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STATE OF MARYLAND IN THE
:'ili *!: - .! il, .rcIRpUIT COURT FOR
v. *. BALTIMORE CITY
*
CAESAR GOODSON, * CASE No. 115141032
EDWARD NERO, {<
CASENo. 115141033
GARRETT MILLER, ,F
CASE No. 115141034
BRIAN RICE, * CASE No. I15141035
ALICIA WHITE, & * CASENo. 115141036
WILLIAM PORTER * CASE No. 115141037
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*
STATE'S RESPONSE TO DEF'ENDAI\TS' JOINT MOTION IN OPPOSITION TO
STATE'S MOTION FOR PROTECTTVE ORDER
STATE'S RENEWED REOUEST FOR HEARING

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

Attorney for Baltimore City; Janice L. Bledsoe, Deputy State's Attorney for Baltimore City; and

Matthew Pillion, Assistant State's Attomey for Baltimore City; and, in further support of the

State's Motion for a Protective Order, responds additionally to the Defendants' Joint Motion in

Opposition to State's Motion for Protective Order as outlined below. The State also renews its

request for a hearing on the State's Motion for Protective Order.

Points of Asreement

First, the Defendants appear to agree with the State's request that they refrain from

disseminating discovery. In their Motion, they write, "the Defendants do not dispute and have

no contention with the request to refrain from disseminating materials provided pursuant to the

discovery process." Def. Jt. Mot. in Opposition at 15. Given this lack of dispute, the State
questions the basis for the Defendants' 19 pages of ostensible opposition to the State's Motion

and wonders whether the Defendants have misread the State's proposed protective order. The

State grounds this concern in the fact that immediately following this sentence of agreement in

their Motion, the Defendants then write, "[r]ather, the defendants shall remain free to file
unsealed, non-confidential pleadings and motions with the court regardless of the contents

therein or its reference to specific material provided through the discovery process." Id. at 15-

16. The Defendants go on to assert that "the protective order sought by the State . . . seeks to

restrict the content of anticipated motions and pleadings so that staternents made about the

discovery materials are designated as confidential and out of view by the public." Id. at 18.

A review of the State's Motion and proposed protective order plainly shows that the State

did not seek to seal the record or court file pursuant to Rule 16-1009, nor did the State seek to

have pleadings or attached exhibits marked confidential. The State has no interest in restricting

the public's or the press's rights of access to judicial proceedings and information. Certainly, the

State expects that the defense will use pleadings to make only good-faith references to discovery

material and not to accomplish by pleading what would otherwise violate the Protective Order

and what they could not ethically accomplish by other means. See Nixon v. V[/arner Commun.,

435 U.S. 589, 598 (1975) (Court files should not "become a vehicle for improper purposes" or be

'1rsed to gratiff private spite or serve as reservoirs of libelous statements for press

consumption.") (intemal quotation marks re,moved). Even if pleadings and exhibits reference or

include materials provided in discovery, so long as the materials serve a genuinely relevant

purpose to the pleading, the State would see no basis to allege bad faith.

Points of Rebuttal

Examining the remaining points that the Defendants set forth in their responsive Motion,

the arguments appear to stem largely from a misunderstanding of the legal standard for and

scope of the proposed protective order. First, the Defendants critrcize the State's use of federal

precedent as persuasive authority on the application of Maryland's protective order provision,

claiming that there exists "no State corollary" to the protective order power provided in Rule

16(dX1) of the Federal Rules of Criminal Procedure IFRCP hereinafter], Def. Jt. Mot. in
Opposition at 2, asserting that "witness protection . . . is the only basis" for a protective order

under Maryland law, id. at 8 (emphasis in original), and accusing the State of "mistakenly
rel[ying] upon Seattle Times to support its far-fetched notion that a protective order is the proper

means for restricting a party's public release of discovery to protect its interest in unfair

prejudicial publicity," id. at 9-10. This claim is as wrong as it is bizane.

FRCP 16(dxl) provides in relevant part: "Protective and Modifying Orders: At any time

the court may, for good cause, deny, restrict, or defer discovery or inspection, or grant other

appropriate relief." By comparison, Maryland Rule 4-263(m) states: "Protective orders: (l)
Generally; On motion of a party, a person from whom discovery is sought, or a person named or

depicted in an item sought to be discovered, the court, for good cause shown, may order that

specified disclosures be denied or restricted in any manner that justice requires." If the

Defendants can identifu one substantive difference between these two provisions' standards and

grants of court authority, the Defendants certainly have not articulated it anywhere in their
Motion. Moreover, the Defendants support their claim that Maryland "ggly' uses protective

orders for witness protection with the bald case-law sunmary that "the [C]ourt [of Appeals] . . .

has specifically refrained from discussing other uses of a protective order," grving the citation for

this assertion as, "See Coleman v. State, 321 Md. 586 (1991)." See it for what? See it at what

specific page? The State's review of Coleman finds not a single appellate utterance resembling

the Defendants' statement. Perhaps the Defendants distortedly mean by "specifically refrained"

that the issue was not presented on appeal and has never been in a reported Maryland opinion,

for that would be a correct statement of law. To argue from the lack of precedent, however, that
Maryland's appellate courts have limited the use of protective orders "only'' to witness

protection simply stretches accuracy beyond its breaking point.

Continuing in this vein, the Defendants' again transcend legal reality with their

contention that the State has suggested a "far-fetched notion" that Seattle Times supports the use

of a protective order as the proper means to restrict a party's public release of discovery to

prevent unfair prejudicial publicity. How does Seattle Times not support such a use? That was

largely the point of the case, and the State discusses it at length because the case provides the

constitutional standard for reviewing restrictions on litigant dissemination of discovery using the

same "good cause" standard as Maryland's Rule 4-263(m). Seattle Times Co. v. Rhinehart,467

U.S. 20, 28-29 (1984) ("We granted certiorari to resolve the conflict" among Circuit and state

courts over how discovery protective orders should be analyzed under First Amendment

jurisprudence.); see also id. at 35-36 ("The prevention of the abuse that can attend the coerced

production of information under a State's discovery rule is sufficient justification for the

authonzation of protective orders. [. . .] The unique character of the discovery process requires

that the trial court have substantial latitude to fashion protective orders.").

Second, the Defendants insist that the State's proposed protective order must be founded

upon concerns that the public dissemination of the discovery material would result in

"oppression, harassment, reprisals . . . , [or] damage [to] the reputation or privacy interests of
those the State seeks to protect . . . ." Def. Jt. Mot. in Opposition at 13. This narrow view of
protective order justifications seems to flow in part from a confused analysis that superimposes

Maryland's civil protective order provision onto its criminal counterpart. Indeed, Rule 2-403(a)

provides that "[o]n motion of a party, a person from whom discovery is sought, or a person

named or depicted in an item sought to be discovered, and for good cause shown, the court may
enter any order that justice requires to protect aparty or person from annoyance, embarrassment,

oppression, or undue burden or expense ... ." By contrast, Rule a-263(m) simply states in

relevant part that "the court, for good cause shown, may order that specified disclosures be

denied or restricted in any manner that justice requires" but does not go on to list any specific

justifications. In construing this difference, oothe

promulgating body . . . , the Maryland Court of
Appeals . . . , is presumed to have meant what it said and said what it meant when it adopted the

Rule." Worsham v. Greenfield,435 Md. 349, 359 (2013) (internal quotation marks removed). If
the Court wanted criminal discovery protective orders limited in the same fashion as civil

protective orders, the Court certainly knew how to draft the appropriate language and, therefore,

must be presumed to have deliberately used open-ended language to permit Rule 4-263(m) to

cover a flexible range of sifuations that may trigger its use. In its Motion, the State has asserted

that a protective order is needed in these cases to preserve the integrity of the adversarial trial

system by preventing selectively leaked discovery materials from undermining the ability to find

impartial jurors and then fairly try these cases given the intense press interest and the defense's

conduct to date. Nothing in Rule 4-263(m)'s terms even remotely implies that this basis cannot

provide good cause for a protective order.

The Defendants' confusion also stems from their apparent misunderstanding of the

relevant constitutional standard. The Defendants assert that the State's articulated basis for the

protective order fails to justiff the proposed restrictions sufficiently to outweigh the Defendants'

right of free expression under the First Amendment. Def. Jt. Mot. in Opposition at 11.

Specifically, the Defendants suggest that the State's asserted basis fails to constitute "an
important or substantial governmental interest unrelated to the suppression of expression" under

a First Amendment analysis and argue that Seattle Times does not support the State's Motion
because that case, as they read it, involved only narrow "economic and privacy interests" and

concerns over party "annoyance, ernbarrassmeot, and oppression . . ." Def. Jt. Mot. in

Opposition at l l.

The State can only conclude from these assertions that the Defendants misread the

rationale of Seattle Times. While undoubtedly Rhinehart and the Aquarian Foundation members

who were parties to that case were concerned about their own economic and privacy interests,

the Supreme Court was concerned with the government interests furthered by the protective

order rule itself. As the First Circuit later described, the Seattle Times "Court applied the

heightened scrutiny test [which] applies to incidental restrictions on First Amendment liberties

by government action in furtherance of legitimate and substantial state interests other than

suppression of expression." Anderson v. Cryovac, lnc.,805 F.zd 1,6 (lu Cir. 1986). The

Supreme Court found that the protective order rule furthered such an interest, namely the

govemment's "substantial interest in preventing . . . abuse of its processes" related to discovery.

Seattle Times,467 U.S. at 35; see also Cryovac, 805 F.2d at 6 (describing that in Seattle Times

"[t]he Court found that protective orders further the important govemmental interest of

preventing abuse of the pretrial discovery process"). This is the very interest that the State has

asserted in its proposed use of Rule 4-263(mlpreventing the abuse of the discovery process

that would come from pretrial public dissemination of discovery materials and the impact that

public consumption of those materials would have on the ability of the government to fairly

administer justice in these cases.

Third, the Defendants claim that "the public's interest in the information [contained in

discovery] wholly outweighs any purported basis for the issuance of a protective order
designating the discovery materials as classified." Def. Jt. Mot. in Opposition at 2-3. Putting
aside that the State's proposed order would designate discovery materials as "confidential," not

classified, the Defendants' attempt to assert the rights of the public derives from yet another

misconception of the law. While no one questions that the public has a "constitutional right of

access to court proceedings and documents," as well as a presumptive "common law right to

inspect and copy public records and documents, including judicial documents," simply put,

"there is no right of access to discovery materials." U.S. v. Smith, 985 F. Supp. 2d 506

(S.D.N.Y. 2013) (quoting Nixon,435 U.S. at 597) (internal quotation marks deleted). Indeed,

"[b]ecause discovery is a private process between the parties to an action (even if governed by
specific rules and managed by trial judges), courts generally view the documents or materials

shared between them as outside the judicial function and therefore not presumptively

accessible." Id. at 519 (and collecting numerous cases stating the same principle). When,

therefore, the Defendants claim that in the absence of a protective order the discovery in these

cases is "otherwise public and non-confidentia1," Def. Jt. Mot, in Opposition at 5, they plainly

misstate the law.

Certainly, the federal courts in determining good cause for a protective order will

"balance the public's interest in the information [contained in discovery] against the injuries that

disclosure would cause," U.S. v. Carriles, 654 F. Supp. 2d 557, 566 (W.D. Tex. 2009), but the

public's interest in discovery materials must be viewed within the context of the particular case

and for the limited weight it carries relative to the right of both parties to receive a fair trial and

to the danger of prejudicing the jury pool. See e.g. Cryovac, 805 F.2d at 8 (discussing the district

court's appropriate exception to a protective order that permitted disclosures to public health and

environmental authorities in a case irwolving allegations that a city's water supply had been

poisoned by toxic chemicals) ; see also U.S. v. White,2004 U.S. Dist. LEXIS 27342at *5 (E.D.
Pa. 2004) (noting that '[i]f the prosecutors and/or defense counsel had a practice of disclosing

discovery materials to the media, this could be disruptive to a fair trial for all parties . . . .").

Within this proper framework, the Defendants' cries about a lack of "transparency," Def. Jt. Mot.

in Opposition at 19, can only be seen as disingenuous. The State agrees with the defense that*at

some point, due process requires the disclosure of discovery materials," id. at 5, but whereas the

Defendants apparently believe that point is now, the State prefers the more traditional time-at

trial in a court of law.

Indeed, the State cannot help but note the irony in the Defendants' repeated references to

the infamous case of Sheppard v. Maxwell, 384 U.S. 333 (1966), which the Defendants cite for

the virtues of a "responsible press" and freedom of public discussion of a criminal case. Def. Jt.

Mot. in Opposition at 3. In Sheppard, the press published claims that Sam Sheppard had refused

a lie detector test or injection with truth serum, pre-indictment editorials that Sheppard was

"getting away with murder," articles that repeatedly "emphasized evidence that tended to

incriminate Sheppard," allegations of damning "scientific tests at the Sheppard home" that were

never introduced at fral, and front page headlines asking, "Why Isn't Sam Sheppard in Jail?"

Sheppard, 384 U.S. at 339-342. During jury selection, the newspapers published the

veniremen's names and addresses, and prospective jurors received anon)rmous letters and

telephone calls about the case. Id. at 342. The press photographed the jury, interviewed the
judge as he entered the courthouse, and surrounded Sheppard during recesses. Id. at 343-44.

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

contradicted those statements during trial, a radio broadcast called Sheppard 'oa perjurer." Id. at

347. Is this what the Defendants want to happen in their cases? Or do the Defendants' citations
to Sheppard seem almost like a Freudian slip of their true intentions to simultaneously decry

publicity while actively inciting it in a strategy designed to bolster defense preliminary motions?

After these uncfuous pleas about press and public interest, the Defendants next complain

that the State has failed to provide facts in support of its Motion and that '1he broad, limitless,

and sweeping nature of the of the [sic] requested protective order fails to consider First

Amendment protections by limiting the scope of the order so as to be no greater than necessary

to protect the interest of the integrity of the adversarial system and maintaining a fair and

impartial trial . . . ." Def. Jt. Mot. in Opposition at 12. To the contrary, the State specifically
requested a hearing to present factual evidence in support of its Motion and provided the Court

with a sampling of the evidence that will be produced at that hearing. Instead of awaiting that

hearing, however, the Defendants have prematurely assessed the State's burden of production.

Regarding the scope of the proposed protective order, the State's drafted order diligently
attempts to comply with Seattle Times. The Defendants, of course, fail to specifu in what way

the order overreaches, but if the Defendants have actual-as opposed to rhetorical-loints to

make about ways to improve the order's scope, the State will gladly work with them and the

Court to craft an improved protective order.

The State, however, will not acquiesce to the Defendants' apparent idea that they should

be permitted to release select discovery and make public statements as some sort of misguided

right of rebuttal to the press conference at which the State's Attomey announced the charges

against them. Indeed, the Defendants argue that "the State cannot now hide behind its request to

designate the [discovery] materials as confidential when it has already held a press conference

specifying the evidence of each case and how the facts therein supported the elements of each

crime charged." Def. Jt. Mot. in Opposition at 5. Moreover, the Defendants urge that the May
13, 2015, public comments made by counsel for Sgt. Alicia White, rather than indicating a

willingness to disseminate prejudicial infonnation, "are protected by Maryland Rules of

Professional Conduct 3.6(c), which allows counsel 'to make a statement that areasonable lawyer

would believe is required to protect a client from the substantial undue prejudicial effect of

recent publicity not initiated by the lawyers or the lawyer's client." Def. Jt. Mot. in Opposition

at 6.

To the contrary, a review of the transcript of the State's Attorney's press conference,

which the Defendants have provided in their Motion, reveals nothing that can remotely be

charactqized as "specifying the evidence." This conclusion readily presents itself from a simple

comparison of the narrative in the statement of probable cause that was read at the press

conference with the State's Index of Information Produced in Discovery filed on June 26,2015.

If the State's Attorney had actually specified the evidence, the press conference would have

lasted for days. Moreover, modern criminal 1aw no longer embraces the Defendants' apparent

preference for the ancient code of retaliation (lex talionis) to govern their perceived grievances

about publicity. Due process grants the Defendants "no constitutional right to use the media to

influence public opinion conceming [their] case[s] so as to gain an advantage at trial." U.S. v.

Lindh, 198 F. Supp. 2d 739,743 (8.D. Ya. 2002'5. Likewise, Rule 3.6 does nothing to authorize

Sgt. White's attomey's staternents that she o'was destined by Vanguard and other police officers

to break the glass ceiling for females" and that "[s]he's your sister, she's your cousin, she's your

friend, she's your neighbor." In fact, the Comments to Rule 3.6 expressly prohibit these types of
statements: "There are . . certain subjects that are more likely than not to have a material

prejudicial effect on a proceeding, particularly when they refer to . . . a criminal matter, [such as

those relating tol the character, credibility, [or] reputation . . of a party." Md. Lawyer's R.

10
Profl Conduct 3.6, Comment 5 (2015). The Defendants in no way articulate how such

statements were necessary to mitigate anything the State or the press has said about Sgt. White.

lnstead, they merely demonstrate the likelihood that the Defendants will continue to play to the

press.

Indeed, to that end, the Defendants' Motion atternpts to re-write their public statetrlent

about the leak of Mr. Gray's autopsy report. In their Motion, the Defendants describe their press

release regarding the autopsy as saying, "[t]he Joint statement correctly and accurately stated the

position that two entities had exclusive control over the autopsy: The State and the Medical

Examiner." Def. Jt. Mot. in Opposition at 6. They further assert that their point was that those

two entities "had responsibility for the protection of the autopsy." Id. In actuality, their Joint
Statement said, "[i]t was our understanding that the only copy of the autopsy was in the
possession of the State's Attorney and the State Medical Examiner." St.'s Ex. 1 of St.'s Supp. to

Mot. for Protective Order (emphasis added). Given that the Defendants were aware that the

State's Attomey had gtven a copy of the autopsy to the Baltimore Police Departrnent, the

statement that the State's Attomey and the Medical Examiner had "the only copy''of the autopsy

was completely inaccurate. The fact that when called out for their willing[ess to misrepresent

facts publicly, the Defendants then misrepresented that their statement referred to "exclusive

control" and "responsibility fot'' only further illustrates the State's point and demonstrates the

need for a protective order in these cases. [1ast paragraph deleted]

Wherefore, the State moves this Honorable Court to schedule a hearing to consider

evidsnce in support of this Motion and, following that hearing, to grant this Motion and issue the

previously attached proposed order.

Ll
 Respectfu lly submitted,

Marilyn J. Mosby

State's Attorney

The SunTrust Bank Building

Baltimore, Maryland 21202
(443) 984-60 1 2 (telephone)
(443) 98 4- 62 5 6 (facsimile)
j b le ds o e@S tat to rney. o rg

Matthew Pillion (#653 49 l)

Assistant State's Attorney
120 East Baltimore Street
The SunTrust Bank Building
Baltimore, Maryland 21202
(443) 984-6045 (telephone)
(443) 9 8 4- 62 52 (facsimile)
mp i I I i on@ t at t orne]). org
s

CERTIFICATE OF SERVICE

I hereby certify that on this 8th day of July, 2015, a copy of the State's Response to
Defendants' Joint Motion in Opposition to State's Motion for Protective Order and State's
Renewed Request for Hearing was mailed and e-mailed to:

Matthew B. Fraling, III Andrew Jay Graham

Sean Malone Kramon & Graham, P.A.
Harris Jones & Malone, LLC 1 South Street Suite 2600
2423 Maryland Avenue, Suite 100 Baltimore, MD 21202
Baltimore, MD 21218 4t0-7s2-6030
(410) 366-1s00 AGraham@kg-law.com
matthew. fraling@mdlobbyist. com Attorney for Officer Caesar Goodson
Attorneys for Officer Caesar Goodson
L2
Catherine Flynn
Mead, Flpn & Gray, P.A.
One North Charles Street, Suite 2470
Baltimore, MD 21201
(410)727-6400
cfl ynn@meadandfl ynn. com
Attomey for Officer Garrett Miller
Joseph Murtha
Murtha, Psoras & Lanasa, LLC
1301 York Road, Suite 200
Lutherville, Maryland 21 093
(410) s83-6e69
j murtha@mpllawyers. com
Attorney for OfEcerWilliam Porter
Michael Belsky
ChazBall
Schlachman, Belsky & Weiner, P.A.
300 East Lombard Street, Suite 1100
Baltimore, MD 21202
(410) 4e7-8433
mbelskv@sbwlaw.com
Attomey for Lieutenant Brian Rice
13
Marc L. Zayon
Roland Walker & Marc L. Zayon,P.A.
201 N. Charles Street, Suite 1700
Baltimore, Maryland 21201
(410) 727-3710
mzayon@:uralkerz ayon. com
Attorney for Officer Edward Nero
Gary Proctor
Gary E. Proctor, LLC
8 E. Mulberry St.
Baltimore, MD 21202
410-444-t500
garyeproctor@ prnail. com
Attorney for Officer William Porter
Ivan Bates
Tony Garcia
201 N. Charles Street, Suite 1900
Baltimore, Maryland 21201
(410) 814-4600
ivan@batesearcia.com
Attorney for Sergeant Alicia White
Respectfully submitted,
Deputy State's Attorney
120 East Baltimore Street
The SunTrust Bank Building
Baltimore, Maryland 21202
(443) 984-60 1 2 (telephone)
(443) 984-6256 (facsimile)
i b I eds o e @ s tat t o rnq). o rg