AND PROFESSIONAL INTREST IN THE OUTCOME OF THE
CASE.

OnMay 7,2015,

a

Tort Claims Notice was served upon both the City of Baltimore and the

State of Maryland alleging that false and misleading statements and omissions in the Statement

of

Probable Cause resulted in the unlawful arrqst and detention of eaoh of the six polioe officers
involved in this matter. It was alleged in the Tort Claims Notice tha! amongst various other issues,

 the legality of the knife and the law under which Mr. Cray was chargod, were falsely detailed
the Statement of Probable Cause. As a result, the Tort Claim's Notice states

in

ttnt lvlrs. Mosby and

her office "do not now have any legally justifiable reason to believe that the above-referenced

individuals had committed the crimes for which they are charged." (See Attaohed Exhibit 3, Tort
Claims Notice). The Tort Claims Notice goes on to aver that i{, in fact, the knife at issue was

illegal (as indicatod by Officer Miller in his charging document ofMr. Gray), then not only is there
an absolute defense to these criminal cases, but, there is a claim for false imprisonmeut, arrest and

malicious prosecution of the six police officers, resting squarely on the door step of the State's

Attomey's Office. As discu$ed below, because of the State's Attomey Office's investigatory role
in this matter, they have forfeited immunity from civil suit.
Moreover, The Baltimore City State's Attomey's reckless, careless and inaccurate public
statements are not protected by absolute immunity and have thus exposed her to

potential discipline

by the Attomey

Grievance Commission

of

civil liability and

Maryland, creating

an

impermissible personal bias and necessitating the appointment of an independant prosecutor.
Despite clear guidauce from the Court of Appeals discouraeing public statements by
which may diminish

a

a

prosecutor

defendant's right to an impartial jury and fair hial, Mrs, Mosby's inaccurato

statements and inflammatory hlperbole at her press conference potentially subject her to sanction

from the Attomey Grievance Commission and cMl liability. ,lee e.g., Attorney Grievance
Commission of Maryland v. Gansler,377 Md. 646 Q003).

Choosing to igrore long established Supreme Court Case law regarding the diminished

immunity of a prosecutor who acts as an investigator and gives extajudicial statements,

Ivfus.

Mosby has subjected herself to civil suit by the officers she seeks to prosecute. The thrGat of

t7

 pecuniary and professional sanction have stripped lvks. Mosby of the impartiality necessary to

fairly make prosecutorial decisions moving forward.
The United States Supreme Cout in Buckley v. Fitzsirumons givos olear direction that a
prosecutor eqioys "absolute immunity for the initiation and pursuit of a criminal prosecution,
including presentation of the state's case at
(I

trial."

BuckJey v.

Fitzsiw ons,509 U.S. 259, 270

993). This absolute immunity includos "the professional evaluation of the evidenoe assembled

by the police and appropriate preparation for its presentation at Eial..." Id.
However, Mrs. Mosby has gone to great lengths to stress her decision to lovy oharges was

based on her offices 'lndependent investigation," and not reliant on the Baltimore Police

Deparfnent's investigation. Furthermore, Mrs. Mosby declared at her press conference that her
office performed the role of an 'tndependont investigation." The Court in BucHey, relying on its
decisionin Imbler v. Pachtman, 424 U.S. 409, 432 (1976), reiterates that a prosecutor who acts as
an investigator and not as an advocate does not enjoy absolute

immunity

Furthermore the comments have violated Maryland's Rules ofProfessional Conduct, Rules

3.6 and 3.8 (Special Responsibilities

of

a Prosecutor) which require attorneys

to refrain from

making extrajudicial statements that have "a substantial likelihood of materially prejudicing an
adjudicative proceedingl' and prohibits

a

prosecutor from filing

a charge

not suppolted by probable

cause. Mrs. Mosby's public assertions at her press conference fly in the face of the Court

of

Appeals stem waming to prosecutors that "a prosecutors, in particular should be even more
cautious to avoid making potentially prejudicial extrajudicial statements." Gansler at 698.

v.

TIIE BAI,TIMORE STATE'S ATTORNEY'S OFFICE SIIOULD BE RECUSED
BECAUSE OF TIIE COMPELLING INTERESTS OF TIIE ATTORNEY FOR
TEE FAMILY OF FREDDIE GRAY, A CLOSE FRIEND, FINANCIAL
SUPPORTER AND AITORNEY FOR MRS. MOSBY.

18

 It is the position of the undersigned counsel that Mrs. Mosb5

and the Office of the State's

Attomey for Baltimore City, be recused from flirther prosecution of the named Defendants in the
above cited case numbers. There is an overwhelming conflict of interest that has arisen, and
continues, in the State's Afiomey's representation of the City of Baltimore' Mrs. Mosby has a

significant personal and professional relationship with William H. "Billy'' Murphy ttte founding
partner of Mwphy, Falcon & Murphy. This ongoiog relatiomhip has oeated a conflict for which
the only remedy is the recusal of Ms. Mosby and the Bal+imore State's Attomey's OfEce.

Mr. Murphy is the Gray family attomey and presorts himself as their confidant

aod

spokesperson. He has repeatedly appeared on television, both locally and nationally, on behalf

of

the Gray family. Mr. Murphy has a substantial financial interest in tlre outcome of any criminal
case against these six police officers, as any gurlty finding

will

improve his position in any

potential civil suit against the City ofBaltimore and its police d€partnent.

With rofaence to any potential civil claim by Gray family for whom Mr. Murphy is
counsel,

ifthe

death of Mr. Gray was found to be accidental and in the course

ofa legal detention,

at best a olaim uoder Maryland State law claim for negligence or gross negligence would be
supportable. As a result of the Local Goverrmrent Tort Claims Act and Maryland tort law, there

would be a limitation of local governmeflt liability, and Mr. Murphy would not able to recover
attomey's fees. That cap in local govemment liability would not be applicable if the Gray family
had a viable federal Constitutional claim under $ 1983, and attomey's fees could be awarded to

Mr. Murphy. Notably, the charges against the Defendants that Mrs. Mosby most clearly
overreached on are false imprisonment, assault, and second degree murder, eactr ofwhicir involve
somo [evel of

intent, Iotentional action under color of larv which deprives and individual of

19

a

 Constitutional right allows for a Constitutional $ 1983 claim. Therefore, Mrs. Mosby's pursuit

of

criminal charges involving inten! potentially has a direct financial impact on Mr, Murphy,

Mrs. Mosby's connection to Mr. Murphy is of great concem to the undersigned counsel,
and it should be of even greator concem to the residents of this oity. Mrs. Mosby had Mr. Murphy

has a msrnber of her team as she beg,an the process of hansitioning into her role as the State's

Attorney for Baltimore City. Mr. Murphy also donated significantly to Mrs, Mosby's campaign,

in essence helping her win her position. The connection between Ms. Mosby and N{r. Murphy is

undeniable and

the conflict

it

creates

is

detrimental

in the pursuit of

justice.

The Maryland Rules ofProfessional Conduct require attomeys in all positions to adhere to
a strict code of ethical conduct. Mrs. Mosby's continuod prosecution of the named Defendants

woefully undenepresents justice, which is at the core of any prosecution. Maryland Rule 1.7
specifically states that there is a conflict if, "there is a significant risk that the representation ofone
or more clients

will

be materially limited by the lawyer's responsibilities to another client, a former

client or a third person or by a personal interest of the lawyer" (emphasis added).

In addition to her personal relationship, Ms. Mosby has a professional relationship with
Mr. Murphy. A complaint was filed against Ms. Mosby to the Attomey Grievance Commission of

Maryland late last year. [n an e-mail dated October 29, 2014, Mr. Murphy outlines his
representation of Ms. Mosby. (see Exhibit 7).

It is clear from the exhibit,

and

fiom the response

of the Attomey Grievance Commission of Maryland, ttrat Mr. Murphy was retained by Ms, Mosby.

Not only was Mr. Murphy's firm retained but he personally handled her matter. It is unclear as to
whether this professional retationship is still ongoing with regards to ary subsequent filings.

When interviewed recently by CNN's Don Lemon, Mrs. Mosby was asked about her
contact with the Gray

family.

She indicated that she had brought 0rern in to her offioe and ,.spoken

20

 with them and their attomey." Mrs. Mosby has clearly had direct contBct with Mr. Murphy in
regards to this case.

The Maryland Rules ofProfessional Conduct are very clear when it comes to conflicts

of

interest. It is plainly stated in comment 8 under Maryland Rule 1.7 that, "[e]ven where thero is no
direct adverseness,

a

conflict ofinterest sxists ifthere is a sigrificant risk that

a

lawyer's ability to

consider, recommend or carry out an appropriate course ofaction for the client will be materially

Iimited as a result ofthe lawyer's other responsibilities or interests." The Court can glean guidance

from Comment 26 of Rule 1.7, which states that, "[r]elevant factors in determining whether there
is a siSnificant potential for material limitation include the duration and intimacy of the lawyer's
relationship with the client or clients involved, the functions being performed by the lawyer, the

likelihood that disagreements will arise and the likely prejudice to the client from the conflict.',
Yesterday, in a separate and unrelated matt€f, to this ong state of Mar.vland v. Jeffiev
Boleer.

a

nearly identical Motion to Recuse Mrs. Mosby from prosecution was filed on the grounds

that her relationship with trl/illiam Murphy unfairly biased the outcome and status ofthat case. It
was alleged in that Motion that two Defendants (both police officers) were charged with nearly
identioal criminal charges based on identical facts. It was alleged that the two defense attorneys

(Mr. Murphy and Steve Levin) had been requesting the state's Attomey's office, prior to Mrs.
Mosby taking office, to dismiss all charges as they were not supported by any expert opinions (to
the contary, the medical examino's report actually supported dismissal of Mr. Lrvin,s client, not

Mr' Murphy's). According to the Motiorq on Mrs. Mosby's first offioial day after being swom
into office, she entered a nolle prosequi (dismissal) in favor Mr. Murphy's client (see Attached

Exhibit,

Motion, state v.Bolger). The Motiotr cites the unfair and undeniable interrwined

27

 relationship by Mrs. Mosby and Mr. Murphy. The same reasoning applies with even greater force

to the instant case.

CONCLUSION
Each of the above-captioned Defendants have firndamental concems about undeniable

conflicts of interest which have tumed the prosecution of this case into a platform for exfaprosecutorial motivations. These concems are rooted in the United States Constitution, th€

Maryland Declaration of fughts, the Maryland Rules of Profe,ssional Conduct and the ABA's
Guidelines for Prosecutors. As stated earlier, these concerns are deep, are real and are imminent.
They require

a

dismissal ofthese cases, with the ability of an independent prosecutor to re-evaluate

the charging deoisions, or, in the least, a recusal ofMrs. Mosby's office,

Respectfu

lly submitted,

C*o (z
Catherine
Flffi

Matthew B. Fralin

Mead, Flynn, & Gray, P.A.
One North Charles Stree! Suite 2470
Baltimore, Maryl and 21201
(41o) 727-6400

Harris Jones & Malone, LLC
2423 Maryland Avenue. Suite 100
Baltimore, Maryland 2l2l 8
(410) 366-1500
Attorney for Oficer Caesar Goodson

Attorneyfor Oflicer Garrett Miller

Roland Walker & Marc L. Zayon, P.A.
20I N. Charles Skeet, Suite 1700

Baltimorg Maryland 21201
(410) 727-3710
Attorney for Olficer Edward Nero

o

Mu(hq

Psoras, & I*nasa,
1301 York Rd., Suite 200
Lutherville, Md 21093

LLC

(410) 583-6969
Attorney for Oficer William Porter
22

 ["- o 3,,Q
Michael
Chaz

Belsky

L

'

Ivan Bates
Tony Garoia
201 N. Charles Stee! Suite 1900

Ball

P.A.
I 00
Baltimore, Marylaad2l?02
(410) 685-2022
Sctrlaclunan, Belsky & Weiner,

3

00 East lombard Street, Suite

Baltimorg Maryland

1

(410) 814-4600
Attorney for S*geanr

Attorneys for Lieutenant Brian Rice

23

2I

20

I

Alicia

White