Screen Shot 2016-05-09 at 5.02.50 PMAs the next political show trial is set to begin on May 11, we see, yet again, that the prosecution has no actual evidence. How can we know this with certainty? Even The Baltimore Sun has all but admitted it: 

Prosecutors are expected to test a novel legal theory this week in the trial of a police officer charged in the arrest and death of Freddie Gray — that the officer didn’t have the authority to detain him and therefore committed an assault by putting him in handcuffs.

By “novel legal theory,” the Sun means “the prosecution is making up the law as it suits them.”

The allegation could have widespread implications for policing in Baltimore and Maryland. Hundreds of detainees in the city are released every year after being arrested without being charged.

This is the understatement of the year—any police officer may use whatever force is necessary to make an arrest–but more on this shortly.

credit: the

credit: the

Officer Edward M. Nero’s defense team argues that police shouldn’t be second-guessed — and face criminal charges — when they carry out their duties in good faith, while prosecutors say officers should face consequences when their actions turn out to be wrong, and the consequences are so catastrophic.

By taking a chance with this kind of case, legal experts said, Baltimore’s State’s Attorney Marilyn J. Mosby must believe she is correctly interpreting the law and has the political will.

There’s the point: “the political will.” Mosby isn’t acting in good faith. She thinks she can obtain unethical, unlawful convictions because she has the rage of the black establishment of Baltimore behind her. She is leading an angry mob to the doors of the courthouse. This is the very definition of a political show trial.

Is it a gutsy theory? Yes. Do I think most prosecutors would have brought charges on this theory? Probably not,’ said Paul Butler, a former federal prosecutor who is now a Georgetown University law professor. ‘But these are extraordinary times, and Baltimore is a city where a lot of the usual political dynamics don’t apply.

“Probably not”? Certainly not. “Political dynamics,” usual or otherwise, are not supposed to have any part in the criminal justice system.  No rational, ethical prosecutor would have brought any of the charges against the six officers, and particularly not against Nero, who, by the admissions of The Sun, had not the most insignificant part in anything that could have caused Gray harm, a case were there is no evidence any of the officers had intent to harm Freddie Gray, nor is there any evidence they acted in a way to cause harm.

The issue is simple—well-settled law—so simple no competent prosecutor would file such a case. What should happen when a police officer, acting in good faith, makes a mistake? Should he be fired? Prosecuted? Imprisoned?

In this case, the prosecution’s “novel legal theory” is thus: Officer Nero had no probable cause to arrest Freddie Gray, therefore, since Freddie Gray ended up dead, he must be prosecuted. And if Gray committed suicide, or slipped and fell and died the next day in jail? What then? Under the “novel legal theory,” would any officer on the street or in the jail be liable for criminal charges?

This “novel legal theory” is not only counter to the law—I’ll get to that shortly—but if successful, if Officer Nero were convicted and that conviction were upheld, would set a precedent that would be an absolute catastrophe for public safety throughout America.

Because police officers must be hired exclusively from the human race, they sometimes make mistakes. An officer believes he has probable cause to arrest Billy Criminal. Probable cause, as I’m sure you recall, gentle readers, is observations, facts and circumstances, that would cause a reasonable police officer to believe that a specific crime had been committed and that a specific person committed it. The Supreme Court ruling that applies in this particular case is Illinois v Wardlow (2000). 

Another related Supreme Court ruling is Terry v. Ohio (1968), which is the definitive ruling on “stop and frisk.” It affirmed the standard of reasonable suspicion, which is a lesser standard than probable cause. Interestingly, both standards apply in the Freddie Gray case, but not as the prosecution’s “novel legal theory” would suggest. The prosecution is ignoring the settled law from both Supreme Court decisions.

These are the facts of Freddie Gray’s arrest:

Officers were on foot and bike patrol in the specific area where Gray was initially seen. They were patrolling that area because Marilyn Mosby, specifically asked the police to patrol it to suppress drug activity, something for which the area was well known to citizen and police alike. The very corner from which Gray ran was notorious for drug trafficking. Mosby almost certainly made that request because her city councilman husband, Nick, happened to represent that district.

When Freddie Gray saw the officers and made eye contact with them, he immediately fled. The officers reasonably thought this suspicious for several reasons: Gray was a known petty criminal and drug dealer, and criminals, when they see the police, often shy away or walk the opposite direction, but tend to immediately turn and run only when they are in the act of committing crimes, when they are wanted on outstanding warrants, or when they are carrying drugs they don’t want to police to find. Sometimes, all three circumstances apply. In any case, Gray’s flight, even if the officers did not immediately recognize him as a convicted drug dealer, provided, under Terry and Wardlow, more than enough reasonable suspicion to justify their pursuit and brief detention of Gray.

That’s the primary effect of Terry: officers with articulable reasonable suspicion may stop people they suspect of criminal activity and hold them—including handcuffing them—for a brief time (around 15 minutes) to determine what they’re doing, identify them, or see if they are wanted. Officers may do anything necessary to secure everyone’s safety during that time, including moving the person here or there, locking them in a police vehicle, etc. They may also “frisk” them, or search their clothing, such search limited to the outer clothing—no strip searches, etc.—to find weapons, obviously for safety reasons. If an officer, conducting a frisk, feels a hard object in a pocket, he may remove it to see if it is a weapon. If he feels something in a sock he recognizes by touch as drugs, he may seize them and use them later in court.

In the case of Gray, we see a classic Terry stop. Officers patrolling a high crime area, an area they were patrolling specifically at the request of the prosecutor, pursued a known drug dealer whose behavior was the virtual definition of “suspicious.” They captured him, handcuffed him and in frisking him, actually saw a knife clipped to his belt (or pocket—accounts vary). Knowing that some kinds of knives are illegal under Baltimore city ordinance, they checked the knife, and reasonably believing it to be illegal, arrested Gray for possession of the knife. Considering Gray initially ran from them, they were fully justified in taking him into physical custody rather than issuing him a summons and letting him go. They had every reason to believe Gray would not answer such a summons.

In other words, under the two primary Supreme Court decisions most applicable to the Freddie Gray case, under Maryland law, and under normal Baltimore PD procedures—indeed, normal police procedure anywhere—the officers did everything right.

The prosecution, however, is apparently illiterate, or unable to understand the plain language of both decisions. Consider these quotes from the Wardlow decision, which was written by then Chief Justice Rhenquist:

Respondent Wardlow fled upon seeing police officers patrolling an area known for heavy narcotics trafficking. Two of the officers caught up with him, stopped him and conducted a protective pat-down search for weapons. Discovering a .38-caliber handgun, the officers arrested Wardlow. We hold that the officers’ stop did not violate the Fourth Amendment to the United States Constitution.

Substitute “Gray” for Wardlow and “knife” for “.38-caliber handgun,” and the facts of the cases are otherwise identical.

Nolan and Harvey were among eight officers in a four-car caravan that was converging on an area known for heavy narcotics trafficking, and the officers anticipated encountering a large number of people in the area, including drug customers and individuals serving as lookouts. It was in this context that Officer Nolan decided to investigate Wardlow after observing him flee. An individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime.  But officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation. Accordingly, we have previously noted the fact that the stop occurred in a ‘high crime area’ among the relevant contextual considerations in a Terry analysis.

Substitute officers on bikes, and add the fact they were there at the direction of the local prosecutor to suppress drug activity, and again, the facts of Wardlow and the Gray case are identical.

In this case, moreover, it was not merely respondent’s presence in an area of heavy narcotics trafficking that aroused the officers’ suspicion but his unprovoked flight upon noticing the police. Our cases have also recognized that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion. Headlong flight–wherever it occurs–is the consummate act of evasion: it is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.

Can police officers pursue people in high crime areas in “unprovoked flight?” Yes they can, saith the Supreme Court, because “Headlong flight–wherever it occurs–is the consummate act of evasion.” Supreme Court decisions apply to Baltimore. This excerpt is particularly relevant to the Gray case:

Unprovoked flight is simply not a mere refusal to cooperate. Flight, by its very nature, is not ‘going about one’s business’; in fact, it is just the opposite. Allowing officers confronted with such flight to stop the fugitive and investigate further is quite consistent with the individual’s right to go about his business or to stay put and remain silent in the face of police questioning.

Michael Schatzow (white hair) is often depicted behind Marilyn Mosby, scowling. credit: huffington post

Michael Schatzow (white hair) is often depicted behind Marilyn Mosby, scowling.
credit: huffington post

The Supreme Court says the officers did everything right in stopping and subsequently arresting Gray. Marilyn Mosby, a leftist politician with no prosecutorial experience, says they must go to prison because they arrested the wrong person at the wrong time, even though Gray was precisely the kind of person she wanted them to arrest in that part of Baltimore at that time.

The Prosecution’s arguments changed as circumstances—their failing arguments–require. They ignored Terry, and claimed the officers had no reason to stop Gray. They claimed Gray surrendered. They whined that the officers moved Gray a few feet from the place they arrested him, apparently arguing that somehow indicated they unlawfully arrested him. Then they claimed the knife was legal under Maryland law, even though they knew the officers charged Gray under Baltimore law, which is more restrictive. They have continued this charade even though the Baltimore PD confirmed Gray’s knife was illegal under City law, and they have, since Gray’s arrest, prosecuted people under that City law for possessing precisely the same kind of knife.

The upshot of this “novel legal theory” is that because the officers were mistaken in thinking they had probable cause to arrest Gray, handcuffing Gray amounted to assault—by the officers!

The danger of this, to public safety, is almost indescribable. There is no doubt that officers around the nation make mistakes in such things. They might arrest the wrong person; they might believe things that later turn out to be false, or merely different than they seemed at the time. They might think a specific knife to be illegal, but under careful examination under perfect light and with unlimited time, discover they were mistaken. In addition, cases are dismissed all the time for a wide variety of other reasons. Prosecutors might drop a charge as part of a plea bargain, because they have decided not to prosecute that kind of case for awhile for various reasons, for personal reasons, and for many other reasons, and this is for cases where officers made no mistake.

In any case, nowhere in America are police officers prosecuted for making a good faith mistake. In such cases, the remedy is to dismiss the charge. Yes, that person/criminal was inconvenienced, but this is a risk we take, a risk taken into consideration in Terry and Wardlow (by all means, take the links and read each case and the reasoning of the Justices). Law is a matter of balancing individual liberties with public safety. We must allow the occasional, good faith, mistake if we are to have police officers, and if crime is to be thereby suppressed. The Supreme Court recognizes this indispensable principle. Obviously, Marilyn Mosby does not.

But what if officers do not act in good faith? It’s then up to their superiors to apply appropriate discipline. And if their superiors will not? Police agencies are under the control of citizens. They can fire administrators that will not control their officers, and if necessary, citizens can vote politicians that won’t control police administrators out of office.

Should Officer Nero be convicted under this “novel legal theory,” law enforcement in Baltimore will exist only on paper.



Arrests [in Baltimore] have plummeted, along with the number of rejected cases. Still, in hundreds of cases each year, prosecutors at Central Booking in Baltimore refuse to file charges.

And charges are not filed against the officers for making the wrong call, Nero’s attorneys have said in court filings.

‘Common sense dictates that officers would simply not make arrests if they were subject to criminal prosecution if it was later determined that probable cause did not exist,’ Zayon wrote.

Notice that The Sun did not mention that while arrests have “plummeted,” crime, including the murder rate, has skyrocketed. Also keep in mind that officers commonly have to make probable cause determinations with the information available to them at the moment, and within seconds. It’s much easier to make such decisions later, with unlimited time and unlimited information.

Nero’s attorneys, Marc Zayon and Allison Levine, wrote in a recent court filing that they couldn’t locate a ‘single case’ in which an officer had been criminally charged with assault on the basis that an arrest was made without probable cause.

That would be because no such case exists, anywhere.

It’s unprecedented to see a prosecutor try to charge under those circumstances,’ Canterbury [president of the national Fraternal Order of Police union] said. ‘A prosecutor has months to review something, when a police officer has to make a snap decision. … An error is not a criminal matter; it’s just a mistake.

The prosecution, as one might imagine, disagrees:

The state does not minimize the difficulty inherent in the split-second judgments police officers make every day, nor does the state seek to criminalize every technical violation of the Fourth Amendment; but here, the state has alleged that the defendant’s conduct was objectively, criminally unreasonable,’ prosecutors wrote.


Maryland’s law of assault will forgive officers for justified actions, but will hold them to account for unjustified ones.

Unfortunately, the effect of this prosecution, whether successful or not, will cause Baltimore officers to behave as though the prosecution does intend to criminalize every technical Fourth Amendment violation. Police officers are not being paranoid. They understand and support criminal charges when officers behave as criminals, but not in cases like this. And as usual, the prosecutors have it backward: officers don’t need to be forgiven for justified actions. Doing what the law and citizenry expect of them is worthy of appreciation, even praise, but certainly not forgiveness. That’s the purpose and effect of Terry and Wardlow.

In the Gray case, the prosecution is trying anything that might work, even if they have to contradict themselves to do it. Essentially, they’re now saying they wouldn’t normally prosecute an officer in these circumstances—so officers don’t need to worry about that–but because Freddie Gray died after being arrested, prosecution is somehow justified. Keep in mind that in Officer Porter’s trial, the foremost forensic pathologist on the planet testified that Gray’s death was an accident, and “accidents happen.” Accidents, absent gross negligence, don’t give rise to criminal charges. Even the prosecution is only alleging that Nero made a common, officers-do-it-every-day, arrest. He did nothing to contribute to Gray’s death, so they have much to make up.

Final Thoughts:

The prosecution initially ignored Terry, essentially pretending it did not exist, in making its charging decisions. It is unlikely indeed that it will be able to ignore Wardlow. In fact, the only way for the prosecution to separate the virtually identical facts in Wardlow from the Gray case would be for the state to admit that the knife was, all along, illegal, yet they appear to be continuing to argue that it was legal and are intending to present expert witnesses to support that theory.



This is not the only bizarre aspect of this case. As I wrote in Update 5: Probable Causeless, the prosecution, in its probable cause statements, which were, in essence, identical for each officer, failed to produce any actual probable cause to prove any of the charges alleged against them. The irony should be clear: the prosecution, which has produced no probable cause to charge Officer Nero, is claiming he had no probable cause to arrest Freddy Gray. According to the probable cause statements, Nero’s role consisted of chasing, catching, handcuffing, and helping to place Gray into the transport van. He apparently had no role beyond that.

There is no question that Nero had nothing to do with Gray after initially placing him in the van. He may, at one later point, have been present when others checked on Gray, but there is no evidence he did anything else. Therefore, the prosecution is focusing on the ludicrous false arrest angle.

If Nero is acquitted, and if there is any semblance of a justice system left in Baltimore, he must be, on what basis can the prosecution continue to persecute the remaining officers?

Andrew Branca at Legal Insurrection has also continued to write on this case. His article on this new development is worth your time.