Officer Edward Nero

Officer Edward Nero

The prosecution has rested in the trial of BPD Officer Edward Nero, and as with the George Zimmerman trial, many of the prosecution’s 14 witnesses inadvertently testified for the Defense. The Baltimore Sun reports: 

Baltimore Police Officer Garrett Miller took the stand Monday as a prosecution witness in the trial of co-defendant Officer Edward Nero, testifying that he alone took Freddie Gray into custody after a chase.

Miller’s testimony helped back Nero’s contention that he played a minor role in the arrest, which began after a supervisor asked for help chasing the 25-year-old through a West Baltimore public housing project.

All of the evidence indicates Miller was the arresting officer. In his taped interview given shortly after the death of Gray, Nero testified that he touched Gray only to check him for an inhaler and to help lift him into the transport van, facts that Miller confirmed. Nero and Miller are testifying to an entirely unremarkable arrest that would have gone unknown had not Gray accidently killed himself.

Miller testified that he never sought to clarify the purpose for the chase. Prosecutors said in opening statements that by not seeking to determine the reason for the pursuit, the officers exceeded any legal authority to detain Gray and committed an assault.

This is utter nonsense. Officers often take actions based on the directions of fellow officers. All understand that it is the responsibility of the officer with reasonable suspicion or probable cause to write appropriate supporting reports. In other words, Officer A is told by Lt. B to catch a fleeing suspect. Officer A expects Lt. B to cover the why in his reports. To demand otherwise would essentially make police officers unable to rely on anything their fellow officers said. They could never function as members of a team. Radios would be useless. No officer could help another with anything they did not see themselves.

The defense, as any defense lawyer would do, asked that the case be dismissed when the prosecution rested. Judge Williams, also as most judges would do, denied the motion. Neither action is a surprise.

BPD Officer Garret Miller

BPD Officer Garret Miller

Miller was testifying under a grant of limited immunity, but the Prosecution did its best to violate their promises about not using his testimony against him:

Legal challenges to prosecutors’ ability to call co-defendants as witnesses tied up the cases for months in Maryland’s highest court, which in March affirmed prosecutors’ argument that Porter could be called to testify at all five co-defendant cases. Williams would later grant prosecutors’ request to compel Miller to testify at Nero’s trial.

On Monday, Miller calmly answered Schatzow’s questions, with mostly short responses. Zayon frequently objected as Schatzow sought to impeach Miller by reading his statements to police investigators and contrasting them with his testimony. Williams sustained many of the objections, preventing Miller from answering.

“It can’t be done this way,’ Williams told Schatzow, causing prosecutors to huddle to the side of their trial table.

Even The Sun could not avoid saying that Nero’s involvement in the arrest of Gray was essentially that of the police version of a helpful bystander:

Prosecutors last week selected a new team of prosecutors to handle

Warren Alperstein, a defense attorney who is not involved in the case but has been watching the proceedings, said Miller ‘helped the defense a great deal’ with his testimony, making it ‘abundantly clear’ that he arrested Gray, not Nero.

The state was ‘at a disadvantage ‘s calling Miller because it wasn’t able to interview him prior to compelling him to take the stand with the court’s backing, Alperstein said.

Warren Brown, another defense attorney watching the proceedings, said Miller’s testimony ‘really put a human face on what went on’ during Gray’s stop and arrest.

‘What you got from it was a real sense of what was going on out there,’ Brown said. ‘A chase is announced so they joined in the chase. That’s what they’re supposed to do. It’s absurd that you’re going to criminalize their good faith behavior.’

Brown said it was amazing to watch Miller testify, rare as it was.

‘We’re seeing things we’ve never seen before: defendants in the midst of criminal charges pending against them being called to testify against the co-defendant,’ Brown said. ‘And the prosecution arguing that the police didn’t have probable cause? That’s usually something the defense argues.

Again, this was a completely unremarkable arrest, the kind of action officers take on a daily basis without thinking a thing about it. They make the arrest, assist others in doing the same, write whatever reports are necessary, and move on to the next call. The Prosecution spent two hours trying to wring something useful out of Miller, but failed, not because Miller was uncooperative, or because the officers did anything wrong, but because they did everything right. There is nothing to lie about, nothing criminal in their actions. Miller alone made the arrest; Nero did next to nothing to assist him.

What The Sun did not say in it’s closing paragraph is important:

The defense’s first witness was former Charlottesville Police Chief Timothy Longo, who testified as a police expert about the responsibilities of officers. Longo also testified at Porter’s trial.

Notice that Longo’s testimony has no part in The Sun’s report. Longo was an effective witness in the Porter trial, at least in part because he was doing nothing more than explaining normal, lawful police procedure, which the officers were following. No doubt, Longo was equally effective in this trial.

The prosecution has utterly failed to prove its case, and the defense has not yet presented its case. Judge Williams was never going to dismiss until every bit of non-evidence was heard. He has to give the appearance of “justice for Freddie Gray,” regardless of the facts, particularly if he acquits Officer Nero.

Screen Shot 2016-05-16 at 7.36.01 PM

The charge the prosecution included as a catch-all, their final hope to get something when they fail, as they must know they will, on the facts and evidence, to prove the other charges, is the Misconduct in Office charge. This information from explains it well: 

Criminal Misconduct in Office. There are instances in which public officials and employees have been prosecuted for committing acts that are corrupt. Although many state and federal laws have an impact on the conduct of local officials, the common law crime of misconduct in office is the significant enforcement tool that prosecutors use in dealing with office misconduct.

Misconduct in office is generally defined as “corrupt behavior by an officer in the exercise of the duties of his or her office or while acting under color of office.” This definition is also found in case law, and there are no statutory penalties prescribed in Maryland for this offense. Therefore, misconduct in office is, at common law, a misdemeanor. Punishment for the offense is entirely within the discretion of the judge subject to constitutional proscription against cruel and unusual punishments.

Applicability. The crime of misconduct in office can only be committed by a public officer or official and the commission or omission of the alleged acts must be in the performance of duties related to the office held by the offender. If a public officer commits a crime unrelated to the duties of his office, such as theft in a private matter, he cannot be charged with misconduct in addition to the theft charge.

The fact that a person is employed by the State or local government does not, by itself, establish that person as a public officer. Maryland law has no clear definition of what constitutes a public officer, but five factors have been set forth in case law. They are as follows:

  1. The position was created by law and the duties are continuing and not occasional.
  2. The incumbent performs an important public function.
  3. The position has a definite term for which a commission is issued, a bond posted, and an oath required.

4.The position is one of dignity and importance.

  1. The position calls for the exercise of some portion of the sovereign power of the State.

Of these five characteristics, the most important one is whether the position calls for the exercise of some of the government’s sovereign power. Government employees who do not have such authority usually will not be held to fit the legal definition of a public officer.

Types of Misconduct. Misconduct in office is a general term which refers to three types of offenses. Specifically they are:

malfeasance—an act which is wrongful in itself or which should not be done at all. misfeasance—an act which is otherwise legal but performed in a wrongful manner. nonfeasance—the omission of an act which is required by the duties of the office.

The difference between malfeasance and misfeasance is clarified in the following example. A public official awards a contract for the corrupt purpose of enriching a friend. If the official has no authority to award the contract, he can be charged with malfeasance. If awarding such contracts is one of his duties, he can be charged with misfeasance.

Nonfeasance can be charged when the duty is ministerial and mandated by law. A ministerial duty is one prescribed by law or superior authority and which does not involve discretion or the exercise of judgment. When the act is discretionary, it would be necessary to show that the failure to perform the act was corrupt. However, any intentional forbearance or deliberate refusal by an official to do what is unconditionally required by the obligation of the office is corrupt. An official mandated by law to perform a certain act is not permitted to judge in opposition to that which is required.

Elements of Misconduct. In order to demonstrate that the crime of misconduct has been committed, the prosecution must prove that the offender was a public officer at the time of commission or omission of the alleged act. The act or omission must be proven to have been in the exercise of public duties or under color of office. Under “color of office” denotes that the offender was able to do the unlawful act because the person is a public officer or because of the opportunity afforded by that fact. In addition, the prosecution must show that the offender had a corrupt motive except where there was a failure to perform a nondiscretionary duty required by law.

Limitations and Procedures. Maryland law provides that the prosecution of malfeasance, misfeasance, nonfeasance, or a conspiracy to commit such offenses shall be instituted within two years after the offense is committed. If the offense is nonfeasance or if it is continued over time, the statute of limitations would not begin to be calculated until the duty ends or the offender resumes performance of the duty.

What matters most is this section:

When the act is discretionary, it would be necessary to show that the failure to perform the act was corrupt. However, any intentional forbearance or deliberate refusal by an official to do what is unconditionally required by the obligation of the office is corrupt. An official mandated by law to perform a certain act is not permitted to judge in opposition to that which is required.

This is why the prosecution has been so desperate to portray the use of seatbelts as not only a law, but virtually a religious duty. How can officers perform a corrupt act when they do what virtually every officer does, and when that act–not using seat belts–is not, in and of itself, harmful or unlawful? That’s why the Defense has had to pull the fact that even with the seatbelt policy, officers retain the use of their discretion. It is not a law and it is not an unbreakable, mindless mandate more important that the safety of officers.

How did Officer Nero, assisting other officers, as police officers do every day, demonstrate a corrupt motive? How, as one of six officers that did not use a seatbelt on Gray, was he acting on a corrupt motive? Obviously, he was not. The law, such as it is, is being egregiously misapplied in this case. Clearly it was meant to be a corruption-fighting tool, not a means to criminalize reasonable, good faith police conduct.

More as the trial progresses.