Yesterday saw the start of the latest trial related to the arrest and transport of Freddie Gray on April 12, 2015. Gray would die a week after his arrest, and his death was promptly used as a justification for days of violent rioting, looting, and arson in Baltimore.

This time the defendant is Baltimore Police Officer Edward Nero, one of a total of six officers against whom criminal charges were brought following Gray’s death.

The prosecution is being led by Chief Deputy State’s Attorney Michael Schatzow, an attorney with relatively little criminal law experience. Schatzow previously led the failed prosecution of Officer William Porter in the first “Freddie Gray” trial earlier this year. (Porter’s trial ended in a hung jury, and prosecutors have announced they intend to re-try him.)

Nero is being represented by defense attorney Marc Zayon.

State’s Attorney Marilyn Mosby, Schatzow’s boss, appears to have no day-to-day role in the prosecution, although she was personally present in the court room’s spectator seats for the first day of trial yesterday.

Officer Nero has opted for a “bench trial,” meaning that there will be no jury. Instead, trial judge Barry Williams will assume the roles of both judge, making decisions of law, and the jury, making factual determinations.

Nero has been charged with several crimes related to two distinct phases of Gray’s police custody—first, the initial arrest ; and second, the loading of Gray into the police van in which Gray was to suffer his eventually mortal injury.

In particular, Nero has been charged with second-degree assault and misconduct in regards to his involvement in Gray’s initial arrest; and reckless endangerment and a second count of misconduct for the manner in which he helped load Gray into the police van.

Interestingly, Nero played virtually no role in either of these phases. Rather, Nero’s participation in both phases was almost entirely ancillary. The officer has pled not guilty to all charges.

Nevertheless, here we are. So, let’s dive into the first two day’s testimony, structured in alignment with the alleged basis of the criminal charges.

Gray’s Initial Arrest

Two of the charges against Nero—second-degree assault and misconduct—are based on what the prosecution claims were unlawful acts by Nero during Gray’s initial arrest.

There were three officers involved in Gray’s initial arrest, and Nero was one of these. The other two were Lieutenant Brian Rice and Officer Garrett Miller, both of whom are also charged with crimes related to Gray’s arrest and transport. Of the three men, Nero has the least active role in Gray’s arrest.

These three officers and others were in the neighborhood of Gray’s arrest because State’s Prosecutor Marilyn Mosby had requested an increased police presence to address rampant drug dealing in the area, a neighborhood infamous for its drug trade.

It is perhaps not a coincidence that Mosby’s husband, Nick Mosby, is the political representative of that area to the City of Baltimore. A call for increased police presence in that neighborhood could reasonably be expected to have benefited Nick Mosby’s constituency generally and his own political fortunes particularly.

It was Lieutenant Rice, the senior officer involved in Gray’s arrest, who triggered the initial pursuit and stop of Gray. This occurred when Gray made eye-contact with Rice in that high-crime neighborhood, and immediately began to flee. Such conduct has long been held by the courts, including the US Supreme Court, to amount to sufficient reasonable suspicion to warrant a Terry stop (see Terry v. Ohio, 392 U.S. 1, US Supreme Court 1968).

We covered the nuances of a Terry stop, an actual arrest, and similar issues in some detail in a previous post: Freddie Gray Case: Prosecutor Doubles Down On Wrong Law, but in brief a Terry stop is permitted when a police officer has and articulable reasonable suspicion that a suspect is engaged in unlawful activity.

The purpose of the stop, which is brief and relatively non-intrusive compared to an actual arrest, is to determine whether probable cause exists to make an actual arrest. Once a Terry stop has been initiated the officers are permitted to put their hands on the suspect for purposes of maintaining control of the suspect during the stop, and may search the suspect for weapons in the interests of public safety.

Lieutenant Rice recognized that Gray’s flight under the circumstances authorized him to initiate a Terry stop under existing legal precedent and departmental policy. Accordingly, he called over his radio for assistance, and was immediately joined by Officer Garrett Miller. Together Rice and Miller would pursue Gray, halt his flight, and initiate a Terry stop. During that stop a knife was found in Gray’s possession, of a spring-assisted type determined by the officers to be unlawful under Baltimore City ordnance. It was on the charge of violating this city knife ordnance that Gray was arrested.

Officer Nero played no role in Gray’s pursuit or stop, and virtually no role in Gray’s arrest. Gray had already been pursued and halted by Officer Garrett and the Terry stop initiated by Rice and Garrett by the time that Nero walked up to the scene pushing a pair of police bicycles (one his own, the other having been left behind by Garrett in the course of the pursuit of Gray). Had Nero not been present at all Gray would still have been arrested in the same manner by Rice and Garrett. Indeed, today one of the state’s own witnesses, Brandon Ross, a friend of Gray’s who observed Gray’s arrest, testified to seeing Nero arrive at the stop with the two bikes only after Gray had already been handcuffed. (It is notable that Ross is currently being held at the Baltimore City Detention Center while awaiting trial on an assault charge from March. Immediately after his testimony he was handcuffed and removed from the courtroom.)

Indeed, both the charging document and the criminal complaint against Freddie Gray were executed by Officer Miller, and bear no mention of Officer Nero at all.

Nevertheless, Nero finds himself on trial for second-degree assault and misconduct.

The prosecutor’s argument is that Nero put his hands on Gray without legal justification. But doesn’t the Terry stop provide that legal justification? In this case, the prosecution appears to be arguing, Nero never made an independent determination of whether a Terry stop of Gray was lawfully authorized under the circumstances.

Remember, it was Lieutenant rice who initiated the pursuit and Terry stop of Gray, based upon observing Gray flee upon eye-contact with Rice. Nero himself did not personally observe this conduct by Gray, but merely responded to Lieutenant Rice’s radio call for assistance. Nero simply deferred to his superior’s assessment that a Terry stop was warranted.

Prosecutor Schatzow explicitly argued this position in his opening statement yesterday, claiming that Nero “had no idea what was suspected, and he made no effort to find out. Their plan was to … arrest him, and the decide whether to unarrest him.”

Because of his lack of personal knowledge of Gray’s conduct, the prosecution argues, Nero could not have formed a reasonable subjective basis on which to determine that a Terry stop of Gray was warranted. This means, the prosecution argues, that Nero could not have a Terry stop justification for his touching of Gray, and therefore his touching of Gray constitutes second-degree assault, as well as misconduct.

In the defense opening statement defense counsel Marc Zayon noted that his client was simply responding to his superior’s radio call for assistance when he got involved in Gray’s arrest, as he is trained and required to do by department policy.

Further, the defense noted that second-degree assault requires that the alleged touching be unconsented to by the purported victim. Here, the defense argues that the only time Nero touched Gray was in response to Gray’s requests for his inhaler, as Gray claimed to be having difficulty breathing.

Gray’s request for his inhaler indicated his consent to Nero engaging in the touching necessary to obtain the inhaler from Gray’s person. Nero, in addition to being a police officer, has been trained as a fireman and Emergency Medical Technician (EMT), and was merely seeking to assist Gray.

In his opening statement Attorney Zayon argued that “It is clear in this case that everything that was done, not only by Officer Nero but all of the involved officers, was done correctly.” He noted that the legal standard for judging Nero’s conduct is whether he acted as would a reasonable officer under similar circumstances, and informed Judge Williams that the defense planned to present expert witnesses and other officers to testify that Nero’s actions were indeed reasonable.

Gray’s Transport in the Police Van

Numerous officers were involved in placing the non-compliant Gray into the police van. Interestingly, Officer Nero was not involved in initially placing Gray in the van. Nero’s did not become involved in Gray’s transportation until the van made a second stop to address the fact that Gray was making an enormous amount of banging noise in the rear of the van. At that second stop Officer Nero shackled Gray’s ankles, to prevent further ruckus, otherwise leaving Gray in the position the other officers had placed him, on the floor of the van.

The prosecution argument is that Nero’s act, and more particularly his omission, constitute reckless endangerment and a second count of misconduct. The prosecutor’s rationale is that these criminal charges are appropriate because of Nero’s failure to buckle Gary into the police after shackling Gray’s ankles at the second stop. In support of this argument the prosecutor points to an email sent out the very day of Gray’s arrest noting that a few days earlier the Baltimore PD had changes it’s seat belting procedure from optional to mandatory.

The defense attacked the prosecution’s argument on several grounds.

First, although the Baltimore PD confirmed that an email from the department about the seat belting policy change was sent out that day, they were unable to confirm that this email had actually been seen by Nero, and thus that he had actually been informed about the change.

The PD apparently sends out a large volume of emails on a wide variety of administrative matters to officers on a routine basis, and there was no flagging of the seat belt policy change email to indicate that it carried any exceptional importance. The defense denied that Nero had ever seen the email, and noted that the policy had not been announced at roll call or any other time. In fact, Nero had been off work on the days when the emails had been sent.

In any case, the defense noted, the policy is just that, a departmental policy, not a law the violation of which warrants criminal punishment. Violations of department policy are properly handled by the officer’s department, not by way of criminal prosecution.

Second, long-standing policy within the Baltimore PD is that once a suspect is placed in a van the responsibility for the welfare of that suspect transfers from the arresting officers to the van driver. In this case the van driver was Officer Caesar Goodson, not the defendant on trial, Officer Edward Nero.

Third, even the state prosecutor’s own police witness, Capt. Martin Bartness, who testified about the seat belt policy being changed to mandatory was compelled to concede on cross examination that the officers on the scene always retain the ultimate discretion to make decisions appropriate to the particular circumstances.. Captain Bartness explicitly testified yesterday that police officers “make discretionary judgments every day in our roles.” In that case the so-called mandatory rule was not, in fact, mandatory, as it remains subject to the discretion of the officers on the ground.

Such discretion is normally applied such that the standard operating procedure is followed unless there is a rational reason to not follow it. In the context of seat belting suspects into a police van, the defense argued that there were often good reasons for not doing so.

In particular, in the tight confines of the van officers were concerned about being bitten or head butted by suspects while the officer was in a constrained and vulnerable position in close proximity, and vulnerable to suffering serious bodily injury even from a handcuffed suspect.

Indeed, the defense explicitly argued in its opening statement that it would’ve been impossible to seat belt Gray & maintain officer safety because Gray was “combative, passively and actively resisting.” In addition, an angry crowd was forming, making time of the essence in moving on from the scene.

Today’s Testimony

There were only a few witnesses today, in contrast to the eight state’s witnesses who testified yesterday.

The first of today’s witnesses was Brandon Ross, mentioned above as a friend of Gray’s who is currently awaiting trial on charges of 1st and 2nd degree assault for a stabbing attack.

Ross’ testimony seems to have been unremarkable, apart from one humorous exchange with defense counsel Marc Zayon on cross examination. Asked by Zayon if the neighborhood of Grayu’s arrest was known to be a high-crime area where drugs were sold, Ross replied: “Where drugs not being sold at in Baltimore City?”

Next up was the state’s 10th witness overall, Detective Michael Boyd, with the Baltimore PD’s Force Investigation Team. It was Boyd who had interviewed Nero as part of the investigation into Gray’s arrest, transport, and death, presumably before Nero had even imagined he might be prosecuted for his actions that day. Indeed, Nero waived both his Miranda rights and police union privileges and readily agreed to the interview.

Among the statements made by Nero during the interview, as reported by Jessica Anderson and Kevin Rector of the Baltimore Sun:

Nero describes Gray as uncooperative, at initial stop when police van shows up.

Nero said Gray was loaded into the van, placed on the bench without a seatbelt. Van went down the street to get away from crowd forming.

Nero said in recording several people in crowd asked why the officers had tased Gray, even though Gray wasn’t tased.

Gray didn’t want to move, didn’t appear hurt. “It seemed as though he just didn’t want to go.”

Nero said Gray was loaded into the van, placed on the bench without a seatbelt. Van went down the street to get away from crowd forming.

Nero cited his experience as EMT, said Gray was screaming and resisting, asked for inhaler, but did not appear to actually be in distress.

Nero described the scene, the crowd gathering, Gray resisting: “Everything was just happening so fast.”

The state’s next witness today was Stanford O’Neil Franklin, the executive director of Law Enforcement Against Prohibition (LEAP), and a retired state police officer.

LEAP is an advocacy group for the legalization of currently illegal drugs. In the view of LEAP, in a just world Gray should simply not have been subject to a Terry stop at all because controlled substances would not be illegal in the first place.

OK, folks, that’s all I have for today. More coverage next week when the trial resumes.

–-Andrew, @LawSelfDefense

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