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Can officers in Freddie Gray case get impartial juries in Baltimore?

Judge Barry Williams ruled Wednesday that the officers will be tried separately, but a bigger decision looms: In a hearing next week, the judge will address a defense motion to move the trials out of Baltimore.

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    Baltimore City State's Attorney Marilyn Mosby (L) leaves the courthouse after the first day of pretrial motions for six police officers charged in connection with the death of Freddie Gray in Baltimore, Maryland September 2, 2015. Baltimore City Circuit Court Judge Barry Williams on Wednesday rejected defense motions to drop charges against six police officers in the case of a black man who died in April from injuries in police custody.
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Nearly five months after Freddie Gray died from injuries sustained in police custody – triggering days of rioting in Baltimore – the trials of the six police officers involved in his arrest are expected to test the impartiality of the city’s residents and the US legal system.

Judge Barry Williams ruled Wednesday that the officers will be tried separately, but a bigger decision looms. In a hearing next week, the judge will address a defense motion to move the trials out of Baltimore – a common defense tactic in high-profile cases like this one. Since the trials are in state court, they would be moved to another Maryland county.

The response to Mr. Gray’s death, from both the public and the media, “was unrelenting and overwhelmingly negative,” the defense says in its motion.

“The confluence of these circumstances creates an insurmountable prejudice to these Officers finding fair and impartial juries in Baltimore City ...,” the motion continues.

Several legal experts are not so sure, however. A. Dwight Pettit, a veteran Baltimore defense attorney, says there are two reasons that the defense’s arguments for a venue change are “not valid.”

The argument that pretrial publicity has been too great to ensure an impartial jury is nullified, Mr. Pettit says, because the case “has got worldwide publicity.”

“That is not cured by taking it from one jurisdiction to the next,” he adds.

A second argument – that the court wouldn’t be able to find enough jurors able to convince the judge that they will be fair and impartial – “insults the population of Baltimore City,” he says.

Many prospective jurors will automatically disqualify themselves by acknowledging that they have a bias, Pettit says. Of those left, he thinks the “voir dire” process – in which the judge and two legal teams personally question each prospective juror – will result in enough qualified jurors.

“I think we will find many people who can say, ‘Judge, I’m going to be fair,’ ” he says.

The process has produced juries for high-profile cases before. Just this year, amid widespread skepticism, a federal court in Boston was able to impanel a jury for the death penalty trial of Boston Marathon bomber Dzhokhar Tsarnaev.

But some legal experts aren’t so sure that fair and impartial juries can be found for the Baltimore trials. Daniel Medwed, a professor at the Northeastern University School of Law in Boston, says that the citywide curfew enforced in response to the riots after Gray’s death differentiates the trials from other high-profile cases.

“It’s an interesting test case because every potential juror was directly affected due to the curfew, and that’s unusual,” Professor Medwed says.

“It certainly doesn’t mean that the defense deserves a change of venue,” he continues. “It just means that the defense has a stronger argument than is often the case.”

If the venue change motion succeeds, it wouldn’t be the first time a trial of Baltimore police officers has been moved out of the city.

In November 2007, Gerard Mungo Jr., a 7-year-old at the time, was arrested for being on a dirt bike and was later handcuffed to a bench at police headquarters. His mother, Lakisa Dinkins – who was arrested at her sister’s home 11 days after her son’s arrest – later sued the police department for more than $700,000 in compensatory damages, contending that the two incidents left her son and his older brother with emotional and psychiatric problems that required professional help.

The trial was moved out of Baltimore to neighboring Howard County, a majority-white suburb, because of “pervasive, negative, continuing and prejudicial” pretrial publicity.

The defense motion to relocate the current trials references Ms. Dinkins’s suit, saying that the state Court of Special Appeals held that there was “reasonable ground to believe that the defendants could not receive a fair trial in Baltimore City, even with the assistance of voir dire.”

The judge in the Dinkins case found that the officers acted unlawfully in arresting the 7-year-old, but the Howard County jury decided not to award the family any money for damages.

Pettit was one of Dinkins’s attorneys, and he thinks the outcome of that case illustrates a flaw in the Maryland legal system that could compromise the new trials if they are moved out of Baltimore.

In the Dinkins case, the city court’s administrative judge made the decision on the new venue, Pettit says. There was no chance for an appeal. The jury that heard the case featured only one African-American, he adds.

“There’s nothing in [state] law for any type of hearing to determine the demographics of where the case is going,” he says.

If Judge Williams decides that the current trials should be moved, the decision on the new location would fall to Judge W. Michel Pierson, the administrative judge for the court.

Pettit believes that the only jurisdiction outside Baltimore with a population – and thus a jury pool – analogous to the city is Prince George’s County, a suburb outside Washington, D.C., that is majority African-American.

“If it were to be moved,” he says, “if it’s sent to any other county in Maryland, I think the case would in all senses be over.”

Douglas Colbert, a professor at the University of Maryland’s Francis King Carey School of Law in Baltimore, has written extensively about the differences between all-white and multiracial juries.

“Historically, all-white juries and predominantly white juries have failed to convict both police officers and white defendants for homicide crimes against African-Americans and other people of color,” says Professor Colbert, who attended the court hearing Wednesday.

“The sad truth,” he continues, “is that it’s only a multiracial jury that will be able to decide this case on the evidence and not on impermissible factors.”

He adds, “I genuinely believe that Baltimore’s criminal justice system will produce 12 fair and impartial jurors.”

A jury inside or outside Baltimore could carry different kinds of biases, points out Robert Kane, a criminologist at Drexel University in Philadelphia. A jury outside the city “might have people who will not listen to evidence, believing that the police are always right.”

“I think the City of Baltimore should at least try to select an unbiased jury,” he says. “A jury of last resort is a jury from out of town, but I don’t know that we’re at the last resort yet.”

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