Mimesis Law
19 February 2019

Officer Edward Nero Acquitted In Freddie Gray Trial

May 24, 2016 (Mimesis Law) – After Freddie Gray’s death in police custody, the city of Baltimore burned. Then it paid off, settling the case with Gray’s family for over six million dollars.

The riots were not the end of the story. Neither was the settlement. People wanted more, and as Maryland State Delegate Curt Anderson pointed out, it would take the criminal justice system to accomplish that:

Del. Curt Anderson, a Baltimore Democrat, rejected the idea that the settlement could help bring peace to the city. Baltimore will be calm when there is “justice for Freddie Gray,” he said. That means “trials, well reported, well attended, and decisions that were well reasoned as a result. I am not seeing any signs out there saying, ‘Freddie Gray’s family needs a payday.’ I see signs that say, ‘Justice for Freddie Gray.'”

The officers involved in Gray’s arrest and transport to jail on the day of his death were arrested on a variety of charges, ranging from reckless endangerment to second-degree murder. After two trials related to Gray’s death, the prosecution is turning out to be a bust.

Yesterday, the second trial involving these officers ended in an acquittal for Officer Edward Nero. Based on the prosecution’s theory, the result is not surprising. Prosecutors charged Nero with assault, reckless endangerment, and two counts of misconduct in office.

Prosecutors argued Nero assaulted Gray by arresting him without probable cause. It’s nice to see prosecutors recognizing that police officers make such mistakes. It’s even nicer to see them recognizing that not every interaction with police is automatically supported by the malleable theory known as probable cause. Of course, it remains to be seen if Baltimore prosecutors will continue to scrutinize their officers’ conduct, or if this was a one-time deal brought out to appease the rioting citizens of the city.

In the assault case against Nero, prosecutors claimed he acted beyond the scope of his authority in arresting Gray. If he shouldn’t have arrested him, the contact resulting from that arrest constitutes an assault. The reckless endangerment resulted from Nero’s failure to fasten Gray’s seatbelt in the police van that was taking Gray to jail.

The initial reaction to this prosecution was cheering. It seemed like poetic justice when police officers were prosecuted, even if it was a weak case. But a dilemma arises with that weak case. How does an unfair trial benefit anyone? While it’s easy to claim the police should get a taste of their own medicine, all that does is reinforce the idea that the fairness of a prosecution should turn with the whim of the people. What makes us outraged today should not dictate who goes on trial tomorrow.

An exchange between Judge Barry Williams and the prosecutors in Nero’s trial is a revealing statement about how little thought was put into this prosecution:

Williams last week aggressively questioned prosecutors about their assertion that Nero and other officers assaulted Gray by touching him without reasonable suspicion or probable cause.

Prosecutor Janice Bledsoe argued that searching and handcuffing Gray constituted an assault.

“You are saying an arrest without probable cause is a misconduct-in-office charge — is a crime?” the judge asked. “So you say if you arrest someone without probable cause, it’s a crime?”

“Yes,” Bledsoe responded.

Williams at one point said: “If you touch someone, it could be assault, it could be a hug.”

Michael Schatzow, chief deputy state’s attorney, later told the judge that “not every arrest that occurs without probable cause is a crime.” But he added that arrests in which the actions of the officer “are not objectively reasonable” are criminal.

Schatzow’s claim is clever, because it avoids actually saying anything. Courts have defined the idea of “objectively reasonable” about as clearly as they have defined “probable cause.” Keeping the terms loose helps when a prosecutor needs to back up anything a cop does. Guess what? It’s going to offer just as much protection when the prosecutor turns on the cop and reaps exactly what he sowed.

But even with the creative prosecution theories, the facts of the case against Nero failed. Judge Williams found that Nero was not present for the initial arrest of Gray. Since he didn’t actually make the arrest, it would be hard to hold him responsible for an arrest unsupported by probable cause, even if that turned out to be a crime. Similarly, the reckless endangerment charge was based on the failure to follow a police directive to seatbelt arrestees. The directive had been sent out just three days before the arrest and it was questionable whether Nero had even received it.

Garrett Miller, the officer who was responsible for Gray’s arrest, testified Nero was not involved in that initial arrest. Miller isn’t in danger of prosecution though, because the prosecutors gave him immunity in order to force his testimony. The prosecutors’ own witness didn’t support their case.

Prosecutors then turned to the old favorite of accomplice liability, which Judge Williams quickly shut down.

Prosecutors also argued Nero could be convicted on under a theory of “accessory liability,” which Williams said would require showing Nero knew a crime was being committed and either participated or deliberately allowed it to continue. [Prosecutor] Bledsoe had argued while there was no case law to support the argument, there was also none prohibiting it.

Williams said it was “not an appropriate application of the law.”

After two trials in Gray’s death, this prosecution is turning out to be a huge waste of time. So far, nothing has been accomplished through these ill-advised cases. Police union officials have latched on to the result to claim victimhood:

“Being falsely accused of a crime and being prosecuted for reasons that have nothing to do with justice is a horror that no person should ever have to endure.” said Baltimore Fraternal Order of Police president Gene Ryan in a statement to the media.

Thanks, Gene. Maybe you should have that posted on the wall in the police station. Or engraved on your guns. Or maybe just remember it once in a while.

Reaction to the verdict revealed the real reason behind this prosecution. Somebody needs to be held accountable for the death of Freddie Gray and somebody needs to be held accountable for a police department which the Baltimore community doesn’t trust. Nero, and the officers on trial, are the easiest target.

The criminal justice system doesn’t exist to vindicate causes, as much as we want to prosecute every problem out of existence. Billy Murphy, the Gray family attorney, recognized the importance of this verdict in relation to the criminal justice system.

I’m very proud of Judge Williams standing head and shoulders above most people.  Under similar circumstances, he may have bent to the pressure, tremendous pressure, to do in this case what the black community wanted him to do. So my hat’s off to him.

There are five other cases. Let’s be calm and patient to determine their outcome before we have any further to do about this matter. What we do know here is that he heard all of the evidence presented, he considered it all – both those facts that were in favor of the state, those facts that were in the favor of the defense – and he ruled in accordance with the law in a way that only the judge who could hear all of the evidence and knows all of the law could do. And again I commend him for not bending to public opinion, whether it came from either the white or the black community.

Murphy is right. It’s easy to spout opinions without the slightest bit of knowledge. It’s easy to think the fairness of a trial should be subservient to the public’s cause of the day. But in a criminal court, the only thing that matters is a fair trial, no matter who is on trial.

2 Comments on this post.

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  • Scott Jacobs
    24 May 2016 at 11:27 am - Reply

    So the guy that could have been charged like Nero was can’t be charged because he got immunity to testify that Nero wasn’t involved in what the Prosecutors said he was involved in.

    Am I supposed to think the DA rigged this one like that?

  • Leonard
    24 May 2016 at 12:18 pm - Reply

    In this particular case, this officer should have never been charged. This was simply a show trial designed to placate the citizens of Baltimore. No judge or jury is going to convict and officer exercising their judgment to execute an arrest….ever. And the prosecutor knew it! An if the officer was convicted here, it would have been over turned on appeal.