This week saw a flurry of motions from both the State prosecutors and defense counsel in preparation for the upcoming “Freddie Gray” trial of Baltimore Police Office Edward Nero, scheduled to begin February 22. These were primarily in limine motions, which are motions asking the court to exclude particular evidence from the trial, often because the evidence is arguably irrelevant or prejudicial.

One of these motions by Nero’s defense counsel, Marc Zayon, asks the court to prohibit the State from presenting arguments and evidence about on the issue of the legality of the spring-assisted knife the arresting officers found in Freddie Gray’s pocket. (This motion is embedded at the bottom of this post.)

The defense noted that the State had identified an expert witness on knives, presumably for the purpose of testifying on the legality, or lack thereof of Gray’s knife. Their motion seeks to prevent such evidence and argument on this issue at trial.

You may recall that in initially bringing charges against the police officers involved in Freddie Gray’s arrest and transport, State prosecutors initially argued that the claimed probable cause for that arrest–Gray’s possession of a purportedly unlawful “spring-assisted knife” — did not in fact exist because the knife in Gray’s possession was not illegal as a matter of law.

In the case of Nero specifically, the officer is charged with Second Degree Assault, two counts of Misconduct in Office, and one count of False Imprisonment.

In the Statement of Probable Cause bringing these charges, the basis for the charges is that the officers (including Nero) “failed to establish probable cause for Mr. Gray’s arrest as no crime had been committed by Mr. Gray.” This “failure to establish probable cause” for the arrest is itself based upon the claim that “The knife was not a switchblade knife and is lawful under Maryland law.”

The very foundation for the charges against Officer Nero, then, is whether the officers had a reasonable belief that they had probable cause, on any basis, for Gray’s arrest. If they did, the charges against Nero are without basis as a matter of law.

As with apparently any matter involving the office of Prosecutor Marilyn Mosby, even this relatively straight-forward issue of law and fact around probable cause and the knife soon became a miasma of confusion.

For example, Mosby claimed the knife was legal under Maryland law, but Gray was not charged for a violation of Maryland state law. Rather, he was charged for violation of Baltimore City Code Article 19 §59-22, which has stricter prohibitions on knives of this type than does Maryland state law.

In addition, even if it turned out that the knife was legal, the issue here is not whether the knife was in fact legal but whether a reasonable officer might have perceived the knife as being illegal at the time the arrest decision was made.

With prosecutors apparently realizing the weakness of their argument for lawful arrest on the basis of the lack of probable cause related to Gray’s spring-assisted knife, the State quickly distanced itself from its initial theory of the case. Instead, they began to argue that the knife was irrelevant, because in fact Gray’s arrest, for legal purposes, occurred before the police had even spotted the knife, and that it was this “arrest” that was unlawful for lack of probable cause. They quickly ran into trouble with this argument, as well, as it evidenced an utter ignorance of the legal distinctions between a police detention (or Terry stop) and an actual arrest.

We discussed many of these matters at great length at the time, including Was Freddie Gray’s Arrest Lawful? Almost Certainly, Freddie Gray’s Knife – Why is Prosecutor Claiming Unlawful Arrest?, and Confirmed – Freddie Gray’s Knife WAS Illegal.

Here we’ll simply highlight some of the key points made in the defense motion to prohibit evidence and argument around the knife, and point out the ongoing and cynically amusing hypocrisy of Prosecutor Mosby.

Defense counsel argues that given the State’s change in argument re: the legality of the arrest–that the purportedly unlawful arrest occurred before the knife was spotted–whether the knife was lawful or not is irrelevant to the State’s theory of the case. In paragraph 7 of its motion, the defense quotes the State current argument:

The State has now affirmatively asserted that “Mr. Gray was arrested prior to the discovery of the knife in his pocket, such that the legality of the knife is largely immaterial except to rebut any claims the Defendants may raise about their beliefs and the reasonableness of those beliefs.”

Clearly, if even the State is arguing that the knife is largely immaterial, there can be little argument made that it is relevant and therefore admissible.

But what if the State decides to switch back to its original theory, that the knife was the basis for the officer’s claimed probable cause, that the knife was in fact lawful, and that therefore the arrest was unlawful?

The defense counsel for Officer Nero notes that even then the legality of the knife is irrelevant for purposes of trying Nero. Why? Because it was Nero’s colleague, Officer Miller, who noted in the Application for Statement of Charges against Gray that the knife was the basis for Gray’s arrest, and it was the Court Commissioner who made the legal determination that the knife was unlawful. Neither of these findings was made by Nero, who was merely assisting Miller and the other officers in the arrest of Gray.

Indeed, even if it were determined that the knife was legal under the City of Baltimore’s more restrictive constraints, at worst this amounts to a mistake of law on the part of the arresting officers, including Nero. Absent a demonstration of malice, the solution for a mistake of law of this type by a police officer is simply the suppression of that evidence from trial.

Perhaps the most cutting part of the motion, however, is found in the last two paragraphs of the defense motion.

Here, they note the blatant hypocrisy of Prosecutor Mosby should she seek to revert to her initial claim that Freddie Gray’s “spring-assisted knife” is lawful, and therefore could not be the lawful basis for probable cause of his arrest.

Where would this hypocrisy found? In the fact that following Gray’s arrest and the State’s claims that Gray’s knife was lawful, Prosecutor Mosby’s office has continued to charge and criminally prosecute defendants on the basis that they were found in possession of a “spring assisted knife.”

In illustration of this hypocrisy, the defense attached no fewer than 14 examples of prosecutions premised on possession of a “spring assisted knife” by Mosby’s office following their “lawful knife” claims in the Gray case.

Here’s just one example, in which the first charge states that the defendant, Tyrell Siler-Moore, “… DID WEAR AND CARRY A SPRING ASSISTED KNIFE, A DANGEROUS WEAPON, CONCEALED ON AND ABOUT HIS PERSON.”

Clearly, if Mosby believes that possession of a spring-assisted knife is sufficient basis to bring a prosecution by presumably skilled and capable prosecuting attorneys, it is surely sufficient as a matter of law for a police officer’s reasonable perception of probable cause for an arrest.

As promised, here is the entire defense motion in limine on this issue, including the attached examples of Mosby’s continued prosecutions of “spring-assisted knife” cases:

–-Andrew, @LawSelfDefense

Attorney Andrew Branca and his firm Law of Self Defense have been providing internationally-recognized expertise in American self-defense law for almost 20 years in the form of blogging, books, live seminars & online training (both accredited for CLE), public speaking engagements, and individualized legal consultation.

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