Why Freddie Gray cases won't get a fair hearing in Baltimore

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Story highlights

  • Philip Holloway: There is little chance of finding impartial jurors in a city that was torn over the death of Freddie Gray in police custody
  • Prosecutor and judge should back a change of venue for the trials, he says

Philip Holloway, a CNN legal analyst, is a criminal defense lawyer who heads his own firm in Cobb County, Georgia. A former prosecutor and adjunct professor of criminal justice, he is former president of the Cobb County Bar Association's criminal law section. Follow him on Twitter: @PhilHollowayEsq The opinions expressed in this commentary are solely those of the author.

(CNN)In September, Judge Barry G. Williams ruled against motions for a change of venue filed by all six former Baltimore police officers charged with various crimes in connection with the custodial death of Freddie Gray. The prosecution opposed those motions, a move that prosecutor Marilyn Mosby may one day regret should a court of appeals disagree with Williams. Williams ruled, "The citizens of Baltimore are not monolithic. They think for themselves. ..."

If there were ever a case that required a change of venue this was it. Opposition to the defense motions to change venue may turn out to be a huge mistake for the prosecution. Naturally they want a conviction, but even if they get it they must protect it on appeal.
Also, it is a mistake for the prosecution to think there are not jurors biased in favor of the police and therefore against the prosecution. A far safer strategy for Mosby and her prosecution team would be to consent to a change of venue. This way, they eliminate an unnecessary issue for any appeal and they level the playing field -- for both sides.
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    Among other things Williams and Mosby may not have taken into consideration is that sometimes people actually lie to get onto a trial jury, especially in high profile cases. These are known as "stealth jurors," who operate with an agenda to sway the jury or to perhaps hang a jury and force a mistrial.
    With such strong feelings among the citizens of Baltimore, it is logical to believe a change of venue would reduce the risk of a stealth juror impacting any of the six trial juries that will be needed.
    Consider the words of one pro-prosecution protester after learning of Williams' ruling: "Oh, I'm ecstatic. I'm ecstatic. Now, I know that we still have work to do, you know? We still have to stay organized, and we have to stay peaceful because we do want convictions." Stealth jurors often have this mindset -- the mindset that they are doing legitimate work on behalf of a righteous cause.
    The risk of stealth jurors is not limited to the defense. It is not hard to imagine a pro-police stealth juror hiding within the mix either.
    It's not that the court must find one impartial jury, rather it must find six impartial juries, because all the defendants will be tried separately. As jury selection begins in the first trial it is apparent the court is having difficulty finding anyone who hasn't heard about the case, and a very large number have strong feelings about the case.
    But the worst of it (other than the prospective jurors being led into the court through the protesters) is that they are permitting jury selection to take place in a courtroom where the protesters can be heard outside chanting "All night, all day, we will fight for Freddie Gray."
    Freddie Gray: How did we get here?
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    The content of the chant speaks to the protesters' intent: They want these prospective jurors to hear them and they want convictions. It is without question a mistake by the court and the prosecution to permit the prospective jurors to hear this commotion.
    Consider who the 72 prospective jurors are for each trial. They are members of a community that saw massive civil unrest, rioting, looting and violence in the wake of Gray's death. In this first trial, every single prospective juror was either personally affected by these riots or knows someone who was. Homes and businesses were destroyed throughout the city, so it stands to reason that anyone selected for jury service in these cases felt adverse consequences directly or indirectly.
    In addition, virtually every single one is likely aware that the city has paid out a $6.4 million settlement to Gray's family. Does that send a signal that city leaders believe the former officers are guilty? Absolutely it does. And who actually pays that settlement? The taxpayers. Who are the taxpayers? The jurors are some of those taxpayers. The jurors who will decide the fate of the defendants are people who have paid an enormous settlement to the family of Freddie Gray.
    Even if they tell the judge they can be fair, can they really be fair? Or is it more likely that all these things are lingering in the back of their minds?
    Assume for a moment that some or all jurors hold some form of bias. It stands to reason that some are biased against the protesters out of anger for the widespread destruction and violence after Gray's death. If so, that bias can work against the prosecution just as it can work against the defense.
    People who support the protesters may hold a bias in favor of the prosecution, whereas people who are against the protesters -- perhaps the owner of a business that was looted or someone injured in the riots -- may harbor a bias in favor of the defense.
    Without question the First Amendment rights of the protesters are vital and must be protected. However, the fair trial rights of the accused take priority over everything else. The judge should not permit anything to occur that remotely calls into question the fairness of the process -- to both sides.
    The Freddie Gray case and the resulting criminal trials are historic and will be studied and dissected by lawyers, criminologists, police trainers and academics for decades or longer. If the trial bears even the perception that the process was anything less than completely fair, the results will forever be in dispute.
    As a former prosecutor, the notion of "protecting the conviction" was always present in everything I did during trials. As much as we may have wanted to win a jury verdict, we wanted that verdict to be upheld on appeal.
    As a prosecutor and as a defense attorney I have always wanted a fair and impartial jury. The criminal trial jury has been referred to as the cradle of American liberty because criminal defendants are presumed to be innocent and an unbiased jury is the citizen's last protection against the awesome power of the state. The purpose of that jury is to reach a verdict. The word verdict is based on the Latin word "verus" -- truth.
    The purpose of the jury is to speak the truth and no real truth can be found unless the jury is truly fair and unbiased. The trials should be moved. Marilyn Mosby may or may not get her convictions but even if she does, the more difficult legal battle may be convincing a court of appeals that Judge Williams was right to keep the trials in Baltimore.