q

STATE OF

MARYLAND

?tis

EC[IV

llrr.,l

25

ED

*
AHI!. !rr

- "r - *
:, j. ,(

CAESAR GOODSON,
EDWARD NERO,

IN THE
CIRCUIT COURT FOR
BALTIMORE CITY

CASENo. 115141032
CASENo. 115141033
CASENo. 115141034
CASENo. 115141035
CASENo. 1i5141036
CASENo. 115141037

*
*
*

GARRETTMILLER,
BRIAN RICE,
ALICIAWHITE, &
WILLIAMPORTER

i(

*
*

**
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presumption of prejudice, the Defendants rely on a fatally outdated and improper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
assessing public sentiment, and ignoring the relevance that non-joinder

will

of time before

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

facts for removal

will

pior to voir dire. Ultimately. the appropriate time to assess the predicate
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
(emphasis

does not require ignorance;' Skilling

in original). "In

these days

of swift,

v. tls., 561 U.S. 358, 381 (2010)

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

film three times

to

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

of

broadcast this

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,
rryas Rideau's

trial-at which he pleaded guilty to murder"

"in a very real

sense

before the eyes of the ..tens of

thousands ofpeople who saw and heard

it;'

Id. at 726 (ernphasis in original). Justice clark, in

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

Two years later, in Estes v. Texas,38r

res

u.s.

judicata.', Id.

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

confirsing to the jury, the participants, and to the viewers."

1d.

more

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

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

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

at the
evidence that tended to incriminate Sheppard," allegations of damning "scientific tests
Sheppmd home" that were never infoduced at trial, and front page headlines asking,
Sam Sheppard in

"why Isn't

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

jurors received anonymous

names and addresses were all published in the paper, and prospective

judge permitted
letters and telephone calls about the case. Id. at 342. At the trial itself, the
and less than
construction of a special table inside the bar stretching the entirety of the courtroom

tkee feet from

the bar, three

the

jury box and at which

sat 20 feporters.

of

full rows were assigned to press, with Sheppard's

one side of the back row. Id. at

the four rows of benches behind

and his

wife's family relegated to

343. Inside the courthouse, multiple rooms wele tmnsformed to

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

"doubt that this deluge of publicity reached at least some of ore

jury." Id. ar 357 .

no

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,

Supreme Court returned to the doctrine

in Murphy v. Florida, 421 U.S. 79a e975), the

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

circumstances that [a defendant's] trial was not fundamentally

fair."

Id.

The

of

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.

*[t]he length to which the hial

As part of this totality assessment, the Court held that

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

protestations may be drawn into question; for

prejudice, the reliability

of

other's

it is then more probable that they are part of

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

cause 268 out of the 430

venirsmen."

guil!

and the court had excused for this

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
the basis that 'lvidespread dissemination
the minds ofpotential

a change

ofvenue on

ofprejudicial information could not be eradicated from

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

betieved. Id. at 1028-29.

of impartiality could not be

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
examined closely the

424. Answering this question in the negative, the court

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

Process clause

tial,

the Due

of the Fourteenth Amendment might well have required more extensive

examination of potential jurors than

reaching voir dire even

in

cases

it undertook here." Id. at 429. The court, thus,

favored

like Imin rather than irnrnediate removal based solelv on

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

highly publicized conspiracy and fraud trial of former Enron

case involved the

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
377.

L7

],

Id.

at

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).

prejudice looked,

Moreover, the court's analysis

in part, to the

post-hoc efficacy

in

finding no presumption of

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.

384-85. while the court stopped short of salng that Rideau, Estes,

sheppard were wrong

and

at

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
standards

...."

v.

Houk,687 F.3d 723,733 (3d Cir.2}l2). "Based on Skitting

..

. , [t]he older

[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

rather than ordering immediate removal).

misapply the doctrine

of

fust

assess the impact

of publicity

In short, the Defendants would have the

preswned prejudice

Court

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

Texas. If

of

1960s Calcasieu Parish, Louisiana, or Smith County,

'\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

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

http://quickfacts.ceirsus.gov/qf<vstatest24/245lo.hunl.

of

city

(2014), available at

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

Baltimore-Columbia-Towson metropolitan statistical area, which contains

an

of

the

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

is

27

assert that

Baltimore's total population ofpersons eligible for jury duty

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

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

population of 400,000 citizens, was sufficiently large that it ,,reduced the

likelihood of prejudice" wder skiiling's test. In re Luong, 2014 Ala.

2014).

LEXS 39, 12-13 (Ala.

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.,,
Hanpshire

Gribbre, 66 A.3d,

rlg4, r2ol-og (N,H. 2013). Additionally,

the U.S. District

Nerar

court

for the western District of pennsyrvania found that

the Erie Division,s 545,615 total popuration
made

it unlike

Armstrong' 739
1487

(llm cir'

those cases where the supreme court has presumed

prejudice. u.s. v. Diehr_

Supp' 2d 796,793-94 (w.D pa. 2010); compare

coreman v. Kemp,778 F.2d

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, while

skilling ciled

the

juror pool size as a fact available from

the record in that case, neither skilling

nor 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

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

the mind of anyone who watched

it;'

of guilt . . . was likely indelibly in

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

Defendants correctly note, following Mr. Gray's death, the

city

the

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
as

Moreover,

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
annonncment 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

is

'sickened, heartbroken'by alleged conduct

of

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

at

says she

http://www.baltimoresun.com./news/maryland/baltimore-city/bs-md-ci-freddie-gray-srb-reaction0502-20150501-story.hftnl. This call camot possibly create prejudice since it merely restates the

in

authority codified

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

press conference,

April 24,2015, police

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

Mot. for Removal at

44. Agan, an actual review of what the Commissioner

of

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
2L

in

Section

II of this

Response

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

poll?

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

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

in

tht
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
Indeed, the State has even

file

il

the press:

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

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

The

erases

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
Defendants

jointlv. some of the Defendants

wii

will not be tryine all of the

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

information would be premature and out

cases

without the benefit of this

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 determination
without the aid of a jury.
(b) In all cases of presentrnents or indictments for offenses that are punishable by
death, on suggestion in writing under oath of either of the parties to the
proceedings that the party cannot have a fair and impartial trial in the court in
which the proceedings may be pending, the court shall order and direct the record
of proceedings in the presentrnent or indichnent to be transmitted to some other
court having jurisdiction in such case for trial.

(c) In all other cases of presentment or indictment, and in all suits or actions at
law or issues from the orphans' court pending in any of the courts of law in this
state which have jurisdiction over the cause or case, in addition to the suggestion
in *riting of either of the parties to the cause or case that the party
u
"*oihur"
fair and impartial kial in the court in which the cause or case may be
pending, it
shall be necessary for the party making the suggestion to make it sajtisfact#ly
appear to the court that the suggestion is true, or that there is reasonable grouni
for 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, having
jurisdiction in the cause or case, for trial. The right of removal
also shall exist oi
suggestion in a cause or -case in which a the judges of the court may be
disqualified under the provisions of this constitution to sit. The court to whicl the
record of proceedings in such suit or action, issue, presentrnent or indictrnent is
transmitted, shall hear and detennine that cause or case in the same manner as if it
lad been originally instituted in that court. The General Assernbly shall modifu'
the 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 the
Orphans' Court, any party may file a motion for removal accompanied by an
affidavit alleging that the party cannot receive a fair and impartial trial in the
county in which the action is pending. If the court finds that there is reasonable
ground to believe that the allegation is correct, it shall order that the action be
rernoved for trial to a court of another county. Any party, including a party who
has 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 and
either party files a suggestion under oath that the party cannot have a fair and
impartial trial in the court in which the action is pending, the court shall order that
the action be transferred for trial to another court having jurisdiction only if the
court is satisfied that the suggestion is true or that there is reasonable ground for
it. The Circuit Administrative Judge of the court ordering removal shall designate
the county to which the case is to be removed. A party who has obtained one
removal 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

inadequate

will

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

be

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

26

ofthis basic guarantee:

All persons accused of crime

and impartial

are entitled, as matter of right, to be tried by a fair

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 the
condition of the mind to be hied, in order to obtain with reasonable certainty, the
requisite degree of faimess and impartiality in those called upon to serve as
jurors? In this age of intelligence and universal readin& with newspapers in the
hands 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 their
community, no matter how notorious or atrocious it may be, with minds wholly
unaffected or unimpressed by what they may have read or heard in regard to it, is
simply to maintain a rule or standard by which every man who is fit to sit upon a
jury may be excluded. Many crimes are committed under circumstances of such
flagrant atrociousness as to impress and shock the whole community, the igrorant
as well as the intelligent; and if such rule of exclusion were applied, it would, in
many cases, render the impanelling a jury impossible. Such state of things could
never be contemplated by the law. All men, by natural instinct, are supposed to be
more or less biased against crime in the abstract; and every member of the
communitS against which crime has been committed, is naturally interested and
impressed with the circumstances of crimes of atrocious character. But this
natural bias, however atrocious the crime, can never be regarded as a sufficient
cause for the disqualification of the juror, The intellectual, as well as the moral
impressions, produced by the readhg or hearing of reports or statements of facts
in regard to the commission of crime are such that intelligent minds cannot resist;
indeed, in many cases the mind receives the impressions from such statements
intuitively. But these impressions, with intelligent, fair minded men, are always of
a hypothetical nature, resting upon the supposition of the truth ofwhat they have
read or heard. The minds of such men always remain open to the correction of
former impressions, and remain entirely impartial, with power to hear and
determine upon the real facts of the case, without the least bias in favor of former
impressions, whatever they may have been. And therefore, in our present state of
society, all that can be required of a juror, to render him competent, is, that he
shall be without bias or prejudice for or against the accused, and that his mind is
free to hear and impartially consider the evidence, and to render a verdict thereon
without regard to any forrner opinion or impression existing in his mind, formed
upon rumor or newspaper reports. whenever it is shown that such is the state of
mind of the juror, he should be held to be competent; and such is tle rule as laid
down by this Court in the case of Waters vs. Ihe State,5l Md. 430. ln that case it
was said 'that the opinion which should exclude a juror must be a fixed and
deliberate 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

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

state, 116 Md. App. 113, t2o-21 (1997) (quoting Garlitz

defining 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

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,

Tll

Md. 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
such prejudice as

of

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
lynch mobs attempted to remove defendants from state custody and
the

trial. In Fountain

v. State, 135 Md.

77

cases where actual

kill them during or before

, 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

picket line to escort the jury and

the defendant through the mob and into the courthoue. Id. at
presumed that the

jury was prejudiced

82. On these facts, the Court

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.

By stark contrast to these startling facts, in Newton v. state,

147

Id. al4g6-g7 .

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

coverage printed

a removal

motion based on allegedly "inflammatory and prejudicial" news

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

"[i]t is difficult to perceive how, wit]rout

as

"a factual disclosure" from which

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 sentencd 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

207. On the evening that this statement

charged with the

killing of his wife . . . ." Id.

at

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

case, that is, conclusion before

has been responsible for bringing a conclusion to this

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.

of

the

Id. While the Court criticized

the

Reviewing this record, the Court found no prejudice could flow from any
disclosures that were later "presented as evidence at the trial."

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

error without more. Id. at 210. The Court reiterated that

unbiased

to find

"[i]t is not to be presumed that an

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

and impartial jury trial," even where there was

32

'\ride public knowledge of the crime and its

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

of his feeling that

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
rernoval motion from one
construction

of

it

Piracci v. State,207 Md. 499 (1955), considered a denied

several cases involving a public funds fraud scandal

in

the

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,

dealings . . .

with comments suggestive, if not accusative, of improper or unlawful

." 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
such an intense public prejudice against the accused" as would warrant removal

Id. at

of

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

of that

in the Circuit Court for Montgomery County, the Chief

Judge

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

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 reitrated 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

37

if viewed in isolation, despite the fact

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

erroneously permitted
Indeed, the

a surprise witness who was

to testiry to irrelevant prior acts of abuse that Worthen

also

committed.

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, excpt two, had read, sen, 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

the rule that

"[i]t is not to be presumed . . .

where the pretrial publicity

new venue, the Court ernphasized

that an unbiased jury cannot be had," and ..[o]nly

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

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. That
includes all parts of Maryland, and, had a removal been granted, it would have to
have been to some place in Maryland. Ironically, Muhammad's argument refers to
"the numerous articles from the Washington Post and Baltimore Sun." After
eliminating those areas covered by the Post and the Sun, what part of Maryland is
left? [. . . ] Even if, arguendo, there had been error in denying Muhammad,s
motion to remove his trial, we are perzuaded beyond reasonable doubt that it
would have been harmless. The result would have been the same wherever in
Maryland this case had been tried. The problern ofpretrial publicity was universal
from Oakland to Snow Hill, and no jurisdiction could have handled that problem
more 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
removal order on the totality of

behalf of herself and

is

case, upheld a

civil

peculiar facts. The case involved Lakisa Dinkins, who, on

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

foreboding citation to the fact that no civil judgrnent had ever been reversed because of
prejudicial publicity. Id.
the judge's rernoval

at36l.

Nevertheless, the Court examined in detail the facts supporting

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."

promised an internal investigation.
"echoed their dismay."

Id.

Id.

The Police Commissioner

MeAia reported how local politicians and the NAACp

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

4t

old.', Id. at 352-53. A

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
pervasive, protracted, and totally one-sided portrayal

of facts, as well

..the

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
42

as

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

adverse to the defendants

renewed request

in

...

Septernber

."

jury pool" and "gamer emotional and prejudicial publicity

Id. at 356-57, n. 14. when Judge Murdock ruled on this

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

Reading this trial record, the court

officials.,'

1d.

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."
case

Id.

In upholding Judge Murdock's decision to reverse herself and remove the

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

Baltimore

city.

111 Md. at

250.

it

impossible for [them] to secue a fair

rial', in

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 being
written about the new renaissance that's taken place reversing a trend of decades
of decline ofcities. And it's all great. But as you all saw two months ago there are
still very large segrnents of our cities that feel disenfranchised, disaffected and
disgusted. They don't see the growth and positivity that occurs in other parts of
town. It's an issue of opportunity as much as it is an issue of policing. It's as much
an issue of jobs as it is policing. It's as much an issue of community development
as 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

Furthermore, while the Defendants point out that many

45

quotation mmks rernoved).

of the protesters

called for the

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 Jonesthe three Eastem Shore lynch mob cases-provide an example of the latter.

Regarding the particular statsments the Defendants complain

will deprive them of

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

41.

Rernoval at

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 pre-judgrnent.'

'

Garlkz,

"fixed and deliberate" opinion, 'lartaking in fact of the nature of

Tl Md.

at 300. They cry foul that the Mayor said that hearing the

charges read made her feel "sickened" and "heartbroken." Def. Memo.

Removal at

42. Agul,

in Support of Mot. for

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

42. As discussed in Part I of this Response,

the Mayor said no such

thing. l,astly,

at

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,

Conference

as the

Mayor said in her speech to the

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

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
assumed

. can neither be shown nor fairly and reasonably

to have existed [about] facts which t]re public had leamed of fbut which]

presented as evidence at the

trial."

be

were

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

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

49

will be presented in evidence cannot

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

trial." 203 Md. at 21 1'

Even

if,

as

Downs, the State's Attorney had come right out and vowed the convict the Defendants,

"it

does

would be guided only by the testimony produced at the

in

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."

111

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
statrnents 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
11 1

will not be sufficient . ' . ." Downs,

Md. at 251.
Beyond statements, the Defendants ask the Court for removal before voir dire

basis that the cases

will proceed as more than onejoint kial

50

such that "coverage

ot

the

ofany one of the

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
5

1. The Defendants also express paranoia

Id.

at

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

speculate, and speculation

person. Again, the Defendants can only

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

Def. Memo. in Support of Mot. for Removal at

69.

and j,ary selection process useless.,,

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

community impact in Houston that suely prejudice must be presum

caused such a widespread

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

living in

it.

people. As noted in Part I of this Response, Baltimore has 622,793 people

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

defense

in

Freddie Gray case," readers publicly debated

Mr. Gray's

of

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

evidence," and, writing

by the politics of the moment rather than the strength of the

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.

53

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.

54

Respectfu lly submitted,

Marilyn J. Mosby

(#68776)

The SunTrust Bank Building

Baltimore, Maqlaad, 2l2A

9 8 4 -60 I 2 (telephone)
9 8 4- 625 6 (facsimile)

(443)
(443)

i b le ds oe@s t a tt orn ev.

rs

Mauhew Pillion (#653 49 l)

Assistant State's Attomey
120 East Baltimore Street
The SunTnrst Bank Building
Baltimore, Maryl and 2 1 202
(443) 98 +6045 (telephone)
(443) 98+6252 (facsimile)
mp i I I i on @s t au o rnett.

55

rg