Judge has questions for Nero prosecutors during closing arguments

Listen to this article

Closing arguments in the case against one of the officers charged in connection with the death of Freddie Gray took on an appellate feel Thursday morning as attorneys debated legal theories not just with each other but with the judge.

Officer Edward Nero, charged with second-degree assault, reckless endangerment and misconduct in office, elected to have a bench trial in front of Baltimore City Circuit Judge Barry Williams, who pushed both sides – but especially prosecutors – Thursday to explain their reasoning and commit to arguments without hedging.

Williams will announce his verdict in the case at 10:30 a.m. Monday.

Prosecutors have alleged that Nero committed assault by arresting Gray without probable cause, and experts on both sides testified during the trial about police procedures for detaining a suspect. But Deputy State’s Attorney Janice Bledsoe claimed Thursday several “touchings” occurred between Gray’s initial detention and a search of his person that, if not justified, constitute assault, a statement challenged by Williams.

“I always believed… that it was the initial detaining of Mr. Gray [without probable cause] that was the assault,” the judge said.

In asking Bledsoe to define when the assault began and ended to better understand the state’s argument, Williams was identifying a weakness in their case, according to David Jaros, a University of Baltimore School of Law professor who was in the courtroom.

“Not necessarily a fatal weakness,” Jaros said, “but a problem.”

Probable cause

Officer Garrett Miller, who has also been charged in connection with Gray’s death, previously testified he was the active arresting officer and Nero merely assisted him. Bledsoe argued Nero was an accomplice to an assault by Miller when he was not touching Gray.

Williams broke in and asked Bledsoe why she was bringing up accomplice liability when Nero was not charged with conspiracy.

“It’s a legal argument that we can use,” Bledsoe responded.

The prosecutor also told Williams one of the misconduct in office charges against Nero stems from his arrest of Gray without probable cause. But Williams pushed back on that theory.

“You’re saying any time there is an arrest without probable cause, it is a crime?” he asked.

Bledsoe initially said it depended on the circumstances but, when pressed, appeared to agree that was the state’s theory.

Chief Deputy State’s Attorney Michael Schatzow clarified in his rebuttal that every arrest without probable cause is not a crime but it can be if the arrest is not objectively reasonable.

Bledsoe also told Williams that Nero was guilty of reckless endangerment as well as another misconduct charge for not securing Gray with a seat belt in the police transport wagon which violated then-new Baltimore Police Department general orders. But she conceded the state had no evidence Nero had read the new orders, which were emailed three days before the incident.

Nero had a duty to keep someone in his custody safe, according to Bledsoe, and “just didn’t care.”

Schatzow returned to this argument in his rebuttal, and Williams questioned when Nero relinquished custody to the driver of the police transport van, Officer Caesar Goodson.

“Somebody’s got to use logic here, judge, and we’re counting on you,” Schatzow said.

Proving criminality

The lawyers and Williams made repeated references to the fact that Nero’s case is a criminal matter and not a civil assault case. Williams repeatedly asked prosecutors what action — or lack of action — by Nero constituted a crime.

“That may very well be the distinction on which this case rests,” Jaros said.

Marc L. Zayon, Nero’s lawyer, focused his argument on the reasonableness of Nero’s actions compared to a similarly situated officer and pointed to how quickly things happened on April 12, 2015 between when Lt. Brian Rice called out a foot chase and Nero and Miller apprehended Gray.

Zayon, of Roland Walker & Marc Zayon P.A. in Baltimore, said Nero and his colleagues were allowed to detain Gray, handcuff him and place him on his stomach during their interaction with him and case law supports their actions.

Zayon also pointed out Nero and his fellow officers did nothing that doesn’t happen all the time when police stop someone to confirm or dispel reasonable suspicion.

“They may not like it,” Zayon said, indicating prosecutors. “Normally I don’t like it and I’m arguing the other side of it.”

Prosecutors have said police were “probably” justified in chasing Gray because he fled from them unprovoked in a high crime area, a statement that caught Jaros’ attention.

“I hope it engenders a discussion about the fact that officers can handcuff and lay someone on the ground for running in Sandtown but they can’t in Roland Park,” he said.

Throughout the case, Nero’s lawyers have claimed prosecutors’ arguments were better suited to a motion to suppress evidence stemming from an illegal arrest.

Jaros said at a criminal trial with Gray as the defendant, his lawyers would have a relatively strong argument for suppression based on an illegal arrest but that the detention wasn’t egregious.

“I think there would have been an excellent suppression motion but not one that would have guaranteed success,” he said.