Godzilla-FacepalmThe bench trial of Baltimore PD Officer Edward Nero will now begin on Thursday, May 12. There is little factual or other evidence involved, yet the prosecution claims to need 2-3 days to present its case. There is no jury to convince, no emotions to play to, which will dramatically shorten any case the prosecution could possibly present. The facts are not in dispute. In essence, this trial is about absolutely clear and settled legal precedents that govern stop and frisk and arrest. On that basis alone, it should have been dismissed prior to trial. Nero is charged with three misdemeanors: second-degree assault, reckless endangerment and misconduct in office.

This is, as I’ve previously noted, a classic case of unethical charge stacking, and charges that are not self-supporting. If the assault and endangerment charges fail, there is no evidence for the misconduct charge.

The assault charge comes from the prosecution’s “novel legal theory” that the officers, including Nero, had no grounds to pursue or stop Freddie Gray, therefore merely laying hands on him, and handcuffing him, is an assault. The reckless endangerment charge is essentially the argument that not seat-belting Gray, who was resisting and behaving violently, was, in essence, the same as killing him. And the misconduct in office charge is a catch-all on which the prosecution hopes to hang at least one conviction if all else fails, yet, it too rests on the necessity of first proving the two other charges.

As I noted in Update 34 (link above or scroll down), two well-known Supreme Court cases, one of which has nearly identical circumstances as the Gray case, leave no doubt the officers were justified in stopping and arresting Gray. Even if Judge Williams decided a token conviction was necessary in absence of evidence, such a ruling would likely fall on appeal. From The Baltimore Sun: 

Judge Barry Williams

Judge Barry Williams

At a pre-trial hearing Tuesday, Circuit Judge Barry G. Williams also issued several rulings that will determine what evidence is introduced at trial. For instance, the judge excluded medical testimony on the fatal spinal injuries Gray suffered while in police custody. That evidence figured prominently in the trial of Officer William G. Porter — the only other Baltimore officer to have stood trial in the case to date.

He also barred prosecutors from arguing that a knife clipped to Gray’s pants pocket was legal, making his arrest unjustified. Prosecutors now contend that Gray’s initial detention — before the knife was found — was unwarranted.

Other media accounts have noted that Judge Williams separated events after the arrest of Gray from Nero’s trial, which is entirely appropriate. That’s where Nero’s involvement with Gray ended.

Williams, 54, said he was “certainly not going to be swayed by emotions” in assessing the charges. The case has been a lightning rod since Gray’s death sparked widespread protests against police brutality and a night of rioting, looting and arson after Gray’s funeral, and police union officials accused prosecutors of rushing to judgment.

Williams has presided over all the cases since the fall.

Williams may not be swayed by emotion, but this blatantly political series of trials might tempt a judge to be swayed by other factors. Among them:

I don’t believe a judge who heard the Porter case can be impartial in the Nero case,’ said Clarke Ahlers, a local defense attorney who has represented law enforcement officers but is not involved in this case. ‘I believe the trial is a long, slow guilty plea.

This is an entirely reasonable argument. How can a judge intimately involved with every other trial, trials that have essentially the same facts and evidence, without feeling the need to convict somebody of something? It is possible, but human nature being what it is, it would be wise to have these cases heard by different judges. Of course, changes of venue would have been wise as well.

Attorneys for Nero and the other officers have said that their clients were justified in their actions, and that legal precedent strongly supports their right to stop individuals like Gray in high-crime areas. They have argued that Gray’s decision to run “unprovoked” from the officers solidified that standing. They said that finding a knife on Gray justified his subsequent arrest.

When the charges were first announced, prosecutors argued that Gray’s knife was legal. On Tuesday, Williams ruled that prosecutors will not be able to make that argument at trial because it was no longer relevant to the charges as described by the state.

Marilyn Mosby no longer quite so certain about getting "justice for Freddie Gray."

Marilyn Mosby no longer quite so certain about getting “justice for Freddie Gray.”

This is bad news for the prosecution. There is no doubt the case law—decided by the Supreme Court–is on the side of the officers in their pursuit and detention of Gray. This ruling alone might cause a reasonable observer to wonder why Judge Williams did not dismiss the charges outright? An obvious reason is that he, and the Baltimore establishment, might feel trials are necessary, regardless of the lack of evidence, in the hope the mob might be mollified.

Williams granted a state request to exclude information about Gray’s past, including previous run-ins with law enforcement.

One might think this an effort to be scrupulously fair, but if any of the officers recognized Gray as a known drug dealer/criminal, his previous law enforcement contacts are obviously relevant. This is interesting indeed:

He also ruled against most of the requests made in a motion by The Baltimore Sun and other media outlets asking for increased access to court documents and evidence presented to the jury. Williams said his previous decisions to restrict access had been appropriate.

Why any of this should be hidden from the public is a mystery. This is a simple case with relatively few facts and witnesses. Keeping such things secret benefits no one, except the prosecution, which has no evidence to convict any of the officers. As I’ve previously noted, there was no known probable cause to arrest, let alone convict, them beyond a reasonable doubt. And in the “no kidding” department:

José Anderson, a law professor at the University of Baltimore, said the prosecution’s case at this point is more about the ‘full interaction’ that took place between police and Gray, including why they chased him through the Gilmor Homes housing project.

‘It’s going to be a difficult prosecution simply because of the unusual nature of trying to criminalize the officers’ behavior,’ he said. ‘If the prosecution theory has any chance, it’s got to be based on having no justification for detaining Freddie Gray in the first place.

Why did they chase him? Because he ran through there. He got caught and arrested and loaded into a transport van. That’s the full interaction. Anderson is correct about the prosecution’s case. Again, take the link to Update 34 for a complete rendering of that issue.

Final Thoughts:

If the trial is decided on the facts and the law, Nero will be acquitted on all charges. Judge Williams’ pre-trial rulings indicate that the trial should never have occurred.

I’ll continue to report as details become available.

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