Mimesis Law
22 April 2019

Freddie Gray Trial: A Constitutional One Night Stand?

May 17, 2016 (Mimesis Law) — When the police are on trial, things get confusing. On one hand, people like to see the script get flipped on the folks who are often in the news for beating citizens, shooting citizens, or making up evidence. On the other hand, the criminal justice system is never as fine or fair a system as when the police are on trial. They get the Cadillac version of due process.

The Freddie Gray trial is really turning crime and punishment on its head. The prosecutors are mowing through constitutional rights in pursuit of convictions in this case. They started with the Fifth Amendment, which doesn’t mean what it’s supposed to mean when the government wants to make a defendant be a witness. “Witness for the prosecution” and “liar” very much depend on which side of the courtroom you are sitting on.

Now the prosecutors in the Freddie Gray trial are making some interesting arguments about the amendment everybody loves to hate, the Fourth Amendment. The one that says no warrantless searches. Or at least that’s what it seemed to say. Turns out it it’s full of all kinds of exceptions. You can’t see them, but according to courts around the country, they are there.

Like whether a witness is a liar or an asset, a bad search just depends on who is arguing it. Now that the Freddie Gray prosecutors are back in action, they love the Fourth Amendment. They don’t think the cops should violate it. And the cops, of course, say they can do whatever they want on the street. At least that part is consistent with history.

Officer Edward Nero’s trial began against the backdrop of this Twilight Zone argument.

As the case against Officer Edward M. Nero opened in a windowless courtroom, it focused not on the death of Mr. Gray, the 25-year-old black man who sustained a fatal spinal injury in police custody last year, but on his arrest, with prosecutors contending that his rights were violated by police officers even before he was injured.

“The defendant’s conduct was not that of a reasonable police officer,” said a prosecutor, Michael Schatzow, who accused Officer Nero of failing to follow procedures designed to ensure Fourth Amendment protections against unlawful search and seizure.

“He deprived Mr. Gray of his liberty,” Mr. Schatzow added.

Funny argument for a prosecutor to make. Most have never met a search they didn’t like. Until now. But the case is tough. Seems like Nero wasn’t actually around for Gray’s death, so he is more or less being prosecuted for his actions related to Gray’s arrest.

Officer Nero … is not charged directly with the death of Mr. Gray and was not present for the van ride in which prosecutors and defense lawyers have said Mr. Gray was injured. Instead, he faces charges of second-degree assault, misconduct while in office and reckless endangerment for his suspected role in Mr. Gray’s initial arrest.

Not only are the prosecutors arguing Nero violated Gray’s Fourth Amendment rights, but they are actually prosecuting him for it.

For the assault charge, prosecutors are deploying an unusual legal theory: that the officers who arrested Mr. Gray exceeded the scope of their authority during their encounter with him, and that, as a result, the physical contact they made with him amounted to assault.

What’s not to love about that argument? Other than the fact it’s doubtful it will ever be seen again. If everybody starts getting all caught up in things like lawful arrests and respecting the right to be free from unreasonable search and seizure, how will the police arrest criminals?

According to “experts” these are tough questions. University of Maryland law professor Doug Colbert had an interesting take on the situation:

“The defense would always assert that Officer Nero had the discretion to do what most officers would have done,” he said. “The question becomes will the judge hold the officer to a standard of reasonableness as the police orders require, or is it reasonable compared to what other officers in Baltimore city would do?”

They could also consider whether it’s reasonable under the United States Constitution, but it’s understandable these prosecutors don’t want get too lovey-dovey with the Constitution, lest their next trial be against a real live criminal instead of a police officer. The prosecution expert, Neill Franklin, says violating someone’s constitutional rights should take place as quickly as possible:

Schatzow and Nero’s attorney, Marc Zayon, have sparred over whether the actions of Nero and the other officers involved in Gray’s arrest were allowed under a “Terry stop.” The Supreme Court has ruled that officers can detain someone briefly if they have reasonable suspicion that the person has been involved in a crime.

On the witness stand, Franklin told Schatzow that such stops should be as brief as possible.

“We’re talking about the Fourth Amendment; we’re talking about constitutional rights,” Franklin said. “It’s a traumatic event to be stopped in public, to be searched in public, and it should be conducted as fast as possible.”

But on cross-examination by Zayon, Franklin conceded that the appropriateness of an officer’s actions depend on the circumstances of the stop, which may vary.

The prosecutors should lose this case. Here’s why. The Fourth Circuit Court of Appeals, which covers Baltimore, has described when these Terry stops are appropriate:

Under Terry v. Ohio, an officer may conduct a brief investigatory stop where the officer has reasonable suspicion that criminal activity may be afoot. A Terry stop must be based on “at least a minimal level of objective justification,” but the standard for reasonable suspicion is less demanding than for probable cause.

In assessing a Terry stop’s validity, we consider the totality of the circumstances. Thus, factors which by themselves suggest only innocent conduct may amount to reasonable suspicion when taken together. Moreover, our determination of reasonable suspicion must give due weight to common sense judgments reached by officers in light of their experience and training. While we require more than a mere “hunch” to justify a stop, we also credit the “practical experience of officers who observe on a daily basis what transpires on the street.” (Citations omitted.)

Maryland state courts have used a similarly wishy-washy flexible standard for when police can detain somebody.

The concept of reasonable suspicion purposefully is fluid because like probable cause, [it] is not readily, or even usefully, reduced to a neat set of legal rules.

Basically, if the common sense street smarts of a cop reach the minimum level for suspecting “criminal activity is afoot,” search and detain. The courts have the cops’ back. And so do prosecutors. Except for when they don’t.

Officer Nero is being prosecuted for violating a rule courts have purposefully left as vague as possible in order to give police the most flexibility. Prosecutors have been complicit in this, if not entirely responsible. Rest assured no criminal defendant ever told a court the police should have greater flexibility to stop and search him.

The prosecutors in Baltimore love the Constitution, as long as it’s loving them back. Wonder what will happen when these trials are over and the police are back in the hero’s spot? Hopefully the prosecutors’ love affair with the Constitution doesn’t turn out to be a one-night stand.

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