STATE OF MARYLAND ?tis

CAESAR GOODSON,EDWARD NERO,GARRETTMILLER,BRIAN RICE,ALICIAWHITE, &WILLIAMPORTER

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IN THECIRCUIT COURT FORBALTIMORE CITY

CASENo. 115141032CASENo. 115141033CASENo. 115141034CASENo. 115141035CASENo. 1i5141036CASENo. 115141037

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Now comes the state of Maryland, by and through Marilyn J. Mosby, the State's

Attomev for Baltimore city; Janice b\lk",Deputy state's Attomey for Baltimore city; and

Matthew Pillion, Assistant state's Attomey for Baltimore city; and submits this Response to the

Defendants' Motion for Removal and supporting Memorandum. For the reasons stated below,

the State requests that this Honorable Court deny the Defendants' Motion for Rernoval at this

time but with leave for the Defendants to renew their Motion during or after voir dire of

prospective jurors prior to the trials of these matters.

Summarv of Arqument

The Defendants argue that because pretrial publicity has occurred since the end of April

of this year, the court should immediately order these cases removed from Baltimore city

circuit court pior to voir dire on the authority of either (1) the presumptive juror prejudice

doctrine that forms part of the guarantees ofdue process and a fair trial under the United States

constitution and the Maryland Declaration of fughts or (2) the removal provisions of Maryland,s

co,stitution and implementing procedural rule. Both arguments fail. Regarding the

presumption of prejudice, the Defendants rely on a fatally outdated and improper view of when

prejudice should be measured and by what standard. Unlike the doctrine's jurisprudence from

K. t 00D

the 1960s when the Supreme Court presumed prejudice irrespective of voir dire, the Court now

strongly favors utilizing voir dire itself to measure the existence of publicity-induced public

prejudice prior to making any presumptions. Additionally, the Defendants incorrectly apply the

doctrine's factor-balancing test by measuring Baltimore's size using the wrong metric, conflating

general publicity with prgudicial publicity, failing to await sufficient passage of time before

assessing public sentiment, and ignoring the relevance that non-joinder will have on assessing

prejudice in all six Defendants' cases. Likewise, as to Maryland's specific rernoval provisions,

the Defendants would again lead the court to error. They misconceive the meaning of juror

"impartiality'' in high-publicity cases, incorrectly equating knowledge of a crime with

prejudgrnent of the accused. They also ignore 100 years of precedent by asking the court to

order removal so soon after the cases have been charged. More importantly, they utterly fail to

meet their burden to demonstrate that publicity has caused the extreme degree of local prejudice

that warrants removal pior to voir dire. Ultimately. the appropriate time to assess the predicate

facts for removal will come when the court and the parties have an opportunity to question

prospective jurors about whether they have formed a fixed opinion of the Defendaats, guilt.

Until then, the court should not, as the Defendants request, demeaningly prejudge the ability of

Baltimore's citizens to firlfill their Ea4itional duty to impartially determine the facts of criminal

A. The Doctrine Defined and Exemplified

The Defendants assert that the federal and state constitutional doctrine of presumptive

juror prejudice mandates immediate removal of their cases from Baltimore City. Supporting this

claim, however, the Defendants inaccurately recite the doctrine's application as it has evolved

through decades of appellate refinement. At its core, the doctrine posits "that adverse pretrial

publicity can create such a presumption of prejudice in a community that the jurors' claims that

they can be impartial should not be believed" and a change of venue may be needed to ensure a

fair trial. Patton v. Yount,467 U.S 1025, 1031 (1984). The doctrine focuses on juror opinions

but does not hold that "the mere existence of any preconceived notion as to the guilt or

innocence of an accused, without more, is sufficient to rebut the presumption of a prospective

juror's impartiality," for that "would be to establish an impossible standard." Irvin v. Dowd, 366

U.S. 717, '123 (1961). Indeed, [p]rominence does not necessarily produce prejudice, and juror

impartiality . . does not require ignorance;' Skilling v. tls., 561 U.S. 358, 381 (2010)

(emphasis in original). "In these days of swift, widespread, and diverse methods of

communication, an important case can be expected to arouse the interest of the public in the

vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some

impression or opinion as to the merits of the case . [which] is particularly true in criminal

cases;' Imin,366 U.S. at722-23.

The doctrine, thus, applies only to "'those shong and deep impressions, which will close

the mind against testimony that may be offered in opposition to them; which will combat that

testimony and resist its force."' Id. a1722 (quoting Chief Justice Marshall in 1 Burr's Trial 416

( 1807)). "[T]he test is whether the nature and strength of the opinion formed are such as in law

necessarily raise the presumption of partiality," and a juror should not be set aside until the

moving party "shows the actual existence of such an opinion in the mind of the juror." Irvin,366

U.S. at 723 (internal citations and quotations removed). When kying to demonstrate such an

individual opinion based on evidence of generalized public opinion, the challenger must show "a

community with sentiment so poisoned against [him or her] as to impeach the indifference of

jurors who [would have] displayed no animus of their own" duing voir dire. Murphy v Florida,

421 U.S. 794, 803 (19't s).

Only three times has the Supreme Court ever found such a local sentiment, and the

Court's process for measuring publicity-induced juror prejudice has evolved since these three

infamous examples. In Rideau v. Louisiana,373 u.s. ':-23 (1963), wilbert Rideau was convicted

of murder and sentenced to death in Calcasieu Parish, lnuisiana after he was arrested for robbing

a bank in Lake charles, kidnapping three employees, and then killing one of them. The day after

Rideau was arrested, the local sheriff made an audio- and video-taped recording of a jailhouse

"interview" in which Rideau, flanked by guards and without a lawyer, "admitted in detail the

commission of the robbery, kidnapping, and murder, in response to leading questions by the

sheriff." Id. at 724-25. A local television station then broadcast this film three times to

respective audiences of 24,000, then 53,000, and lastly 29,000, in a parish with a population of

only I 50,000 people. 1d. ar 724. Ar trial, the court denied a motion to change venue, and of the

seated jurors, three jurors admitted to having watched the televised confession and two jurors

were parish deputy sheriffs, all ofwhom the trial court refused to strike for cause.

The Supreme Court reversed the conviction '\rithout pausing to examine a particularized

hanscript of the voir dire exarntnation of the members of the jury." Id. at 727. The court

described the trial as a "kangaroo court" and, noting that such a televised confession had never

before been aired in the parish, described the film's impact on the defendant's rights, saying,

"subsequent court proceedings in a community so pervasively exposed to zuch a spectacle could

be but a hollow formality." Id. at 726-27. T\e film, the court concluded, "in a very real sense

rryas Rideau's trial-at which he pleaded guilty to murder" before the eyes of the ..tens of

thousands ofpeople who saw and heard it;' Id. at 726 (ernphasis in original). Justice clark, in a

prescient analytical dissent, criticized the majority's opinion given the scant record below, ..not

so much because it deviates fiom the principles established in lrvin, but because it applies no

principles at all" since it reached the conclusion that due process had been denied "without

establishing any substantial nexus between the televised 'interview' and petitioner's trial . . . .,,

Id al'729 (Clark, J., dissenting). He characterized the majority's reasoning that the telecast was

itself the trial as "some informal and illicit analogy to res judicata.', Id.

Two years later, in Estes v. Texas,38r u.s. 532 (1965), Justice clark wrote for the

court's majority, which revemed Billie Sol Estes's conviction for swindling after the press

caused "considerable disruption" during pretrial hearings and after "massive pretrial publicity,,

gave the case "national notoriety." Id. at 535-36. The trial took place in the town of Tyler in

smith county, Texas, and over defense objections, the trial court permitted live coverage of

pretrial hearings by "at least 12 cameramen," with "[c]ables and wires snaked across the

courtroom floor, three microphones . . . on the judge's bench and others beamed at the jury box

and counsel table." Id. at 536. These hearings lasted two days, and the ,.affair was highly

publicized and could only have impressed those present, and also the community at large, with

the notorious character of the petitioner as well as the proceedings.', Id. The court emphasized

that the decision to broadcast the hearings and parts of the subsequent trial .,increased the

intensity ofpublicity on the petitioner" and "inherently prevented a sober search for the truth,,' as

evidenced by the fact that jury selection "took an entire week,,' after which still .,four of the

jurors selected had seen all or part of those broadcasts." Id. al 551. The trial itself lasted only

three days, and the judge's orders permitting press in the courtroom ,.made the trial more

confirsing to the jury, the participants, and to the viewers." 1d. while Estes showed ..no

isolatable prejudice" to his defense caused by the media disruptions, the Court found the record

sufficient, reasoning that "at times a procedure employed by the State involves such a probability

that prejudice will iesult that it is deemed inherently lacking in due process." Id. a|542-43.

Similarly, tt Sheppard v. Manarcll,384 U.S. 333 (1966), the Court, again with Justice

Clarke writing the opinion, reversed Sam Sheppard's conviction for the murder of his pregnant

wife in Cuyahoga County, Ohio, after a change ofvenue was denied and press interfered with the

trial itself. As later characterized, Sheppard's conviction "arose from a trial infected not only by

a background of exfiemely inflammatory publicity but also by a courthouse given over to

accommodate the public appetite for carnival." Murphy, 421 U.S. at 799. Indeed, the Court

examined five volumes of clippings from all three of Cleveland's newspapers, which published

claims that Sheppard had refused a lie detector test or injection with truth serum, pre-indictrnent

editorials that Sheppard was "getting away with murder," articles that repeatedly "onphasized

evidence that tended to incriminate Sheppard," allegations of damning "scientific tests at the

Sheppmd home" that were never infoduced at trial, and front page headlines asking, "why Isn't

Sam Sheppard in Jail?,' sheppard, 384 U.S. at 339-342. During jury selection, the veniremen's

names and addresses were all published in the paper, and prospective jurors received anonymous

letters and telephone calls about the case. Id. at 342. At the trial itself, the judge permitted

construction of a special table inside the bar stretching the entirety of the courtroom and less than

tkee feet from the jury box and at which sat 20 feporters. of the four rows of benches behind

the bar, three full rows were assigned to press, with Sheppard's and his wife's family relegated to

one side of the back row. Id. at 343. Inside the courthouse, multiple rooms wele tmnsformed to

permit faster press coverage, with a broadcast room even set up directly next to the jury

deliberationroom.ld.Thepressphotographedthejury,irrterviewedthejudgeasheerrteredthe

courthouse, and surrounded Sheppard during recesses. Id. at 343-44. press presence inside the

courffoom made it "difficult for the witnesses and counsel to be heard" ald made "confidential

talk among sheppard and his counsel almost impossible during the proceedings.- Id. at 344.

Sheppard's statements to police and the coroner had all been published, and when one wihressed

contradicted those statements dunng trial, a radio broadcast called Sheppard "a pe4'urer" and

mmpared him to then-notorious perjurer and suspected communist Alger Hiss. Id. at 34: .

When Sheppard later testified that police had misheated him, a Captain Kerr in the local police

publicly denied the claim, with the paper running the headline, "'Bare-faced Liar,' Ken Says of

Sam." Id. at 349.

In assessing the extent to which this coverage impacted the jury, the court found no

"doubt that this deluge of publicity reached at least some of ore jury." Id. ar 357 . The court

emphasized that the record prevented a fuller assessment because the trial judge repeatedly

refused defense requests lo voir dire the jury about 'thether they had read or heard specific

prejudicial comment about the case." Under the circumstances, the Cou( stated it could "assume

that some of this material reached members of the jury." 1d. The court also stressed the judge,s

utter failure to control the courtroom environment and to timit the amount of information

released to the press. Id. at 358-59.

B. The Doctrine's Evolution Since the 1960s

The Defendants sfess the Sheppard case as demonstrating the proper application of the

presumptive prejudice doctrine, and they devote much of their Memorandum to reciting

nunerous examples of publicity since April, 2015, that they claim prejudice their ability to

receive a fair trial in Baltimore. This publicity, they claim, ma.ndates immediate removal. what

they fail to inform the Court, however, is that since the 1960s, the doctrine has evolved away

from presuming prejudice irrespective of voir dire and now favors; in line with Justice Clark's

Rideau dissent, utilizing voir dire itself as the best means of measuring whether publicity has so

satwated the community as to warrart the presumption that prospective jurors are not telling the

truth when they swear they can be impartial. The concept of presuming prejudice remains part

of the process of conducting a fair trial, but the timing of when to make that presumption has

changed sirce Sheppard.

Indeed, nine years after Sheppard, in Murphy v. Florida, 421 U.S. 79a e975), the

Supreme Court returned to the doctrine of presumptive prejudice and summarized its prior

holdings in lrvin, Rideau, Estes, and sheppard as flowing from cases that ,vere entirely lacking

in the solemnity and sobriety to which a defendant is entitled in a system that subscribes to any

notion of faimess and rejects the verdict of a mob." Id. at799. The court rejected the idea that

these cases "stand for the proposition that juror exposue to . . . news accounts of the crime with

which [the defendant] is charged alone presumptively deprives the defendant of due process.,,

Id. The Court, instead, held that reviewing courts must look "to any indications in the totality of

circumstances that [a defendant's] trial was not fundamentally fair." Id. The court re-itfiated

that while ordinarily a juror's oath of impartiality suffices to ensure an appropriate panel, ,.the

juror's assurances that he is equal to this task cannot be disposifive of theaccused,s rights, and it

rernains open to the defendant to dernonsbate 'the actual existence of such an opinion in the

mind of the juror as will raise the presumption of partiality.", Id. atg00 (quoting lrviz).

In appllng this standard to Murphy's claim that pretrial publicity prejudiced his jury

panel, the court examined the voir dire transcipt in detail and found ,.no such hostility to

petitioner by the jurors who served in his trial as to suggest a partiality that could not be laid

aside)' Id. As part of this totality assessment, the Court held that *[t]he length to which the hial

court must go in order to select jurors who appear to be impartial is [a] factor in evaluating those

jurors' assurances of impartiality." Id. al 802-03. The Court reasoned that *[i]n a community

where most venirgrnen will admit to disqualiffing prejudice, the reliability of other's

protestations may be drawn into question; for it is then more probable that they are part of a

community deeply hostile to the accused, and more likely that they may unwittingly have been

influenced by it." Id. at 803. In lrvin, the Court noted as an example, "90% of those examined

on the point were inclined to believe in the accused's guil! and the court had excused for this

cause 268 out of the 430 venirsmen." 1d.

Another nine years after Murphy, the Court again emphasized in Patton v. Yount, 467

u.s. 1025 (1984), its preference for assessing juror prejudice tkough careful voir dire abott

their exposure to publicity rather than drawing immediate inferences from publicity alone. The

case involved the notorious rape and murder of an lS-year-old high school sh.ldent in

Luthersburg in Clearfield County, Pennsylvana. Id. at 1026-27. Yount had been the student's

math teacher and confessed to police that he kiiled her, after which he was convicted for the

murder in 1966. Id. at 7027. When that conviction, however, was later overtumed after the

Pennsylvania Supreme Court ruled that the confession violated Miranda, the case returned for

trial in 1970. 1d. Yount, in light of his suppressed mnfession, moved for a change ofvenue on

the basis that 'lvidespread dissemination ofprejudicial information could not be eradicated from

the minds ofpotential jurors." 1d. The trial court denied that motion, and after Yount was again

convicted, the Third Circuit, on habeas review, examined the voir dire transaipt in great detail

and reversed, concluding wtder lryIn that jurors' assuralces of impartiality could not be

betieved. Id. at 1028-29.

The Supreme Court, in affirming the conviction, agreed that the Third Circuit correctly

gave close scrutiny to tJlte voir dire hanscripts but disagreed with the lower c.urt's assessment of

the record, particularly in light of the amount of time that had passed between yount,s two trials.

Id. at 1032. The Court noted from the record that many potential jurors "testified that at one time

they had held opinions" but that "time had weakened or eliminated any conviction they had had.,,

Id. at 1033. The court held that although many jurors "remembered the case,', ,.the relevant

question is . . . whether the jurors . . . had such fixed opinions that they could not judge

impartially the guiit of the defendant." Id. at 1035. Ultimately, the court concluded that the

"voir dire testimony and the record of publicity do not reveal the kind of ,wave of public

passion' that would have made a fair trial unlikely by the jury that was empaneled as a whole.',

Id. at 1040.

continuing this preference toward waiting for voir dire before making any

determinations as to the extent of community prejudice, the court rn Mu'Min v. virginia, 500

u.s. 415 (1991), considered Dawud Mu'Min's appeal on the question of whether the state trial

court, in assessing prospective jurors' exposure to publicity leading up to his murder trial, was

constitutionally required to "make precise inquires about the contents of any news reports that

potential jurors have rcad." Id. at 424. Answering this question in the negative, the court

examined closely the trial record and emphasized that '[a] trial court's findings of juror

impartiality may be overtumed only for manifest error." Id. at 428 (internal quotation marks

removed). While the Court acknowledged that the "case engendered substantial publicity [and

that] 8 of the 12 venirepersons eventually swom as jurors answered on voir dire that they had

read or heard something about the case," the court distinguishd Iryin in that ,.none of those g

indicated that he formed an opinion as to guilt or that the information would affect his ability to

judge [the defendant] solely on the basis of the evidence presented at trial." Id. Significantly,

the Court stated that "[h]ad the trial court in this case been confronted with the .wave ofpublic

passion' engendered by prefial publicity that occurred in connection with Irvin,s tial, the Due

Process clause of the Fourteenth Amendment might well have required more extensive

examination of potential jurors than it undertook here." Id. at 429. The court, thus, favored

reaching voir dire even in cases like Imin rather than irnrnediate removal based solelv on a

presumption that publicity will likely have prejudiced the jury pool.

In its most recent examination of the presumptive prejudice doc tine irt skilling v. united

States, 561 U.S 358 (2010), the Supreme Court continues to favor jury selection itselfas the best

means to determillhg e&q! qfprgtnq! publicity o! juror impartiality. The case involved the

highly publicized conspiracy and fraud trial of former Enron cEo Jeffiey Skilling who

unsuccessfrrlly sought a change in venue and was convicted by a Houston jury, after which the

Fifth circuit court of Appeals held on review that "the volume and negative tone of media

coverage generated by Enron's collapse created a presumption ofjuror prejudice.,, Id. at 375.

The Fifth circuit further held, however, that "the presrimption of prejudice is rebuttable, and it

therefore examined the voir dire to determine whether the District Court empaneled an impartial

jury," concluding ultimately that the Govemment had in fact overcome this presumption and that

"Skilling had not shown that any juror who actually sat was prejudiced against him.', Id. at 376

(intemal quotations and brackets removed). The Supreme Court granted certiorari to decide

whether the trial court had erred by'by failing to move the trial to a different venue based on a

presumption of prejudice" and whether "actual prejudice contaminate[d] Skilling,s jury ], Id. at

377.

L7

The Court, given the overall circumstances, found ',a presumption of prejudice

unwarranted," id., n. 10., and so even though the Court noted that ,,[t]he parties disagree about

whether a presumption of prejudice can be rebutted, and, if it can, what standard of proof

govems that issue," the court stated, "because we hold that no presumption arose, we need not,

and do not, reach these questions." Id. at 385, n. 18. Far from rejecting the Fifth circuit,s

approach, the court, in making this determination not to presume prejudice, reviewed its prior

holdings in Rideau, Estes, ard sheppard and concluded, "[a] presumption of prejudice, our

decisions indicate, attends only the extreme case." Id. at38t. Rebuffing Skilling,s assertion that

the Court should not even examine the voir dire as in these three cases, the Court narrowly read

Esles and Sheppard as involving 'tnedia interference with courtroom proceedings during tial,,

aad called such reliance on them in a claim based only on publicity ..misplaced.,, Id. at 3g2, n.

14 (ernphasis in original). Moreover, the court's analysis in finding no presumption of

prejudice looked, in part, to the post-hoc efficacy of voir dire in screening out jurors

prejudicially affected by the'videspread community impact,'of Enron,s collapse and Skilling,s

co-defendant's '\rell-publicized decision to plead guilty', shortly before skilling's tial. Id. at

384-85. while the court stopped short of salng that Rideau, Estes, and sheppard were wrong

for not examinin g the voir dire before finding prejudice, the court, in line with Mu'Min, st.essed

that the consfitutional goal is juror impartiality, and ,,[w]hen pretrial publicity is at issue, primary

reliance on the judgnent of the trial court makes especially good sense,' given that a ,Judge's

appraisal is ordinarily influenced by a host of factors impossible to capture fully in the record-

among therr, the prospective juror's inflection, sincerity, demeanor, candor, body language, aad

apprehension of duty." Id. at 386-87 (intemal quotation marks omitted). The court then focused

72

the rernainder of the opinion on the adequacy of voir dire and whether actual prejudice had

infiltrated the seated panel.

From this review of the Supreme Court's more recent presumption ofprejudice cases, the

Defendants' assertion that this Court should order removal pior to voir dire clearly relies on an

outdated view ofwhen prejudice should be measured and by what standard. As the Sixth Circuit

latersummarized,"fill.]Mu'Min...andSkilling...,theCourtreplacedthepresumptionof

prejudice based on pervasive publicity and the need for extensive voir dire in such circumstances

with a constitutional rule of deference to the trial judge with regard to voir dire and change of

venre}' Jaclaon v. Houk,687 F.3d 723,733 (3d Cir.2}l2). "Based on Skitting .. . , [t]he older

standards [ofreview] articulated in the 1960's . . . no longer rqrresent the current state ofthe law

...." Id. at 733-34; see also In re Tsarnaer,780 F.3d 14 (1't Cir. Feb.27,2015) (declining to

issue a writ q{qlandamus to fo1c9_a ghanee ofvenue while the trial court was actively selecting a

jury and ciing Mu'Min ard Skilling as favoring voir dire to fust assess the impact of publicity

rather than ordering immediate removal). In short, the Defendants would have the Court

misapply the doctrine of preswned prejudice by failing to await voir dire before deciding

whether removal is appropriate. The Defendants' lengthy recitation of thee weeks of news

clippings and broadcast excerpts undoubtedly shows publicity about this case, but it does not

begin to show that Baltimore City's Circuit Court and atizenry should be equated with the

"kangaroo court" and mob mentality of 1960s Calcasieu Parish, Louisiana, or Smith County,

Texas. If a '\pave of public passion" will prevent a fair trial of the Defendants, that wave should

be measured when the Defendants' trials arrive and when yoir dire reveals whether public

opinion is actually so fixed as to guilt that an impartial panel cannot be assured. The

Defendants' request for immediate removal, thus, should be denied as inconsistent with the

modem presumptive prejudice doctrine. with this timing question resolved, next comes the

question of methodology in testing local juror prejudice when ultimately conducting voir dire.

Here again the Defendants would have the Court misapply the doctrine,s test.

C. The Doctrine's Totality of the Circumstances Balancing Test

In assessing whether to invoke a presumption ofjuror prejudice, the Supreme court has

identified several factors to guide the analysis: (1) "the size and characteristics of the community

in which the crime occurred"; (2) whether press coverage about the defendant contained a

confession or "other blatantly prejudicial information of the type readers or viewers could not

reasonably be expected to shut from sight"; (3) whether the passage of time has lessened press

attention; and (4) whether the jurors conduct during the trial ran counter to the presumption.

shlling,561 u.s. at 382-83. As the ohio supreme court recently noted, however, ,,sbilling did

not hold that these four factors are dispositive in every case or indicate that these are the only

relevant factors in a presumed-prejudice analysis." ohio v. Mammone, 13 N.E.3d 1051, 106g

(Ohio 2014). The Defendants argue that all relevant factors weigh toward rernoval, but when

each ofthese factors is fully explored, the Defendants, assertions plainly fail.

1 The size and characteristics of the community in which the crime occurred

As the Defendants note in their Memorandum, Baltimore city has an estimated

population of 622,793 people living r,rdthin the 80.94 square miles of its borders. U.S. Census

Bureau: state and county Quick Facts, Baltimore city (2014), available at

http://quickfacts.ceirsus.gov/qf<vstatest24/245lo.hunl. of the city,s residents,63.3% identifo as

black,31.6Yo as white, and the remainder as Hispanic, Asian, American Indian, or other. Id.

Regarding education, of those over the age of 25 years old, g0.2% of residents graduated high

L4

school and 26.80h have a bachelor's degree or higher. [d. Baltimore forms part of the

Baltimore-Columbia-Towson metropolitan statistical area, which contains an estimated

2,785,874 persons. U.S. Census Bureau: Annual Estimates of the Residential Population (2015),

available dt http://factfinder.census.gov/faces/tabteservices/jsflpages/producMew.xhtml?src

=bkmk. The Defendants assert that Baltimore's total population ofpersons eligible for jury duty

is 27 6,o29 persons, and they assert, without citing any authority, that this number "is central in

determining the size of a jurisdiction for the analysis of whether a presumption of prejudice

exists." Def. Merno. in Support of Mot. for Removal at 25. They then tiken Baltimore's size to

the 150,000 population of calcasieu Parish, t ouisiana, in Rideau, and conclude thrs factor

supports removal. A review of appellate opinions on this factor shows otherwise.

While the Skilling Cortrt utilized the extensive record from the trial court's removal

hearing to cite that Houston as a venue had 'tnore than 4.5 million individuals eligible for jury

duty," a fact weighing against presuming prejudice, slcilling,56l u.s. at 3g2, the court has

consistently used total population as the appropriate metric. ln Mu'Min, the court found no

reason to presume prejudice in Prince william county, virginia, which the court describing as

having "a population in 1988 of 182,537," in which the defendant,s murder charge ,\vas one of

nine murders committed in the county that year," and where the county was ,.a part of the

metopolitan Washington statistical are4 which has a population of over 3 million, and in which,

unfortunately, hundreds of murders are committed each year." Mu,Min,500 U.S. at 429.

lndeed, the court has previously noted that a city with a population in excess of 600,000

generally will not trigger the presumption ofprejudice, saying of clark county, Nevada, ,.[g]iven

the size of the community from which any potential jury venire would be drawn . . . , only the

most darnaging infomration could give rise to any likelihood of prejudice.,' Gentile v. State Bar

of Nevada,501 U.S. 1030, 1044 (1991) (cited by skilling for the proposition that there is a

"reduced likelihood of prejudice where venire was drawn from a pool over 600,000

individuals").

Other courts have held likewise. The Alabama Supreme Court held that the size of

Mobile County, with a population of 400,000 citizens, was sufficiently large that it ,,reduced the

likelihood of prejudice" wder skiiling's test. In re Luong, 2014 Ala. LEXS 39, 12-13 (Ala.

2014). Similarly, the 400,000 peopre riving in Hilsborough county, New Hampshire, were

sufficient for the state supreme court to find in a murder appeal no reason to presume prejudice

tnder skilling, holding, "given the size of the community ftom which the jury pool was drawn in

this case, it is unreasonabre to concrude that twelve impartiar jurors could not be found.,, Nerar

Hanpshire v Gribbre, 66 A.3d, rlg4, r2ol-og (N,H. 2013). Additionally, the U.S. District court

for the western District of pennsyrvania found that the Erie Division,s 545,615 total popuration

made it unlike those cases where the supreme court has presumed prejudice. u.s. v. Diehr_

Armstrong' 739 F Supp' 2d 796,793-94 (w.D pa. 2010); compare coreman v. Kemp,778 F.2d

1487 (llm cir' 1985) (prejudice presumed in a town of onry 7,059 peopre where seated jurors

knew the murder victims and where the prevairing pubric sentiment was that the whore town

thought tlre defendant was guilty).

In short, the Defendants' assertion that Bartimore,s size weighs in favor of prezuming

prejudice simpry cannot be substantiated. Baltimore,s population of more than 600,000 is

presumptively not prejudicial under Gentire and matches or exceeds the dernograpfucs of other

similar venues judicially deemed not to trigger the presumption of prejudice. Moreover, whileskilling ciled the juror pool size as a fact available from the record in that case, neither skillingnor any other case require that this factor be assessed using anything other than totar popuration.

16

This metric comports with Skilling's discussion that community characteristics, not just size, also

matter when assessing the impact of pretrial publicity. Persons eligible for jury service do not

live inside a vacuum within the greater community-they live, talk, and share ideas with people

who will never serve on a jury. Ultimately, cultural homogeneity drives concems that the views

of the many will control the views of the one, and Baltimore simply does not share the close-knit

natue that should concem the court as in Rideau. Baltimore's size and characteristics weigh

against presuming prejudice.

2, The types ofpress coyerage

The next factor that the court should consider in deciding whether to presume prejudice

involves examining the type of press coverage, particularly whether press coverage about the

defendant contained a confession or othff blatantly prejudicial information. Before analyzing

the specific instances of publicity about which the Defendants complain, this factor requires

some appellate framing to better determine what is and what is not constitutionally relevant.

Fi$t, as the lrvin court stated, "[i]t is not required . . . that the jurors be totally ignorant of the

facts and issues involved" in a case. Irvin, 366 ll.S. at 722. Moreover, "[d]istinguishing

between sfiaightforward, factual publicity about a celebrated case and inflammatory, adverse

press is crucial." Gribble,66 A.3d. at 1209-10' accord Murphy,42l U.S. at 801, n. a (,[w]e

must distinguish between mere familiarity with [the defendant] or his past and an actual

predisposition against him, just as we [must] distinguish[] largely factual publicity from that

which is invidious or inflammatory"). Likewise, as skilling noted in differentiating press

coverage "aimed at Skilling from that devoted to Enron's downfall more generally . . . , [w]hen

publicity is about the evott, rather than directed at individual defendants, this may lessen any

prejudicial impact." Skilling,561 U.S. at 384, n. 17 (intemal quotation marks removed).

t7

Prejudicial publicity "is the type that proclaims the defendant's guilt in advance of trial

and prejudices the minds of the public against the defendant to such an extent that most people

are unable to weigh the evidence objectively." Simms v. State, 49 Md. App. 515,521

(1981)(quoting U.S. v. Mandel,415 F, Supp. 1033, 1073 (D. Md. 19?6)). This factor looks for

publicity where it can be said that the defendant "has been tried and convicted in the press . . . ."

Hoffman v. Stamper, 155 Md. App. 247,286 (2004). For example, the press coverage in

Sheppard condemned the defendant as "bare-faced liad' who was "getting away with murder',

such that the public question was simply, "Why Isn't Sam Sheppard in Jail?" Sheppard, 384

U.S. at 339-342.

Publicized confessions carry the highest risk of prejudicing the jury pool. Skilling, 561

U.S. at 383 ("A jury may have more difficulty in disbelieving or forgetting a defendant's opinion

ofhis own guilt but have no difficulty in rejecting the opinions of others because they may not be

well-founded.") (citing and quoting U.S. v. Chagra,669 F.2d241,251-52,n. 11 (5d Cir. l9S2)).

The televised confession in Rideau provides the classic example of this type of prejudice. As

Sto,'//lzg described, "Rideau's drarnatically staged admission of guilt . . . was likely indelibly in

the mind of anyone who watched it;' Skilling,561 U.S. at 382-83. To that end, courts should

consider the manner of publication of any confession and the time proximate to the trial when

any confession is publicized. Mammone,l3 N.E.3d at 1069.

On the other hand, basic information about the facts that will'be presented in evidence at

trial causes little risk of prejudice. As the Maryland Court of Appeals noted, ,,[i]f a mere

disclosure of the general nature of the evidence relied on would vitiate a subsequent trial, few

verdicts could stand;' Baltimore Radio Show v. State, 193 Md. 300, 331 (1949). Furthemrore,

"prejudice . . . can neither be shown nor fairly and reasonably be assumed to have existed [about]

facts which the public had leamed of [but which] were presented as evidence at the trial."

Grammer v. State,203 Md. 200, 209 (1953). Similarly, no prejudice stems from announcing

"[t]he mere fact of an arrest or indictrnent . . . ;' Baltimore Radio Show, 193 Md. at 331.

Indeed, "[a] mere charge by the State's Attomey or an iadictrnent by the Grand Jury clearly and

obviously implies that the police believe the accused to be guilty, and yet the announcernent of

such a charge or indictment is not only proper but necessary." Grammer,203 Md. at2l0-Il.

Viewed through this appropriate judicial lens, the Defendants' protestations fall far short

of identifoing the type of publicity that triggers a presumption of juror prejudice. As the

Defendants correctly note, following Mr. Gray's death, the city experiurced well-publicized

protests and riots in which a curfew was imposed on night-time activities and in which dozens of

police officers were injured. The Defendants describe in detail the extensive press coverage

about the fires, looting, and economic impact from these riots. Most of this media attention,

however, focuses on the event, not the Defendants. The Defendants complain loudly that th-e

publiC annoGcement of cRarges a@r-nst thern on May 1, zol5, included a full reading of the

statement of probable cause, yet the Defendants concede that the information shared during this

reading constituted public record. Def. Memo. in support of Mot. for Removal at 5 1 . Moreover,

as just discussed, such an announcement is perfectly proper under Grammer. The Defendants

decry the prosecution's pledge to "deliver justice" for Mr. Gray, but the state's Attomey's

annonnc€ment of charges in any cirrtrnal case makes the same pledge, only less concisely.

Focusing on the Mayor, the Defendants denounce Mayor Rawlings-Blake's statement on

May 1, 2075, that she was "sickened" and ,.heartbroken', after hearing the charges, and they

attribute to her that "she told the Police Commissioner to immediately suspend without pay all of

the officers involved." Def. Memo. in support of Mot. for Removal at42. Tlte Mayor's actual

statement, however, only called for the suspension without pay of those officers charged with

felonies. Michael Dresser, Mayor says she is 'sickened, heartbroken'by alleged conduct of

oficers in Freddie Gray case, Baltjmore Sun, May 1, zol5, ernbedded video available at

http://www.baltimoresun.com./news/maryland/baltimore-city/bs-md-ci-freddie-gray-srb-reaction-

0502-20150501-story.hftnl. This call camot possibly create prejudice since it merely restates the

authority codified in the Public safety Article, Section 3-112 (2014), which permits the

Commissioner to take such action.

Regarding the Police commissioner's and Deputy commissioner's public statements, the

Defendants claim they have been prejudiced by their statements about the Defendants' alleged

interaction with Freddie Gray that "we know he was not buckled in the transportation vehicle as

he should have been, no excuses for that period . . . , [and] we know our police employees failed

to get him medical attention in a timely manner multiple times." Def. Memo. in support of Mot.

for Removal at 42. These statements do no more than repeat the same information that was later

presented in the staternent of probable cause and for which evidence will be presented at hial.

Agarn, no prejudice can ensue under these circumstances. Moreover, the April 24,2015, police

press conference, at which these staternents were made, consists merely of a factual,

dispassionate update of information gathered during the ongoing investigation. Baltimore police

Press conference, April 24, 2015, availnble a/ https://www.youtube.com/watchh-

4vluexPdTEk&index:19&list=PLAwGIPXSqcDWUps5wfltJ05lEkMGxErAbX. Likewise,

the Defendants accuse that at his May 2, 2015, press conference, the commissioner ,,emphasized

'police misconduct,' specifically relathg to the officers in this case.,' Def. Merno. in support of

Mot. for Removal at 44. Agan, an actual review of what the Commissioner said reveals that a

reporter asked him a general question whether he thought so-called ,.rough rides" were a problem

in the Department, to which the commissioner simply stated, "we have no tolerance for any

misconduct that takes place in this orgxizalion" aad then expressly declined to comment on the

specific charges brought against the Defendants. Baltimore Police press conference, May 2,

2015, available a/ https://www.youtube.com/watch?v:mxeEOeH5HC0&lisr:plAwGlpXSqc

DWUPs5Wf4JO5lEk MGxETAbX&index=5.

The Defendants also devote pages of their Memorandum reciting what they claim are

prejudicial statements made by local elected offrcials. They quote numerous statements by State

Senators and Delegates and city council members. Def. Merro. in support of Mot. for Removal

at 44-48. Not one ofthese statements, however, accuses the Defendaats ofbeing guilty or seeks

to inflame public sentiment against the Defendants. Indeed, most of the statements are merely

expressions about the general need to reform community-police relations or about the desire for

answers to how Mr. Gray died. Again, these types of statements do not contribute to the type of

publicity that creates constitutional concerns and largely fall into the category of coverage about

the events related to the case.

The Defendants also broadly express their belief that the press coverage has created in

Baltimore a "City-unique source of continuing local resentnent" against them. On the contrarv.

the press coverage has been, at worst, balanced. ifnot sympathetic to the Defendants. while the

Defendants have afiached to their Motion an appCndix 6f vanous piess excerpts alni-ost entirely

pulled from the period prior to the second week in Ma% 2015, to demonstrate their claim that the

public is poisoned against them, the state has likewise collected the attached appendix of

examples of publicity showing just the opposite-factual reporting and even publiciry attacking

the State aad expressing skepticism about the validity of the charges against the officers. see

State's Appendix. The State chronicles this publicity further in Section II of this Response

2L

below, but as a poignant examplg the Baltimore Sun published an online poll on its website that

it has conducted of its readers asking, "do you believe the Baltimore prosecutors have the

evidence to support the harshest charges against the officers who interacted with Freddie Gray?"

The published results as of June 17, 2015, were 8.5% for yes, a whopping 90.2% for no, and

1.3%6 were not sure. Sae State's Appendix. Can the Defendants seriously argue that pretrial

publicity has created a wave ofpublic sentiment that they are guilty in the face ofsuch a poll?

Assessing the overall picture of media coverage under this secnnd. Skilling factor, tht

Court can only conclude that the publicity has been typical of any significant case in its

immediate aftermath. Much of the coverage has focused on events related to the case, not the

case itself. The press attention and offrcial staterlenlts a-borrt tlre actual charges have rernained

largely factuaT-and informative. very far from trying and convictrhgfthe Defencl-arts il the press:

Indeed, the State has even file for a protective order to limit the release of information to avoid

just that. Moreover, any statements that the Defendants may have given have not been made

public. Additionally, the Defendants have over-emphasized and, in some instances,

misrepresented public comments by officials like the Mayor and Commissioner. The Defendants

complaints about the State's Attomey's public announcement of the charges are bark without the

bite given that the information shared was public record and authorized by the Court ofAppeals

as an appropriate act by the elected prosecutor. Given that the whole analytic purpose of this

factor is to determine whether Baltimore's public mood is akin to that of the cases where

prejudice has been presumed, the Defendants clearly have not met their burden to believably

compare Baltimore to the venues in Rideau, Estes, or Sheppard.

22

3. Whether the passage of timg has lessened press attentiotr

Intertwined with the nature of the press coverage, Sbilling diecls that any invocation of

the presumption ofprejudice doctrine also assess the extent to which press coverage has lessened

with the passage of time. This factor derives from basic human nature. "That time soothes and

erases is a perfectly natural phenomenon, familiar to all.,, yount,467 U.S. at 1034. The

Defendants' Mernorandum gives short shrift to this factor for the obvious reason that it cannot

accurately be assessed until the trials themselves come nearer. Currently, the Defendants, trials

are scheduled to begin on october 13,2015. Given that the state will not be tryine all of the

Defendants jointlv. some of the Defendants wii find their trial dafes pushed-evenlater. In short, -the Defendants can only sD-eefrlate about the exteniand tone of any press coverage in the months

or years that will unfold before these mafters are resolved. This uncertainty also underscores the

Supreme Court's modern preference for awaiting voir dire before reaching conclusions about the

pervasiveness of public prejudice.

4. Whether the jurors conduct during the trial ran counter to the presumption

The fourth and final Skilling factor involves a post-hoc assessment of whether the jurors'

actual conduct ran contrary to the presumption of prejudice. As sk)lting logically noted, ,,[i]t

would be odd for an appel'late court to presume prejudice in a case in which jurors, actions ran

counter to the presumption," highlighting, for example, that "skilling's jury acquitted him of

nine insider-Eading counts." skilling,561 u.s. at 383. The Defendants completely igrrore this

factor in their Memorandum. While it may have less relevance for a trial court considering a

motion to remove before trial, under the circumstances of these cases, however, this factor may

eventually shed some light on whether a presumption of prejudice is warranted. As noted, the

State does not intend to try all of the Defendants jointly. As to the Defendants whose trials come

after the first trial, the Court may be able to incorporate this factor into its analysis of their cases

based on the jury's verdicts. To presume prqudice in all six cases without the benefit of this

information would be premature and out of sync with the more modern application of the

presumptive prejudi ce doctrine.

Concluding this assessment of Sbilling's suggested four-factor-totality test, all four

metrics mitigate against presuming at this stage that Baltimore's jurors are prejudiced against the

Defendants. Baltimore is a large, diverse city. The events following Mr. Gray's death

unquestionably stirred public debate and media attention, as lrvin notes will naturally happen,

but that debate remains far from conclusively settled against the Defendants. Further, the

media's attention has been largely neutral as to the Defendants' culpability. Circumstances and

press coverage will continue to evolve as the Defendants' triais draw nearer, but the Defendants

have offered no crystal ball to prove the future conditions that form the relevant inquiry under

Skilling. The Defendants' request for immediate removal under their first argument should be

denied, and this Court should defer any decision about removal until such time as Baltimore's

citizens report for jury duty in these cases and candidly report their sentiment to the court.

II. Removal under Maryland's Constitution and Implementing RuIe

A. The Framework and Fundamentals of Removal

The Defendaats also present a second mgument that this Court should remove their cases

from Baltimore city prior to voir dire, relying this time on Maryland's specific constitutional

and procedural provisions for removal. Reviewing these provisions and their appellate

24

implementation demonstrates that the Defendants conflate knowledge of a case with bias against

the parties to the case. They misconceive what Maryland law means by an "impartial" juror.

Moreover, they fail to meet their burden to prove that voir dire will not adequately safeguard

their right to a fair rial.

Tuming to the removal provisions thernselves, Article IV, Section 8 of Maryland,s

constitution enshdnes a party's right to remove a case from its natural venue upon proving

proper justification:

Section 8. Removal of causes

(a) The parties to any cause may submit the cause to the court for determinationwithout the aid of a jury.

(b) In all cases of presentrnents or indictments for offenses that are punishable bydeath, on suggestion in writing under oath of either of the parties to theproceedings that the party cannot have a fair and impartial trial in the court inwhich the proceedings may be pending, the court shall order and direct the recordof proceedings in the presentrnent or indichnent to be transmitted to some othercourt having jurisdiction in such case for trial.

(c) In all other cases of presentment or indictment, and in all suits or actions atlaw or issues from the orphans' court pending in any of the courts of law in thisstate which have jurisdiction over the cause or case, in addition to the suggestionin *riting of either of the parties to the cause or case that the party "*oihur" ufair and impartial kial in the court in which the cause or case may be pending, itshall be necessary for the party making the suggestion to make it sajtisfact#lyappear to the court that the suggestion is true, or that there is reasonable grounifor the same; and thereupon the court shal order and direct the record

-of the

proceedings in the cause or case to be transmitted to some other court, havingjurisdiction in the cause or case, for trial. The right of removal also shall exist oisuggestion in a cause or -case in which a the judges of the court may bedisqualified under the provisions of this constitution to sit. The court to whicl therecord of proceedings in such suit or action, issue, presentrnent or indictrnent istransmitted, shall hear and detennine that cause or case in the same manner as if itlad been originally instituted in that court. The General Assernbly shall modifuthe existing law as may be necessary to regulate and give force to this provision. '

Md. const. art' rv' $ 8 Qo14). Two slightly different procedural rules imprement this

constitutional provision. For civil cases, Rule 2-505 provides in relevant part:

25

Prejudice. In any action that is subj ect to removal, and on issues Iiom theOrphans' Court, any party may file a motion for removal accompanied by anaffidavit alleging that the party cannot receive a fair and impartial trial in thecounty in which the action is pending. If the court finds that there is reasonableground to believe that the allegation is correct, it shall order that the action berernoved for trial to a court of another county. Any party, including a party whohas obtained removal, may obtain firther removal pursuant to this Rule.

Rule 2-505(a)(1) (2015). In criminal cases, Rule4-254 sets forth, as relevant here:

Non-capital cases. When a defendant is not eligible for the death penalty andeither party files a suggestion under oath that the party cannot have a fair andimpartial trial in the court in which the action is pending, the court shall order thatthe action be transferred for trial to another court having jurisdiction only if thecourt is satisfied that the suggestion is true or that there is reasonable ground forit. The Circuit Administrative Judge of the court ordering removal shall designatethe county to which the case is to be removed. A party who has obtained oneremoval may obtain firrther removal pursuant to this section.

Rule 4-254(b)(1) (2015). The Defendants have each filed swom suggestions that they cannot

have a fair and impartial trial and averred that this suggestion is true or, alternatively, that there

is reasonable ground for the suggestion. They each further aver thatthe voir direprocess will be

inadequate to ensure their right to a fair and impartial trial. While the Defendants have

procedurally complied with Maryland's removal provisions, substantively their suggestions for

removal and the supporting evidence they present fali well short of the burden required to higger

mandatory, pre-voir dire removal.

Before reviewing the appellate application of this rernoval scherne and comparing the

Defendants' cases to those reported sifuations in which removal was or was not found to be

appropriate, the remaining fundamental definition that frames any removal request involves what

precisely our constitution means by a fair and impartial trial, particularly in cases that have

gamered considerable public attention. chief Justice Alvey, speaking for the court of Appeals

in 1889, articulated one of the best and most often quoted descriptions ofthis basic guarantee:

26

All persons accused of crime are entitled, as matter of right, to be tried by a fairand impartial jury, selected according to law. About this there can be no question.But the question is constantly presented in practice, by what standard or test is thecondition of the mind to be hied, in order to obtain with reasonable certainty, therequisite degree of faimess and impartiality in those called upon to serve asjurors? In this age of intelligence and universal readin& with newspapers in thehands of every man with sufficient intelligence to qualifu him to sit upon a jury,to require that jurors shall come to the investigation of crime committed in theircommunity, no matter how notorious or atrocious it may be, with minds whollyunaffected or unimpressed by what they may have read or heard in regard to it, issimply to maintain a rule or standard by which every man who is fit to sit upon ajury may be excluded. Many crimes are committed under circumstances of suchflagrant atrociousness as to impress and shock the whole community, the igrorantas well as the intelligent; and if such rule of exclusion were applied, it would, inmany cases, render the impanelling a jury impossible. Such state of things couldnever be contemplated by the law. All men, by natural instinct, are supposed to bemore or less biased against crime in the abstract; and every member of thecommunitS against which crime has been committed, is naturally interested andimpressed with the circumstances of crimes of atrocious character. But thisnatural bias, however atrocious the crime, can never be regarded as a sufficientcause for the disqualification of the juror, The intellectual, as well as the moralimpressions, produced by the readhg or hearing of reports or statements of factsin regard to the commission of crime are such that intelligent minds cannot resist;indeed, in many cases the mind receives the impressions from such statementsintuitively. But these impressions, with intelligent, fair minded men, are always ofa hypothetical nature, resting upon the supposition of the truth ofwhat they haveread or heard. The minds of such men always remain open to the correction offormer impressions, and remain entirely impartial, with power to hear anddetermine upon the real facts of the case, without the least bias in favor of formerimpressions, whatever they may have been. And therefore, in our present state ofsociety, all that can be required of a juror, to render him competent, is, that heshall be without bias or prejudice for or against the accused, and that his mind isfree to hear and impartially consider the evidence, and to render a verdict thereonwithout regard to any forrner opinion or impression existing in his mind, formedupon rumor or newspaper reports. whenever it is shown that such is the state ofmind of the juror, he should be held to be competent; and such is tle rule as laiddown by this Court in the case of Waters vs. Ihe State,5l Md. 430. ln that case itwas said 'that the opinion which should exclude a juror must be a fixed anddeliberate one, partaking in fact of the nature ofa pre-judgrnent.'

Garlia v. state,71Md,. 293,299-300 (1ggg); accord e.g. calhoun v. state,2g7 Md. 563, 5g0-g l

(1983) (quoting Garlitz wtth approval); williams v. state, 394 Md. 99, 109 (2006) (quoting

Garlitz with approval); Brtdges v state, 116 Md. App. 113, t2o-21 (1997) (quoting Garlitz udefining what constitutes impartial jurors).

27

B. Maryland's Appellate Decisions Regarding Removal Based on publicity

Marylald's appellate courts have decided numerous challenges to trial court decisions

regarding removal based on publicity. These decisions provide both principle and perspective in

ruling upon a party's removal suggestion. la one of the earliest cases construing publicity-based

removal under the current constitutional standard, the court of Appeals jn Downs v. state, TllMd. 241 (1909), found no abuse of discretion in a Baltimore city judge's decision to deny

removal. Ia the case, william Downs had been charged with larceny of city money and urged

that he could not receive a fair trial in the City because an "intense prejudice and bitter feeling

prevailing against him throughout the city of Baltimore." Id. at 242. Downs cited as support

that newspaper articles 'tnqualifiedly and repeatedly represented that this defendant is guilty of

said charge [and stated] that he has agreed to confess his guilt, and that Honorable Albert S. J.

owens, state's Attomey for Baltimore city, in interviews said that he will convict Downs.,, ./d.

The court agreed that the articles "do show that great publicity was given to the appellant,s

supposed connection with the larceny of the city's mone/, but concluded that ..it does not

neccssarily follow that by reason thereof there existed such a prejudice against the accused as to

render it impossible for him to secure a fair and impartial trial in Baltimore city.- Id. at 250.

Significantly, the Court stated that "[c]rimes of the nature of the one with which the appellant is

charged naturally give rise to much newspaper and other comment, but such comment does not

always arouse such a general prejudice against the accused as to render it impossible for him to

secure a fair trial in the county or city where the crime is committed . . . .- Id. ,Newspaper

articles denunciatory ofthe accused are not in themselves sufficient to evidence the existence of

such prejudice as will justifu a change." Id. at 250-51. Instead, ,,[f]acts must be shown from

28

which the Court can deduce the conclusion that the ground relied on for the change actually

exists; and as a rule, mere belief, opinions, or conclusions will not be sufEcient . . . ." Id. at251.

Three painful examples where the Court found ample facts suppofling the impossibility

of a fair kial at the location of the crime came from the Eastem Shore in cases where actual

lynch mobs attempted to remove defendants from state custody and kill them during or before

the trial. In Fountain v. State, 135 Md. 77 , 78 (1919), an armed mob of two thousand people

gathered outside the Talbot County courthouse after the first day of trial and attempted to lynch

the defendant as he was being led to the jailhouse. When the defendant fled from custody to

avoid harm, the judge informed the jury that the defendant had escaped, announced a $5000

reward for his capture, and had the sheriff deputize members of the audience, including the

defendant's own attomey, to aid in the search efforts. 1d. at 78-80. When the defendant was

apprehended and the trial resumed, armed Militia had to form a picket line to escort the jury and

the defendant through the mob and into the courthoue. Id. at 82. On these facts, the Court

presumed that the jury was prejudiced against the defendant despite no affirmative showing,

concluding that the public sentiment displayed so violently during the trial was such that "any

jury of ordinary human sensibilities would have been practically certain to have been affected

prejudicially to the accused." Id. at 86.

Similarly shocking facts occured ln Lee v. State, 161 Md. 430, 436-3'7 (1931), in which a

lynch mob attacked the defendant and his attomey in both the original venue in Worchester

County and a second venue in Dorchester County. The defendant presented evidence that

similar events had recently happened in Kent and Wicomico Counties in different cases and

asked for removal from the entire Eastern Shore, but the trial court nevertheless denied further

removal. Id. at 436-39. The defendant asked for an interlocutory appeal, aad although the Court

of Appeals held that a removal decision could not be appealed until after conviction, the Court

nevertheless decided to "express an opinion on the questions sought to be reviewed" and stemly

wamed the trial court that the facts of the case '1,vould leave no latitude for discretion', to do

anything other than remove the case to "one shore of the bay or the other where it appears at

least much more likely that the local prejudice may be avoided.,' Id. at 434-42.

citing this decision in Lee, the court of Appeals inJones v. state,1g5 Md. 4gl (1946),

reversed two teenage brothers' murder convictions in Wicomico County after the trial court

refused a motion for removal. The Court described that "mobs of armed men formed to track

down and capture the defendants," that these mobs had attacked the defendants' family members

and had broken into and ransacked their home, yet despite changes of venue from Somerset to

Dorchester county and then again from Dorchester to wicomico county, the third venue was

still "subject to more local prejudice against the defendants due to staternents printed in local and

state-wide newspapers alleging confessions and admissions of guilt had been secured from the

defendants." Id. at 484. The court held that these facts ,.cast a grave doubt upon the question of

whether the accused could have obtained a fair trial before a jury in wicomico county," and, as

such, the trial court abused its discretion in not granting a further venue change. Id. al4g6-g7 .

By stark contrast to these startling facts, in Newton v. state, 147 Md. 71, '74-76 (1924),

Emory Newton appealed a denied rernoval founded on his suggestion that because he was the

third of separately tried co-defendant conspirators to stand trial in Baltimore City, the first two

having been found guilty with their convictions 'lublished in the daily papers of Baltimore

city," he felt he could not receive a fair jury trial. Newton presented no other evidence of

prejudice except "such inference as might be drawn from [the] fact" that his co-conspirators had

been Eied and convicted in the same venue. Id. at 76. Rather than presume such prejudice, the

Court declared that it would not merely assume "that either judges orjurors will be influenced by

considemtions which under their official oaths they are bound to disregard." Id. al 77. T\e

Court exarnined the voir dire to "illustrate the danger of arbitrarily approving such a proposition

as that embodied in the defendant's contention," noting that "every juror on the panel expressly

denied that he would be influenced in rendering his verdict" by the fact that the co-defendants

had been convicted previously. 1d. The Court found no abuse of discretion. 1d.

Likewise, ln Wanzer v. Stdte, 202 Md. 601, 605 (1953), involving convictions for

gambling and liquor violations in Howard County, the Court found no abuse of discretion in the

trial court's denial of a removal motion based on allegedly "inflammatory and prejudicial" news

coverage printed in the local paper. The coverage consisted of a factual newspaper article

printed five weeks before trial in which the paper published a detailed account of the police raid

that led to the defendant's arrest and printed the defendant's nzrme, age, and town of residence.

Id. at 605-06. The Court described the article on review as "a factual disclosure" from which

"[i]t is difficult to perceive how, wit]rout complete suppression of news, an account like the one

in question could be made the basis of mmpl airt;' Id. at 606-07 .

In a case drawing hemendously more press @verage, the Court again found no denial of

a fair trial due to publicity when it considerd Grammer v. State,203 Md. 200 (1953). George

Grammer had been sentenc€d to hang after being convicted in Baltimore City for murdering his

wife in what the press called the "near perfect crime." Id. at 204-07 . The evidence indicated that

Grammer, who was having an affair, had beaten his wife with a pipe and then tried to conceal the

crime by elaborately staging a car accident on Taylor Avenue near the City-Counp border . Id . at

206-07. When Grammer was charged in the City, Mr. Anselm Sodaro, the State's Attomey for

Baltimore City, issued a written statement tlat read: "After an investigation in connection with

31

the death of Dorothy May Grammer, and intenogation of a number of witnesses, including

George Edward Grammer, Mr. Grammer will be charged with the killing of his wife . . . ." Id. at

207. On the evening that this statement was issued, the State's Attomey, along with two

Assistant State's Attomeys ftom Baltimore County, and two Baltimore County policemen,

appeared on a local television broadcast in which the announcer informed the public that

Grammer had been charged with murder and, with the carnera on the State's Attomey, stated,

'\re'd like you to meet this team which has been responsible for bringing a conclusion to this

case, that is, conclusion before pre-trial . . . ," then, perhaps realizing his error, going on to wam

against prejudgn erlJ". Id. at 208. A few days after this, the newspapers announced that the Chief

Medical Examiner of Baltimore would "explain on television step-by-step the facts which led to

his conclusion that Dorothy May Grammer's death was homicide," with the progam entitled,

"Death and the Law." Id. Wirh the State's Attorney's approval, the Examiner did this show,

which aired before the defendant's hial, though he did not use Grammer's name. Id. at 209.

Moreover, during the broadcast, the Examiner displayed a staged photograph of the way

Grammer was thought to have faked the car accident (a rock under the accelerator) but never

informed the audience that the photograph was staged. Id.

Reviewing this record, the Court found no prejudice could flow from any of the

disclosures that were later "presented as evidence at the trial." Id. While the Court criticized the

Medical Examiner's television progftm and likewise the State's Attorney for the television

appearance and announcernent that Grammer had given a statement, the Court refused to find

error without more. Id. at 210. The Court reiterated that "[i]t is not to be presumed that an

unbiased jury cannot be had" merely on "an unsupported conclusion that he could not have a fair

and impartial jury trial," even where there was '\ride public knowledge of the crime and its

32

details." Id. at 211. Rebuffing the defendant's complaint that he only elected a court trial

because of his feeling that a jury would be prejudiced, the Court stressed that the defendant

"could have examined prospective jurors on their voir dire to ascertain whether twelve citizens

were available who would affirm under oath that they would be guided only by the testimony

produced at the trial." Id. at 211. The defendant could not complain that he never attempted

voir dire, and the Court found no unfaimess on this record. Id.

Two years later, the Covt it Piracci v. State,207 Md. 499 (1955), considered a denied

rernoval motion from one of several cases involving a public funds fraud scandal in the

construction of the Rivoli rheater in Baltimore city. The scandal and the Grand Jury's

investigation that led to Piracci's indictment "had been extensively publicized, almost daily over

a period of nine months, with comments suggestive, if not accusative, of improper or unlawful

dealings . . . ." Id. at 507. The day before Piracci stood trial, two ofhis co-defendants had been

found guilty in the same venue, and the judge had given an "oral opinion reviewing the evidence

in some detail and determining that these [co-]defondants had conspired to defraud the city.', Id.

When the defendant requested (emoval, the court denied the motion. On review, the Court stated

that none of the news clippings about the case contained "conclusive evidence of the existence of

such an intense public prejudice against the accused" as would warrant removal . Id. at 5ll.

While the Court agreed that "the publicity indicated a continuing public interest" in the crimes

charged, a review of the voir dire trmscipt found that "each juror who served was closely

questioned . . . conceming the publicity given the case and declared that it would not affect his

verdict . . . ." Id. at 512.

With this emphasis on voir dire as the best measure of prejudice, the Court reached the

opposite conclusion two years later under the unusual facts of Basiliko v. state,212 Md. 24g

(1957). Basiliko had been charged as a conspirator in a scandal that involved using straw

purchases to artificially furflate prices for land tracts that through insider information were known

to be earmarked for future purchase by the State Roads Commission. Id. at 257-52. Dvng

Basiliko's jury trial in the Circuit Court for Montgomery County, the Chief Judge of that

Court-Judge Stedman Prescott-filed a civil lawsuit against Basiliko and his co-conspirators

alleging fraud on one of tle land sales that the judge and his wife had been involved in. Id. at

252-53. Given that the case had already attracted considerable publicity, all three newspapers

that served the county ran the lawsuit story in detail under bold headlines, saying "Judge says he

was glpped by Md. road deal defendant," "Judge Prescott charges fraud in road s.ite deal,,,and

"Prescott sues in road scandal says he sold land at fraction of value." Id. at 253-258. All three

articles identified the defendant as being then on trial in Circuit Court, and a local radio and

television stations likewise broadcast the sto w. Id. al259.

After these stories ran, the defendant moved for a mistrial on the basis that publicity had

prejudiced the jury, and he presented evidence that many of the seated jurors subscribed to the

papers that published the lawzuit story. Id. at 259-60. when the judge refused the mistrial and

the defendant was convicted, on appeal the court found ,ho exact parallel to the present case

among the prior decisions" but found the rules from removal cases applicable by analogy. Id. at

260. ln reversing the Court stated that while "it was not shown that any individual juror had

actually read or heard any of the news articles or broadcasts about the equity suit . . . we caonot

divest ourselves of the flrm belief that the effect of the publicity relating to the equity suit would

have been srongly and definitely prejudicial" to the defendant. Id. at 263-64. The court

grounded this holding in the flact that'the civil suit, both as filed and as truthfully reported, could

have left no doubt in anyone's miad that the well-known, highly respected, competent, and

experienced judicial ofEcer who was one ofthe plaintiffs in the civil suit believed Basiliko guilty

of the conduct of the very kind with which he was charged in the criminal case)' Id. at264. T\e

Court concluded that only a mistrial would have cured the prejudice since mid-trial voir dire

would only have risked fluther dam age. Id. at 265.

In another instructive case, Gray v. Stdte,224 Md.308 (1961), the Court of Appeals

upheld Gray's conviction despite a denied rernoval motion made on the basis of allegedly

prejudicial publicity. The case involved a third re-trial for armed robbery in Allegany County in

which, on the trial date, the defendant was accidentally permitted to plead guilty to a charge that

the jury in his second trial had acquitted him of. Id. at 310-11. when the trial judge had the plea

withdrawn, the case was postponed after the defendant fell ill. Id. at 311-15. The next day, the

two local Cumberland newspapers ran a detailed story about the guilty plea mishap, about the

case's long appellate history, and about Gray's poor health, noting that Gray had to undergo

surgery and had lost 70 pounds since his original convicti on. Id. at 312-15. When Gray retumed

for trial three weeks later, he requested removal, citing the newspaper articles as proof of

prejudice. After this motion was denied and Gray again convicted, the Court of Appeals found

no abuse ofdiscretion. Id. at315-16.

As the Court described, "[our cases] hold that newspaper disclosures standing alone and

without an affirmative showing of prejudice do not support a traverser's contention that such

disclosures deny him a fair trial." Id. at376. h finding no prejudice from the articles, the court

noted that the "articles appear to be factual disclosures and are devoid of any showing ofpublic

indipation or prejudice in the case," noting, in fact, that had any of the jurors read the articles,

they "might have elicited sy.rnpathy for the accused and thereby benefited him.,' Id. at 316; see

also Seidman v. State,230 Md. 305, 323-25 (1962) (in a Baltimore City conspiracy trial, no

abuse of discretion in denying removal motion where pre-trial voir dire of jurors showed that

none had formed an opinion about guilt based on newspaper publicity, repeating the rule that

"the accused must make an afErmative showing that he has been prejudiced by the newspaper

reports and that the accused was not in a position to rely upon the voir dire examination for

protection against a prejudiced juror").

Along a similar vein, the Court of Special Appeals considered the denial ofa prejudicial-

publicity removal request brought by a Prince George's County police officer convicted of

accepting abibe in Kable v. State, 17 Md. App. 16 (19'73). The officer alleged prejudice from

two articles 'in the local paper that, as the Court charucteized, "factually and dispassionately

described the proceedings which had been instituted against" him and a thfud article that

discussed the fact that the "County Council was going to investigate bribery but did not mention

tle case pending against" the officer. Id. at 28-29. In affirming the conviction, the Court

articulated the "general rule conceming prejudicial publicity . . . is the burden is upon the party

alleging prejudice to show: (l) that the newspaper article is prejudicial, (2) that a juror has read

the prejudicial newspaper article, and (3) that the jurors' decision at the trial was influenced by

that newspaper article." Id. at 29 (intemal quotation marks and citations removed). The Court

found that the officer had shown none of these conditions and reit€rated that unless "publicity is

massive, wide-spread, and clearly prejudioial [citing as an example Sheppard v. Maxwelt] . . . ,

the trial court does not abuse its discretion when it relies on a careful voir dire examination to

ascertain whether community prejudice has influenced any mernbers of the jury parrcl." Id. al

30.

Six years later, the Court of Special Appeals decided another removal case, Worthen v.

State,42 Md. App. 20,21-23 (1979), stemming from a St. Mary's County child abuse and

assault case where the defendant claimed injuries he inflicted on his stepchild were accidentally

excessive corporal punishmen! not criminal assault. Prior to trial in the small rural community

where Worthen lived, The Enterprise newspaper, "Southem Maryland's Leading Weekly Sfurce

1883," published a series of articles graphically detailing the injuries to the child and discussing

"various, often emotional, aspects of the crime of child abuse and the ways it should be

handled." Id. at 24-25. Though Worthen's name was not used, "[t]he facts indicated it could

have been none other than this case . . . ." Id. a124. One article quoted a county coordinator as

explaining "the average public response to a child abuse," saying, "[m]ost people's reaction is to

want to put them h jall." Id. at 25. When the defendant requested removal, even the prosecutor

joined the request, explaining to the court that the articles had published eroneous and even

inadmissible evidence about the case and had painted a picture of the defendant as someone with

psychological problems. Id. at27-28. Unpersuaded, the trial judge felt confident that yoir dire

could filter any bias and opined that the articles did nothiag to inflame public opinion against

Worthen, saying they merely expressed a normal reaction to child abuse. Id. at 28. During that

voir dire, after strites for cause, 9 out of 19 of the remaining prospective jurors admitted to

having read the Enterprise articles but "assured the court that this fact would not prevent them

from reaching a fair and impartial verdict based on the evidence in this case." Id. at 30. One

juror, when asked whether he "disapprove[d] of physical discipline in the rearing of chil&en,"

equivocated, and when pressed as to whether this view would prevent him from being fair, said

only, "I would like to think not" and "l think not." Id. T\e court refused to strike this juror and

refused a renewed removal motion. Id. at 30-31.

After Worthen was convicted, in reviewing this denied change of venue, the Court

concluded, "the judge may not have abused his discretion if viewed in isolation, despite the fact

37

that the State not only failed to contradict the suggestion that appellant could not have a fair and

impartial trial but even acquiesced in that suggestion and urged removal." Id. ar 44. The court

ultimately found reversible error, not in the denied removal motion, but in the trial court's later

refusal to grant a continuance after the State produced a surprise witness who was also

erroneously permitted to testiry to irrelevant prior acts of abuse that Worthen committed.

Indeed, the court agreed that "the suggestion ofpublic prejudice may be overcome by cleansing

voir dire indica$ng that the jurors' states ofmind are without bias or prejudice." Id.at45.

Two years later, the cou( of Special Appeals upheld another denied publicity-based

removal motion fur simms v. stdte,49 Md. App. 515 (1981). ln this wicomico county appeal,

Simms was charged with murdering his eshanged wife, and the Salisbury local media covered

the case with a total of six newspaper articles, as well as radio and television coverage, for a

period of five weeks, ending approximately two months before trial commenced.. Id. at 516-517.

The judge denied a removal motion with leave to renew at voir dire, which ultimately revealed

that "all of the prospective jurors, exc€pt two, had read, se€n, or heard some form of pretrial

publicity conceming the case." ]d. at 517. of those jurors actually seated, 10 out of 12 ..had

been exposed to publicity regarding the case from either the newspaper, radio, television, or by

word of mouth, but all stated the publicity would not prevent them from giving [simms] a fair

frtal." Id. Simms renewed his removal motion, but the court denied i! with Simms later being

found guilty of murder. Id. at517-518.

In finding no abuse of discretion in refusing to grant a new venue, the Court ernphasized

the rule that "[i]t is not to be presumed . . . that an unbiased jury cannot be had," and ..[o]nly

where the pretrial publicity in and of itself is so massive and widespread that it is clearly

prejudicial or where the publicity is so inherently prejudicial that it saturated the community is

the remedial step of voir dire mexitgless." 1d. at 518. The Court cited as examples of this

latter sitr.ration the infamous Suprerne Court cases of lrvin, Rideau, Estes, and Sheppard ld.

Again, the court stressed that the moving party "carries a heavy burden of satisfuing the court

that there is so great a prejudice against him that he camot obtain a fair and impartial trial,"

repeating that "[v]olr dire exaninalion is usually a sufficient mechanism to insure that a

defendant obtains a fair and impartial trial despite the pretrial publicity." Id. at 518-19. The

Court concluded that "even though most of the jurors had been exposed to some pretrial

publicity, prospective jurors are not required to be totally ignorant of the issues and

circumstances surrounding the case." Id. at 520 see also Eyans v. state,304 }rld. 487, 511'12

(1985) (finding no abuse of discretion in denying a motion to remove even after voir dire

resulted in 50 out of 130 prospective jurors acknowledging "having heard or read something

about the case" and 20 ofthose 50 being removed because of exposure to pretrial pttblicily); and

see Hofman v. Stamper, 155 Md. 247,287 (200a) (applyrn g de novo review but affirming a

denied removal motion, holding "ftfhe voir dire process, not rernoval, serves the function of

eliminating from the venire pool potential jurors who carry with them general prejudices,

including prejudices that are the product of media @verage about crime and about civil

wrongdoing in general).

No review of Maryland's rernoval cases can overlook Montgomery county's widely

publicized .,D.c. Sniper" trial and subsequent apped. it Muhammad v. state, 177 Md. App. 188

(2007). Although the Court ruled that Mohammad had to failed preserve his removal argurnent,

Judge Moylan, in dict4 suggested that some cases attract such widespread, national attention that

removal makes no difference:

39

Muhammad also conveniently ignores the fact that the massive press, television,and radio coverage of the crime spree and its aftermath was nationwide. Thatincludes all parts of Maryland, and, had a removal been granted, it would have tohave been to some place in Maryland. Ironically, Muhammad's argument refers to"the numerous articles from the Washington Post and Baltimore Sun." Aftereliminating those areas covered by the Post and the Sun, what part of Maryland isleft? [. . . ] Even if, arguendo, there had been error in denying Muhammad,smotion to remove his trial, we are perzuaded beyond reasonable doubt that itwould have been harmless. The result would have been the same wherever inMaryland this case had been tried. The problern ofpretrial publicity was universalfrom Oakland to Snow Hill, and no jurisdiction could have handled that problemmore deftly than did Montgomery County.

Id. at303-04.

Lastly, four years after Muhammad, the Court of Special Appeals considered Dinkins v.

Grimes,20l Md. App. 344 (2011), which, though not a criminal removal case, upheld a civil

removal order on the totality of is peculiar facts. The case involved Lakisa Dinkins, who, on

behalf of herself and ha 7 year old son, sued the Baltimore city Police Department and six

Baltimore police oflicers for, among other things, false arrest, false imprisonment, battery, and

assault, seeking $3 million in compensatory damages and $5 million in punitive damages. Id. at

348-54, n. 2 and n. 8. The complaint alleged that officers had forcefully arrested 7-year-old

Gerard while he was sitting on a dirt bike, that the olficers had handcuffed and taken the child to

the police station, leaving him chained to a bench at the station, and, after the child's mother

lodged complaints, that, 1l days later, other officers had barged into the family's home and

retaliatorily arrested the child's mother, imprisoned her for hours, and then released her without

chuge. Id. at 348-50. on the basis of allegedly prejudicial publicity, the case was removed to

Howard County over Dhkins's objection, where, after a seven-day jury trial, the court granted

Dinkins's motion for judgment on some counts, dismissed other counts, and sent tho rest to the

jury, which ruled in the city's favor on the disputed counts and awarded no damages to Dinkins

on the counts for which the court had granted her judgnr.ent. Id. at 35i-361. Dhkins appealed,

claiming the rernoval order should not have been granted or, altematively, the case should have

been removed to a venue more demographically similar to Baltimore City. Iil. at36l.

On review, the Court described the rernoval as "rare" and began its analysis with a

foreboding citation to the fact that no civil judgrnent had ever been reversed because of

prejudicial publicity. Id. at36l. Nevertheless, the Court examined in detail the facts supporting

the judge's rernoval order. The record made to the trial judge showed that after the child's arrest,

the news media reported how 'lolice had pulled Gerard by the collar and dragged him off the

dirt bike, yelled at the frightened child, handcuffed him, and placed him under arrest.,, Id. at

351. The media quoted Baltimore Mayor Sheila Dixon as saying, "[i]t is clear to me that the

arrest was wrong, tbat the ofEcers on the scene should not have anested the child, and on behalf

of the City of Baltimore, I apologize to the boy and his parents." Id. The Police Commissioner

promised an internal investigation. Id. MeAia reported how local politicians and the NAACp

"echoed their dismay." Id. at 351-52. Dinkins was quoted as saying "that the arrest had

'changed Gerard's life . . . he'll never be the same."'1d. at 352 (intemal brackets removed). The

press covered a City Hall demonstration "call for justice" for Gerard and described Gerard as "a

symbol for broader problems" and that "the situation is an indication of an ongoing problem in

the black community." Id. I*tters to the editor described readers as "disgusted and incensed at

the police action," and a Sun mlumn proclaimed, "[i]f there were a Richter scale that measured

outrage, this incident would have blown the needle offthe thtag;' Id. After Dinkins's arrest, the

story gained force and "athacted national attention," with church leaders calling for boycotts by

religious conventions and WJZ-TV reportiag that as to Dinkins's arrest the State's Aftomey

"personally reviewed the case and called it legally insufficient, fueling claims by the family that

the arrest was retaliatory for the embarrassing arrest of a seven year old.', Id. at 352-53. A

4t

newspaper commentary wrote that "police behavior seems totally unacceptable, with leadership

to blame." Id. at 353. All of this coverage took place in March and April of 2007 and had

largely diminished thereafter, but when Dinkins filed suit in November of 2007, it "stirred up a

new round of media attention." Id. at 353-54. A fulI year after the incident, "time did not erase

the controversy in the eyes of the media," with the Examiner running a story headlined, ,.A year

later, child bears scars of arrest for sitting on dirt b lke." Id.at354.

On these facts, the defendants first requested removal in June of 2008, citing ..the

pervasive, protracted, and totally one-sided portrayal of facts, as well as the hostile public

reaction and protests." 1d. Defendants supported their claim with "exhibits ofmedia coverage of

the events in the case," along with "1340 hits on the intemet discussing the case, all of it

negative, all of it prejudicial." Id., n. 9 (intemal quotafion marks removed). When Dinkins

responded to the removal request, she attached as an exhibit transcripts ofher official complaint

to the City and of "police radio communications about Gerard,s Nrcstj' Id. at 355, n. 12. In

ruling on the removal request, Judge M. Brooke Murdock, in light of the fact that this was a civil

suit involving police actions while on thejob, said, "I'm very ftoubled by the fact that ttre chief

Executive of this jurisdiction . . . makes a public statement in a case which clearly was headed

towards litigation." Id. at 355. Nevertheless, drawing on her experience, she said, ,.I've seen

juries sort through all kinds of complicated high publicity cases and come to the-what this

court viewed was the correct decision." 1d. As such, she denied the request pending voir dire.

Id. Unfortunately, in the meantime, the 'rtranscripts attached to [Dinkins,] response found their

way into the hands of local television stations and other media"" reporting ..that one of the

[defendants] and a dispatcher joked about arresting Gerard." Id. at356. The Examiner likewise

published an article quoting one of the defendant's radio communications about Gerard as

42

sayhg, "[h]e's getting locked up," to which the dispatcher said, ,.good,,, followed by the

defendant saying he was goilg to the scene to "handcuff the kid," which caused the dispatcher to

start laughing. 1d. The same article reported that two of the defendants "made some type ofbet

as to whether or not they could lock up a 7-year-old)' Id.

On August 7, 2008, the defendants renewed their motion for rernoval, citing the new

publicity and accusing Dinkins of deliberately leaking the "clearly irrelevant" transcripts in "a

scheme to use the press to taint the jury pool" and "gamer emotional and prejudicial publicity

adverse to the defendants . . . ." Id. at 356-57, n. 14. when Judge Murdock ruled on this

renewed request in Septernber of 2008, she granted the request, citing "extensive, negative

publicity alleged to have occurred, including but not limited to the 46 examples attached as

exhibits to Defendant's motion." Id. at 358. She emphasized in particular the ,,statements

alleged to have been made by high-ranking public officials.,' 1d.

Reading this trial record, the court of Special Appeals could but only agree that the

"totally one-sided portrayal of facts," id. at 354, had resulted in publicity that was "pervasive,

negative, continuing, and prejudicial," wittr "media saturation and public outrage stined up by

the arrests of Gerard and Dinkins," id. at 364. The court noted that ,.tle accounts and

commentary were specific to the officers involved," and-as was devastating in this tlpe of

lawsuit-that the defendants' 'hltimate ernployer, the Mayor, crificized the officers, conduct.,,

Id. The Court viewed that the media described Gerard "as traumatized and the victim of a civil

rights violation." Id. In upholding Judge Murdock's decision to reverse herself and remove the

case without waiting for voir dire, the Court concluded that "the media reaction to the .laughing

police dispatcher transcript' . . . undoubtedly made it clear to the court that prejudicial pretrial

publicity would continue to occur." Id. at 364. Moreover, the court explained, '\vutirrg for voir

43

dire wotld not be appropriate in light of statements made by high-ranking city officials and

because there were demonstrations held in the City demanding that the Defendarts be terminated

and prosecuted." Id. at 365. The Court viewed these particular facts as a "finding of a City-

unique source of continuing local resentment," whereas "a Howard County jury would not have

been as affected by statements of public officials from another jurisdiction or the community

reaction in the city." ,/d. Purporting to apply a de novo review standard (the court seerned

uncertain "[w]hether we gauge the removal decision under an abuse ofdiscretion standard or de

novo), the Court concluded by saying, "there was no eIlor in Judge Murdock,s decision to

remove the case from Baltimore CiW." Id. at364-65.

C, Application of Maryland's removal jurisprudence to Defendants, removal suggestion

From the above principles and perspective distilled from more than 100 years of

Maryland removal jurisprudence, the Defendants' suggestion that because ofpublicity this Court

must rernove their cases from Baltimore City before even speaking to a single prospective juror

simply crumbles under the massive weight of contrary precedent. Attempting to meet their

heavy burden, the Defendants spend countless pages of their Mernorandum simply listing news

stories and quotations that emerged from the tumultuous weeks following Mr. Gray's death, but

voluminous coverage does not equal prejudicial coverage. As Dovrzs held long ago, "[c]rimes of

the nature of the one[s] with which the [defendants are] charged naturally give rise to much

newspapff and other comment, but such cornment does not always arouse such a general

prejudice against the accused as to render it impossible for [them] to secue a fair rial', in

Baltimore city. 111 Md. at 250. Indeed, the Defendants' standmd would hold that no case

attracting intense public interest could ever be tried in the venue where the crime occurred, yet

Piracci and llorthen, for example, say otherwise. The Defendants repeatedly make conclusory

statements about prejudice sternming from the fact that protestors came out onto the skeets in

force or that dozens of media outlets from around the world broadcast and wrote about those

protestors, but the Defendanls' specious logic permits no inference about the only conclusion

that should concern the Court-jruor impartiality at the time of trial. The trials are still months

or years away. Moreover, riots no doubt reflect the anger of those rioting, aad press intensity

increases with community interest, but "[m]any crimes are committed under circumstances of

such flagrant atrociousness as to impress and shock the whole community'' without ultimately

having any impact on juror impartiality. Garlitz,7l Md. at299.

Moreover, the Defendants' focus on the riots assumes that the riots have only to do with

the Defendants and their alleged crimes, but as Mayor Rawlings-Blake recently told the U.S.

Conference of Mayors:

We talk a lot about how cities are on the upswing. Articles and books are beingwritten about the new renaissance that's taken place reversing a trend of decadesof decline ofcities. And it's all great. But as you all saw two months ago there arestill very large segrnents of our cities that feel disenfranchised, disaffected anddisgusted. They don't see the growth and positivity that occurs in other parts oftown. It's an issue of opportunity as much as it is an issue of policing. It's as muchan issue of jobs as it is policing. It's as much an issue of community developmentas it is policing. It is as much an issue of education as it is community policing.And we don't lose sight of that.

U.S. Conference of Mayors, Press Release, llurl.e 22, 2015, available at http://usmayors.orgl

pressreleases/ uploads/2015/0622-release-annualmeeting.pdf. The Defendants would have the

Court draw no distinction between the publicity about their actual charges and the extensive

coverage about the events in Baltimore preceding those charges. Skilling, however, mandates

that the Court differentiate between when "publicity is about the event, rather than directed at

individual defendants." 561 U.S. at 384, n. 17 (internal quotation mmks rernoved).

Furthermore, while the Defendants point out that many of the protesters called for the

45

Defendants to be prosecuted, whatever preiudice derives from these protest! must be mitigated

by the fact that these calls for prosecution occurred in the aftermath of two nationally debated

police-custody deaths, namely Michael Brown in Ferguson and Eric Gamer in New York, where

the officers involved were not charged. The fact that the calls for prosecution in Baltimore

stopped after the Defendants were charged shows that the sentiment underlving those protests

was likely in part a reaction to these two prior incidents----ca1ls for justice are not the same as

calls for vengeaace any more than charging is the same as convicting. Baltimore's riots, even to

the extent directed at the Defendants, draw no comparison to the type of defendant-specific mob-

violence from which prejudice clearly may be judicially presum ed. Fountain, Lee, and Jones-

the three Eastem Shore lynch mob cases-provide an example of the latter.

Regarding the particular statsments the Defendants complain will deprive them of a fair

trial, they assail the Mayor for being "at the foreliont of the media coverage conducting

interviews, press conferences, and releasing statements regarding the arrest and death of Freddie

Gray, the protests and riots following his death, and, ultimately, the criminal charges of [the

Defendants.l Def. Memo. in Support of Mot. for Removal at 40. All that can be said about

attacking the Mayor for updating the public about the events that followed Mr. Gray's death is

that, as the llanzer cor:rt said, '{i]t is difficult to perceive how, without complete suppression of

news, an acoount like the one in question could be made the basis of complaint.,, 2O2 Md. at

607. Focusing on specific statements, the Defendants claim prejudice from the followiag

Mayor's statements: (1) "[I'm] very determined to get to the bottom of this incident and to hold

those who need to be held accountable." (2) "If, with the nation watching, three black women at

three different levels can't get justice and healing for this community, you tell me where we're

going to get it in this muntry?" (3) "The family of Mr. Gray waats answers. I want answers. Our

entire city deserves answers. We will remain vigilant on this path to justice." Def. Memo. in

Support of Mot. for Rernoval at 41. These statements say absolutely nothing about the

Defendants, in no way say that the Defendants are guilty, and do not even conceivably seek to

instill in Baltimore's citizens a "fixed and deliberate" opinion, 'lartaking in fact of the nature of

a pre-judgrnent.' ' Garlkz, Tl Md. at 300. They cry foul that the Mayor said that hearing the

charges read made her feel "sickened" and "heartbroken." Def. Memo. in Support of Mot. for

Removal at 42. Agul, these statements have nothing to do with prejudice. As Garlitz said,

"[a]ll men, by nahual instinct, are supposed to be more or less biased against crime in the

abstract; and every member of the community, against which crime has been committed, is

naturally interested and impressed with the circumstances of crimes of atrocious character." 71

Md. at 299. The Defendants claim that the Mayor "told the Police Commissioner to immediately

suspend without pay all of the Officers above." Def. Memo. in Support of Mot. for Removal at

42. As discussed in Part I of this Response, the Mayor said no such thing. l,astly, the

Defendants insist that "devastating" prejudice flows from the Mayor's waming that those'?ho

wish to engage in brutality, misconduct, racism, and comrption, let me be clear, there is no place

in the Baltimore police force for you." Id. at 42. Again, as the Mayor said in her speech to the

Conference of Mayors, there are larger issues at play here, and the Mayor carefully avoided

mentioning the Defendants or their cases directly. The Defendants simply take her statement out

of the larger context in the desperate hope of forcing comparison with Mayor Dixon's statements

in the Dinkins case. In Dinkins, however, Mayor Dixon's statement reasonably could lead to

prejudice considering its context as made by the defendants' employer condernning their actions

in a work-related tort lawsuit seeking punitive damages. Mayor Rawlings-Blake's words do not

ranotely equate.

47

The Defendants, likewise, focus on police officials' statements as somehow giving rise to

prejudice. They preface their argument with citations lo Dinkins in which the Defendants claim

that Commissioner Hamm, in that case, said 'lhere was 'no way to justifr' the actions of the

officers of the case" and "'on the surface, police behavior seems totally unacceptable, with the

leadership to blame."' Id. at 42. Again, the Defendants completely misrepresent the facts. In

Dinkins, the Court describes that "Baltimore Sun columnist Gregg Kane wrote: . ' . As Dixon and

Hamm have said, there's really no way to justifo thal." Dinkins,201 Md. App. at 352.

Likewise, the Court stated," [a]n April 12 'commentary' in the Examiner on Commissioner

Hamm said of Gerard's arrest: 'On the surface, police behavior seems totally unacceptable, with

the leadership to blame." Id. at 353, Both of these quotes, thus, actually carne, not from the

Commissioner, but from a reporter writing about the Commissioner. The actual statements that

Commissioner Batts and Deputy Commissioner Davis made and which the Defendants claim are

prejudicial are simply details of the van ride that is alleged to have caused Mr. Gray's death. As

Grammer held, however, "prejudice . . can neither be shown nor fairly and reasonably be

assumed to have existed [about] facts which t]re public had leamed of fbut which] were

presented as evidence at the trial." 203 Md. at 209. Lastly, the Defendants claim that the

Commissioner "anphasized 'police misconduct,' specifically relating to the [Defendants] in this

case." Def. Memo. in Support of Mot. for Rernoval at 44. As was discussed in Part I of this

. Response, this assertion outright distorts the facts. The Commissioner spoke only generally

about misconduct and refused to comment on the Defendants' cases.

Next, the Defendants insist they have been prejudiced by statements made by various

local politicians. The Defendants chronicle comments from Senator Conaway that 'there should

be a civil rights investigation," that arrests are too frequently violent or fatal, and that officers

need more training. Def. Memo. in support of Mot. for Removal at 44-45. They call out

Delegate Anderson for saying that he has too many questions to call for any specific action

regarding Mr. Gray's death. Def. Memo. in Support of Mot. for Removal at 45. They decry

Senator Gladden's call for "real change in the city of Baltimore and the way in which police

officers engage with the community." Id. They cite prejudice from council president young's

request for an independent investigation into Mr. Gray's death and expression of frustration at

the lack of clear answers. Id. at 46. They find more prejudice in councilmembers costello,

Kraft, and Holton's broad comments about how Baltimore has changed, about how too many

deaths occur at police hands, and about how some were celebrating to finally see officers

charged in one of those deaths. Id. at 45-46. In particular, they assail Councilman Mosby for

appearing on television during the riots, for calling for answers in Mr. cray,s death, for

participating in peaceful dernonstrations, and for discussing community distrust and skepticism

about the police investigation in this case. Id. at 46-4t. Again, as discussed in part I above,

every single one of these statements says nothing specific about the Defendants' guilt or

innocence. Not one statement attempts to fix the public's opinion about the ultimate facts that

the jury will decide. Most of these statements are simply questions about the case or are "factual

disclosures and are devoid ofany showing ofpublic indignation or prejudice in the case.,, Gray,

224 Md. at 316; see also Kable, 17 Md. App. at 29 (no prejudice to an officer charged with

bribery in the generalized statement by the county council that it will ilrvestigate bribery).

Regarding the Defendants' fixation on the State's Attomey's public armouncement of the

charges and brief comments made on May 1, 2015, as noted in part I above, the Defendants

concede that the infomration shared during this reading constituted public record. Moreover, as

Grammer makes clear, the pretrial disclosure of facts that will be presented in evidence cannot

49

be deerned prejudicial, nor does a State's Attomey's televised announcement of charges mean

that a Court need not proceed in Baltimore City to "examine[] prospective jurors on thei voir

dire to ascertun whether twelve citizens were available who would affirm under oath that they

would be guided only by the testimony produced at the trial." 203 Md. at 21 1' Even if, as in

Downs, the State's Attorney had come right out and vowed the convict the Defendants, "it does

not necessarily follow that by reason thereof there exist[s] such a prejudice against the accused

as to render it impossible for [them] to secure a fair and impartial hial in Baltimore City." 1 1 1

Md. at 250.

Lastly, the Defendants ask the Court to examine the statements of community activists

and the NAACP leadership and to find therein such prejudice as will compel pre-voir dire

removal. Again, the Defendants make no distinction between generalized statements discussing

community-police relations and asking lor answers as to how Freddie Gray died from those

stat€rnents that are actually directed toward the Defendants' guilt. Not one of the staternents that

the Defendants cite even mentions them by name. Moreover, a1l of the staternents and activism

that the Defendants list occuned in the immediate aftermath of Mr. Gray's death. "That time

soothes and erases is a perfectly natural phenomenon, familiar to all." Yount,467 U.S. at 1034'

The Defendants can only speculate as to the state the community will be in when tlese matters

come to trial and cannot assert prejudice from a tkee-week snapshot. "Facts must be shown

from which the Court can deduce the conclusion that the ground relied on for the change actually

exists; and as a rule, mere belief, opinions, or conclusions will not be sufficient . ' . ." Downs,

11 1 Md. at 251.

Beyond statements, the Defendants ask the Court for removal before voir dire ot the

basis that the cases will proceed as more than onejoint kial such that "coverage ofany one of the

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trials in this case will gamer tremendous publicity and public sentiment and will cause the next

trial il line to that much more prejudiced." Def. Memo. in Support of Mot. for Removal at 71.

The defendants in Newton, 147 NId. at 76-7'7, and Piracci,207 Md. at 507, asserted this very

argument, but the Court of Appeals expressly declined to presume prejudice. As the Court

noted, "a continuing public interest" in the cases does not equal "conclusive evidence of the

existence of such an intense prejudice against the accused" as would warrant removal . Id. at

5 1 1. The Defendants also express paranoia based on Fox News video clips that members of the

public will attempt to infiltrate the jury solely to convict the Defendants. Def Merno. in Support

of Mot. for Rernoyal at72. They cite no evidence that such a thing is actually happening nor any

reason why carefil voir dire cr:,tld not identifo such a person. Again, the Defendants can only

speculate, and speculation will not carry their heavy burden to justiff removal.

The Defendants also spend pages of their Mernorandum discussing the curfew and

financial impact that the riots had on Baltimore's economy. They then attempt to connect these

matters with a juror's ability to be impartial, saying, in part, ..[t]he number of Baltimore City

residents that would be on any potential jury pool that were personally affected, or that had

family or close friends affected would render the yoir dire and j,ary selection process useless.,,

Def. Memo. in Support of Mot. for Removal at 69. Putting aside that the Defendants cite no

authority for such aa attenuated, domino-effect theory of prejudice, Jeffiey Skilling attempted to

argue that "the sheer number of victims" of the Enron collapse caused such a widespread

community impact in Houston that suely prejudice must be presum d. skilling,561 U.S. at 384.

Alas, the Supreme Court disagreed with this reasoning, holding that the large number of victims

did not "trigger a presumption of prejudice." ,1d.

51

Finally, the Defendants latch onto Dinkins as binding authority for their position that

Baltimore contains a "City-unique source of continuing local resentment" and "ao overwhelming

sense of unrest among the population of the city that would make finding a fair and impartial

jury in this matter impossible even with the help of voir dire;' Def. Memo. in Support of Mot.

for Removal at 60-63. The only evidence they cite of this resentment and unrest comes from the

fact of the riot itself and from various quotes taken Aom protesters during and immediately after

the riot. The Court need not consult a statistician to know that the Defendants simply cannot

credibly extrapolate data about future, widespread public sentiment drawn from a sample size of

a few days and a few people. As noted in Part I of this Response, Baltimore has 622,793 people

living in it. The Defendants do the 622,700-something people not quoted a derneaning disservice

in lumping thern together with a few who may have already decided the Defendants' guilt.

Moreover, Dinkins does not remotely bind this court's decision. As discussed above,

Djzhrr involved a civil action in which the removal motion was assessed nearly a year and a

half after the rmderllng tort. Dinkiru,20l Md. App. at 357 . The victims in the case were a

mother and a 7 -year-old child described as "traumatized and a victim of a civil rights violation'"

Here, Mr. Gray has hardly provoked universal sympathy. For example, on the Baltimore Sun's

website, in response to the May 5, 2015, article titled, "officer lequests to see knife as part of

defense in Freddie Gray case," readers publicly debated Mr. Gray's character, with user

,,layCeezt',listing out what he believed was "Freddie Gray's Arrest Remrd," and another user,

.,Bicbickell," calling Mr. Gray a "lanown drug dealer and felon." see State's Appendix.

Moreover, untike in Dinkins, where highly inflammatory and irrelevant stater'nents laughing

about handcuffing a child were leaked to the press by the plaintiff, here, no staternents by any of

the Defendants have been publicized. Additionally, whereas the news coverage rn Dinkins that

comprised the record on review contained "totally one-sided," "pervasive, negative, continuing,

and prejudicial coverage that was specific to the defendants, Dinkins,201 Md. App at 354-64,

these cases have drawn largely factual news coverage related to the events following Mr. Gray's

death. case-specific coverage of each Party's position has been, at worst, balanced, ifnot more

s1'rnpathetic to the Defendants and critical of the prosecution. see State's Appendix (providing a

catalogue ofpress coverage). For example, a June 8, 2015, Sun editorial, entitled, ,,Mosby is a

circus act," described the State's Attomey as "over her head" and on a "quest . . . for revenge."

sea State's Appendix. In a May 18, 2015, Sun editorial entitled, "Mosby has second chance to

get the Freddie Gray charges right," two veteran attomeys jointly wrote that "Ms. Mosby

appears to have been driven by the politics of the moment rather than the strength of the

evidence," and, writing of the Defendants, the attomeys declared that "the reputations and

possibly the careers of several officers previously viewed as among the best of the best have

been destroyed." See State's Appendix. As the Court noted in Gray, 224 Md. at 316, the

Defendants cannot infer prejudice from such articles since they 'tnight have elicited sympathy

for the accused and thereby benefited [them]." Furthermore, this Court should hesitate to rely on

Dinkirc if fot no other reason than its obvious position as an outlier in rernoval jurisprudence that

not only seerned to apply the wrong standard of review but also seemed to embody the notion

that bad facts make for bad caselaw, given that the Court openly signaled that no civil judgrnent

had been overturned based on pretrial prejudice, much less a judgnrent in the appellant's favor

where the jury simply saw no reason to award damages. In short, the Defendants reliance on

Dinkins, while understandable ia light of its superficial similarities, falls flat in the face of the

Defendants' total failure to meet their burden to justifo rernoval.

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Conclusion

Having thoroughly reviewed the Defendants' overlapping claims that this Court should

remove these cases from Baltimore City and do so prior to voir dire, the Court must conclude

that the Defendants' arguments fatally misapply the law and aver grossly insuffrcient facts to

justifo the exheme judicial action they seek. The presumption of prejudice doctrine has evolved

since the 1960s and now clearly favors voir dire as the best measure of community prejudice.

The Defendants have not remotely equated their cases with the facts presented in Rideau, Estes,

ot sheppard. Moreover, the Defendants' removal claim under Maryland's constitution and

implementing rule likewise ignores 100 years of precedent imploring courts not to presume that

an impartial jury cannot be found. Fundamentally, the Defendants misperceive the very

definition of "impartiality'' and would have this Court insist on jurors totally igrorant of the

events in their community, a standard not only deemed impossible but contrary to human nature,

as chief Justice Alvey so eloquently established. If facts exist which will one day support a

motion for rernoval (and assuming the Defendants do not elect a court trial, which they have not

yet waived), that day will come during the catrse of voir dire after this Honorable Court and the

Parties have had a chance to properly assess, without resorting to derneaning presumptions based

on bald speculation, whether pretrial publicity has in fact fixed public opinion against the

Defendants. In the meantime. this Court should deny the Motion with leave to renew during or

after voir dire.

wherefore, the State moves this Honorable court to deny the Defendaats' Motion for

Removal at this time but with leave for the Defendants to renew their Motion during or after voir

dire ofprospective jurors prior to the tria1s of these mafters.

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Respectfu lly submitted,

Marilyn J. Mosby

The SunTrust Bank BuildingBaltimore, Maqlaad, 2l2A(443) 9 8 4 -60 I 2 (telephone)(443) 9 8 4- 625 6 (facsimile)i b le ds oe@s t a tt orn ev. o rs

Mauhew Pillion (#653 49 l)Assistant State's Attomey120 East Baltimore StreetThe SunTnrst Bank BuildingBaltimore, Maryl and 2 1 202(443) 98 +6045 (telephone)(443) 98+6252 (facsimile)mp i I I i on @s t au o rnett. o rg

(#68776)

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