Edward Nero (grey suit) credit: baltimoresun

Edward Nero (grey suit)
credit: baltimoresun

As in the trial of William Porter, Prosecutors Michael Schatzow and Janice Bledsoe have the unenviable task to trying to prosecute a case without evidence to prove any of the charges. In that pursuit, even according to the prosecution-friendly Baltimore Sun, Schatzow is violating legal ethics and the law by materially misrepresenting the law to the court, but more on that later. The prosecution has had two days to present its nonexistant case, and may take one additional day.

In Updates 34 and 34.1 I’ve explored the Supreme Court decisions that make the prosecution’s case an exercise is exaggeration and deception. Officer Nero, whose role in the arrest of Freddie Gray was about as minimal as possible–he was not the arresting officer–did nothing more, and nothing less, than any competent police officer would have done when asked to assist another officer in foot pursuit of a fleeing criminal.

Information for this article was gathered from three articles: two by The Baltimore Sun–here and here–and one by WBAL TV in Baltimore.  Of the reports, the WBAL story was far more complete and balanced. The Sun, as always, omitted much of the information unhelpful to the social justice narrative.

Opening Statements:

The Prosecution’s arguments were as expected: Nero had no justification for arresting Gray, so any touching of Gray was an assault, and also professional misconduct. The Sun suggested:

Legal observers have said it is an unusual theory, and the case is expected to involve complex arguments about the authority of officers to stop citizens.

There are no complex arguments involved. The law governing these issues is clear and easy to understand, as I noted in explaining Wardlow v Illinois in the aforementioned SMM articles.

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Chief Deputy State’s Attorney Michael Schatzow [right, above] told Circuit Judge Barry Williams that officers pursued Gray through Gilmor Homes in April 2015 after responding to a chase called out by a supervisor, Lt. Brian Rice. All they knew was that Gray was being sought when they handcuffed and searched him, Schatzow said. Those were not grounds for an arrest, he said.

Nero ‘had no idea what was suspected, and he made no effort to find out,’ Schatzow said. ‘Their plan was to … arrest him, and then decide whether to unarrest him.’

Officers can only detain someone for as long as it takes to determine whether that person has a weapon or if the officer is in danger. Nero ‘knew better than all this,’ Schatzow alleged.

This last assertion by Schatzow is a gross misrepresentation of the law, in this case, not only Wardlow, but Terry v. Ohio. Even under Terry, with reasonable suspicion, an officer may not only pursue and stop a suspect, they can handcuff him, move him here or there as necessary, and detain him for a brief, reasonable period, normally understood to be around 15 minutes. With probable cause, time limits are essentially removed, and officers may take people to jail, where normal procedures for arraignment, bail and release apply.

It is inherently reasonable–and this is settled law as well–for officers to rely on the knowledge and observations of their fellow officers in pursuing and detaining suspects, even though they may have no idea why that person is wanted. They too can hold, even handcuff, and search suspects to ensure their safety and the safety of the suspect and public. It is, of course, the responsibility of the officer that called for help to make the arrest, write the report, and prove probable cause. In this case, that was Officer Garrett Miller.

The Defense opening portrayed Nero as minimally involved. He responded to the orders of a superior officer–Lt. Rice–and didn’t touch Gray until Gray claimed to want an inhaler. He searched his pockets, finding nothing. This was doubtless a ruse by Gray. He had no inhaler, and the prosecution has never brought up the issue of an inhaler. According to Nero’s attorney, Marc Zayon, it was Officer Garrett Miller that caugth and cuffed Gray.

To prove Nero committed an assault, prosecutors need to show ‘unconsented touching,’ and Zayon said Nero, a trained EMT, only searched Gray after he asked for an inhaler.

‘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,’ Zayon said. He said Nero will be judged against what a ‘reasonable’ officer would do, and that the defense would present experts and other officers to testify that the actions were reasonable.

The Seat Belt Theory:

This issue generates the Reckless Endangerment charge. The Prosecution argued that Nero was one of two officers who later put Gray into the van without a seatbelt, and failing to use a seatbelt was another count of misconduct. This is classic charge stacking.

credit: legalinsurrection

credit: legalinsurrection

Zayon said officers are trained to quickly respond when an officer calls out a chase, and that case law supports chasing and detaining someone who is fleeing in a high-crime area. He noted that the officers were patrolling the area after receiving a directive from ‘a designee of Marilyn Mosby, the State’s Attorney of Baltimore City’ to step up enforcement due to citizen complaints of open air drug dealing. Mosby attended Thursday’s proceedings, sitting in the front row.

Defense attorneys have noted in court filings that scores of cases are thrown out by prosecutors after they decline to find grounds to pursue charges, and said they could not find other examples of officers being charged with assault for an unlawful arrest. But prosecutors countered that while officers are allowed to place their hands on citizens during the course of their duties, they must be held accountable if their actions are unjustified.

Notice that Schatzow obviously could not provide a single instance of another officer ever being “held accountable.” If he could, The Sun would surely have trumpeted it.

Zayon also noted that Nero, a former EMT, touched Gray to assess his condition, finding that he was not in any medical distress, though he did occasionally pretend to be in pain, playing to a growing and hostile audience. This kind of behavior is common, particularly when crowds are gathering.

Witnesses:

Captain Martin Bartness of the BPD was involved in the seat-belt policy distributed shortly before Gray’s death. He initially claimed that the policy forced officers to use seat belts on arrestees, but admitted they always retain discretion with policies. If they have reasonable reasons not to use seat belts, they’re justified.

Bartness testified that police policy is not law, but rules that officers must follow as members of the Baltimore Police Department.

They’re not crimes, merely work rules.

Zayon noted that department policies were employment rules, and not state laws. He noted that Baltimore County arrest vans do not even have seat belts, and said that it was ‘impossible’ to put a seat belt on Gray due to the close quarters inside the arrest vans. He said officers fear that detainees will head-butt or spit on them, and said an unruly crowd was gathering as Gray was being arrested.

Officer Lloyd Sobboh, who is about the same size as Gray, was videotaped while handcuffed and shackled in a transport van. He was then a cadet, but was able to move as he wished and shake the entire vehicle, just as Freddie Gray did.

It was pretty tight in there,’ Sobboh said.

BPD IT director Andrew Jaffee testified that Nero was sent an e-mail about the new seatbelt policy on April 9, 2015, but admitted he had no way to tell if Nero read the e-mail.

The defense countered that Nero was not aware of a new seat-belt order, saying that Nero was off work on April 9-10, 2015, and commanders never mentioned it in roll call.

As I reported in prior articles, that seatbelt policy was only a short part of a much longer e-mail containing many other items. The prosecution can’t prove Nero knew anything about the policy, and the Defense will surely introduce evidence that BPD officers virtually never used seat belts in transport vans, and why, just as the Defense in the Porter trial did.

The testimony of Officer Adam Long illustrates just how desperate the Prosecution is:

The last witness to testify Thursday was Baltimore police Officer Adam Long, an instructor at the police academy. He said he taught Nero arrest and control during his time in the academy in 2012.

He said Nero completed a lesson about effectively transporting people. Under cross-examination, Long said the training wasn’t specifically for transport vans, which was changed after Gray’s death.

This is entirely irrelevant. It was already established that officers have discretion where the use of seat belts are concerned, even with the “new” policy. In addition, officers are taught all manner of things in training that are not, and cannot be safely used on the street.

The testimony of “police training expert” Neil Franklin was also tinged with desperation:

At one point, Chief Deputy State’s Attorney Michael Schatzow read from a transcript of Nero’s statement as police training expert Neil Franklin sat and listened from the witness stand.

‘I then see Officer Miller chasing the other suspect, and Officer Miller at this time is now on foot,’ Schatzow read, quoting Nero. ‘He has his Taser in his hand. He’s saying, ‘Stop or I’m going to tase you.’ He never tases him. I guess the suspect seen me. He then, he then stops. He looked like he kind of like slipped, I don’t know what he did, but either way he stopped.’

‘Miller and I, we got him in custody. Miller took out his cuffs; he cuffs him.

Clearly, Gray was Miller’s arrest.

Schatzow then asked Franklin for his assessment of the actions described.

‘It is consistent with that of a joint arrest,’ said Franklin, a former training director for the Baltimore Police Department. ‘They both played an active role in seizing the suspect they were chasing.

Either Franklin is lying, or knows precious little for a “police training expert.” There is no such thing as a “joint arrest.” On all police arrest forms, one officer, and one alone, is listed as the arresting officer. It’s his responsibility to write the primary report on the arrest, as Officer Miller did. Other officers might assist the arresting officer in one way or another, but there are no “joint arrests.” Other officers might touch an arrestee, such as guiding their head so they don’t whack it on a doorframe as they are seated in a police vehicle, or searching their pockets for a nonexistent inhaler, but that has nothing to do with arrest. The Baltimore Sun categorized this testimony as “one of few revealing moments,” obviously unaware that it was revealing of the Prosecution’s utter lack of evidence.

Nero’s statement indicated that he kept an eye on Gray to ensure he had no real medical issues, and he also retrieved Miller’s bike, which he dropped prior to catching Gray. Nero said Gray:

…wasn’t screaming in pain. He was just making, like, he was trying to attract people to come out, he wasn’t saying ‘ I can’t breathe,’ he wasn’t saying anything like that, except that one time where he said I need my inhaler. We asked him if he had it, he didn’t have it.

The interview also revealed that they were concerned with getting the van out of the area as quickly as possible because a growing crowd was increasingly hostile. Gray continued to play to the crowd:

He said Gray becomes dead weight, and the officers carry him to the van. ‘He kind of pitty patters his feet,’ Nero says, and they ‘ease’ Gray into the van on a right side bench.

‘It seemed as though that he was just, he didn’t want to go,’ Nero said.

This bit of testimony by Franklin is frankly, ridiculous:

Franklin, discussing the issue, said in response to questioning from Schatzow that such stops should be as brief as possible.

‘We’re talking about the Fourth Amendment, we’re talking about constitutional rights,’ Franklin said. ‘It’s a traumatic event to be stopped in public, to be searched in public, and it should be conducted as fast as possible.

Such stops should be brief, but never at the expense of safety, nor does the law require such. Virtually everything officers do involves the Constitution. Should we no longer stop and capture criminals to spare them the trauma about which Franklin speaks? The evidence is clear: any “trauma” Gray experienced, he brought on himself by his play-acting. He had no inhaler. He wasn’t injured. He was in no medical distress.

However, on cross-examination by Zayon, Franklin conceded that the circumstances under which an officer finds himself during any given stop must be considered in determining whether his actions were appropriate.

Franklin admitted officers can stop people if they have reasonable suspicion. He admitted they could handcuff people they stopped if they were a “flight risk,” and that someone who had been running from them could be reasonably considered a flight risk. Franklin also admitted that officers could rely on information from other officers–Lt. Rice in this case–in chasing and holding someone until the officer requesting help could provide more information. In other words, Franklin tried to portray Nero’s actions as illegal under Terry, but under cross-examination, had to admit that everything Nero did was entirely reasonable not only under Terry, but Wardlow as well.

Another witness was Brandon Ross, one of two friends with Gray that day. After testifying, Ross, in custody on an unrelated charge, was taken away in handcuffs. He confirmed that Nero approached Miller and Gray pushing two bicycles, just as Nero told police investigators. However, Ross claimed the three of them were just out for an early morning coffee, but found their coffee stop closed. He testified that Gray and his other friend started running before they saw the police. Ross apparently offered no explanation for why they might do that, or why he did not join them in a morning exercise session, at least there was no media account of any such explanation.

Final Thoughts:

The Prosecution is taking the risk of insulting the judge’s intelligence. Any competent judge would know Terry and Wardlow, and could apply them to this situation. As I noted in Update 34, the circumstances of Wardlow and the Gray case are virtually identical.

There is no question that police policies are internal documents, not laws. Not following a policy to the letter is never a criminal matter, but a matter of internal police discipline. There is no question that officers must have broad discretion in the performance of their duties, which of necessity renders policies guidelines, not absolutes. Therefore, most violations of policy are never punished, as Bartness was forced to admit. There is likewise no question that if officers are within the guidelines of Terry and Wardlow, they are not only within procedure and the law, but are faithfully following the Constitution, and are behaving inherently reasonably.

Any hope of conviction rests on the hope that judge Williams will not decide the case on the law, but on principles of social justice. He must ignore the law, ignore daily, reasonable and absolutely necessary police and prosecutorial procedure, and agree to criminalize police officer’s daily, lawful duties.

The prosecution is based on lies and political corruption, not the rule of law. If Williams does convict on the evidence presented the first two days of the trial, he will deal a crippling blow to public safety, not only in Baltimore, but throughout the nation.

NOTE:  For a somewhat different take on these issues, visit the article by Andrew Branca at Legal Insurrection.

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