Minutes ago trial Judge Barry Williams denied a last minute motion to dismiss all charges by the defense team for van driver Police Officer Caesar Goodson.  Goodson is charged with murder, manslaughter, second-degree assault, misconduct in office and reckless endangerment in the death of Freddie Gray, and his bench trial begins today. Late yesterday the Baltimore Sun and other news outlets report that trial Judge Barry Williams would this morning first hear a motion dismiss all charges against Officer Goodson as a result of repeated prosecutorial misconduct.  That motion has now been denied.

Specifically, the motion filed by Goodson’s lawyers earlier this week (but under seal until yesterday) asked Judge Williams to dismiss the charges against their client on the grounds that the prosecution has repeatedly concealed from the defense exculpatory evidence. This follows on at least two prior incidents in the Freddie Gray trials in which prosecutors had similarly withheld exculpatory evidence from the defense.

I have embedded the defense motion to dismiss at the bottom of this post. That motion also includes a transcription of the initial full interview with Donta Allen and detectives, in which he describe Freddie Gray’s movements in the van as extremely energetic. It’s worth the read.

Prosecutors have a legal duty to share with criminal defendants any exculpatory evidence upon which they might stumble in the course of their investigation. Violations of this duty are commonly referred to as Brady violations, named after the 1963 Supreme Court case of Brady v. Maryland which established this legal duty. The traditional remedy for a deliberate, or even accidental, failure to disclose such exculpatory evidence is dismissal of the criminal charges.

In this particular case, prosecutors failed to disclose to the defense that they had engaged in a lengthy interview with one Donta Allen, a crime suspect placed in the same police van as Freddie Gray. Prosecutors never revealed this additional interview even up to the day before Goodson’s trial. Indeed, the defense would never have learned of it except that the attorney representing Allen, Jack B. Rubin, felt ethically obliged to inform them of the event, and did so about a week ago.

Upon receipt of this information from Attorney Rubin, Goodson’s defense counsel contacted prosecutors to learn why they had failed to disclose they had not disclosed that interview with Allen. Prosecutors claimed they were under no obligation to disclose the interview because Allen had not said anything different from his earlier, disclosed, statements, and that the state did not intend to call Allen as a witness.

The defense filed a motion to dismiss at that time, which trial Judge Barry Williams kept under seal. After reviewing both defense motions and state responses, and in view of his intent to hold an open-court hearing on the issue today, Judge Williams unsealed the documents yesterday.

Allen’s testimony is of particular importance to the case because he had initially testified that he heard the other passenger in the van, whom he could not see, was making a great deal of noise as if they were throwing themselves around the van or banging their head on the van. This testimony would be consistent with the theory that Gray’s injuries were of his own making, and not the result of any police misconduct.

Allen’s testimony changed, however, once he discovered that the other person in the van had been Freddie Gray, and he became aware of the political import of the case. From that point onward Allen contradicted his initial statement, and claimed that he only heard faint tapping from the other, unseen, passenger.

Allen is currently serving a 10-year sentence for a 2013 armed robbery conviction.

Goodson’s attorneys knew about a meeting between Allen and prosecutors that took place on May 4, 2016, but were never informed about a follow-up meeting that took place on May 7, 2016. The Baltimore Sun described this meeting as an “extended proffer session.”

Essentially, a “proffer session” is a deal-making meeting between prosecutors and a witness or defendant in which prosecutors offer incentives (e.g., reduced or dropped charges) in exchange for cooperation. It is during such a proffer session that Allen would have been most incentivized to be completely frank in his discussion with prosecutors.

This is not the first time that prosecutors in the Freddie Gray trials have been found to have withheld evidence from the defense. The first Freddie Gray trial of police officer William Porter, which ended in a hung jury, showed that prosecutors had failed to disclose that Gray had allegedly claimed a pre-existing back problem the month prior to his fatal neck injury. Porter’s defense attorneys had requested that Judge Williams dismiss the charges against their client because of this prosecutorial misconduct, but Williams declined to do so.

As promised, here is the defense motion to dismiss charges against Goodson to be heard and decided today by trial Judge Barry Williams–it’s a good read:

–-Andrew, @LawSelfDefense

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