The defense has rested, and both sides have delivered their closing arguments. Judge Barry Williams will render his verdict on Monday–05-23-16–morning. This article will first summarize the Defense testimony, closing statements, and finally, explain the potential consequences of a guilty verdict for law enforcement and public safety in Baltimore and around the country. The information in this article comes from articles by The Baltimore Sun (here, here, here, here and here).
Sgt. Robert Himes: Himes instructed Nero in bike patrol procedures at the Academy. He testified it’s hard for bike officers to use their radios when riding; they often have to move themselves, their bikes, and the people they stop, and they’re responsible for their bikes and the contents. He also said officers aren’t trained on putting people in police vans, and he never seat belted people in vans.
Analysis: Himes supported Nero’s clearly secondary role in the arrest of Gray. He’s also helping establish that putting an arrestee in a van is a common, daily occurrence governed by common sense, not formal procedure. Very few, if any, BPD officers use seat belts on prisoners in vans, which is common around the nation regardless of any written policy.
Officer Aaron Jackson: Jackson testified that he arrived after Gray was arrested and had to do crowd control. He also testified he saw the van, with Gray inside, violently shaking. He also testified he never seat belted anyone in a van.
Sgt. Warren Stephens: One of Nero’s supervisors and mentors, he testified that Nero is considered a rookie. He never told officers at roll call about any change to the seat belt policy. He never used seat belts in vans.
Analysis: Testimony in this and the Porter trial is consistent: none of the officers knew about any change in seat belt policy. It was a small matter buried in a much larger communication sent on an antiquated and faulty e-mail system. None of the supervisors that might have told officers, did. Were this so, the prosecution surely would have trumpeted such testimony. The best the prosecution could do was have an IT guy say the e-mail containing the policy had been sent to Nero, who was not working that day.
Sgt. Charles Sullivan: Sullivan was Nero’s field training officer. He testified he never trained Nero on seat belting prisoners in vans. He portrayed Nero as a responsible young officer.
Officer Zach Novak: Novak was trained at the Academy with Nero, He testified that Michelle Martin taught them about Terry, and that they were taught they could, with reasonable suspicion, stop people, hold them for a reasonable time, and handcuff them if necessary–which is the law.
Michelle Martin: Martin is an Assistant AG for Maryland, who, as director of training for the Baltimore State’s AG office helped train police officers on Fourth Amendment issues:
Martin said she taught officers that a ‘Terry stop’ is a ‘brief, temporary seizure’ of a suspect permitted for officers to ‘confirm or dispel’ a reasonable belief that a crime was or was likely to be committed. She made clear that officers may move people during Terry stops for safety reasons.
Zayon tried to ask Martin if such suspects are allowed to be handcuffed during such stops, but the prosecution objected and Williams sustained their objection.
Analysis: Martin taught the officers nothing more than long-settled law that governs “stop and frisk,” which is one of the fundamental, essential tools of law enforcement. In NYC, under communist mayor Bill DiBlasio, the police have been forced to abandon it, and crime rates have skyrocketed. The moving of Gray a few feet this way or that has been a consistent prosecution theme as they try to ignore Terry and claim merely moving him an inch is evidence of arrest.
The corruption of the prosecution is obvious in their objection to the handcuffing issue. Of course officers can handcuff people on Terry stops for safety reasons; this too is long-settled law. Judge Williams’ preventing Martin from answering is therefore inexplicable, and troubling.
Captain Justin Reynolds: Reynolds is a former BPD training director. He testified that belting prisoners in transport vans was inherently dangerous to officers, and nothing could remove that danger. The prosecution earlier tried to demonstrate that officers could secure a belt with a clumsy sort of arm bar, but Reynolds explained that might work in a police car, but not in the transport vans, which have two-piece belts requiring both hands.
Joshua Rosenblatt: Rosenblatt is a former prosecutor who would have testified that the prosecution specifically requested extra law enforcement efforts in the area where Gray was stopped. The prosecution stipulated that area was a “high crime” area.
Analysis: The prosecution made this stipulation, which substantially undermines their arguments, because if they had not, the defense was prepared to make Rosenblatt and other current members of the prosecutor’s office testify. They absolutely did not want that door opened.
The Prosecution Closing:
They stuck to their “novel legal theory”–translation: misstatement and lies about the law–throughout. Merely touching Gray was a crime. Consider this:
Every time there is an arrest without probable cause, it is a crime?’ Williams asked Bledsoe.
Bledsoe said it depends on the circumstances.
‘No, no, no, no,’ Williams said, before asking again whether every such arrest is a crime. Bledsoe said it was. [emphasis mine]
Later, when Schatzow stood for his rebuttal, he immediately returned to the issue.
‘Not every arrest that occurs without probable cause is a crime,’ he said, but every arrest ‘for which the conduct of the officer is not objectively reasonable’ does have ‘all the elements of a crime.’
Williams repeatedly asked prosecutors whether they believed Nero’s actions were indeed criminal, or rather issues that may effect evidence or come up in civil cases.
They repeatedly said the actions were criminal.
Schatzow also claimed that because Nero “did not attempt to gather more information justifying the stop from Rice or from Gray himself,” he committed an assault.
This is extraordinary. Even the social justice-oriented Sun is admitting the prosecutors were contradicting each other on this pivotal issue. Officers often make arrests without probable cause. The idea that such good faith mistakes are crimes is not only without basis in law, but has the potential to make policing all but impossible. As with much of the sun’s coverage of this case, when they’re printing this much, the actual exchange in court must have been absolutely devastating to the prosecution. It demonstrates that Judge Williams understands the legal issues involved. It does not demonstrate that he is willing to uphold the law where a social justice outcome is politically preferred.
Schatzow’s contention that Nero had a duty to learn everything about the reasonable suspicion or probable cause that caused Lt. Rice to call for his pursuit in the 90 seconds to three minutes available is lunacy. It has nothing to do with law, and everything to do with prosecutorial desperation.
The Defense Closing:
Zayon, in his closing, said his client [Nero] broke no laws, had no knowledge that anything he was doing was wrong, and acted in good faith throughout the stop and arrest of Gray. Zayon also argued, as he had during the trial, that Nero only played a secondary role in the incident.
Zayon pointed out that Gray was detained only about 90 seconds before the illegal knife was found, immediately establishing probable cause for his arrest. Prosecutor Schatzow argued that it was three minutes. Either amount of time would be inherently reasonable under Terry. Time frames of 15 minutes or more have been held to be reasonable.
This, from The Sun, is also extraordinary:
Both sides agreed in their closings that nothing about Gray’s initial stop, prior to his being handcuffed and moved, was illegal. They also agreed that no assault was committed after Gray was searched.
In doing so, prosecutors ceded any argument that the decision by Nero to pursue Gray after his supervisor, Lt. Brian Rice, called out a chase was wrong. They also, without stating it outright, were acknowledging that the knife found on Gray was illegal, therefore substantiating all of the touching of Gray after its discovery.
Again, the Prosecution is trying to sort of acknowledge Terry, while pretending much of it does not exist. The Sun’s conclusion about the knife is obvious. If it were truly legal, the prosecution would have raised that issue and proved its legality, once and for all, in the Porter and Nero cases.
As I’ve often written in following this series of cases, two competing philosophies are at odds: the law (the rule of law), and social justice. The law is clear: the officers acted reasonably. The conflict occurs because Freddie Gray was black, and an appropriate martyr for race hustlers in Baltimore, around the nation, and in the Obama Administration. For the BLM/social justice forces involved, the law is an impediment, an oppressive force preventing the social justice they see as higher moral law, and as a personal and political meal ticket.
As in the Trayvon Martin /George Zimmerman case, this is a backward case. It’s a case in which the roles of the defense and prosecution are reversed. The defense is upholding the rule of law and reality, while the prosecution is ignoring and twisting the law and reality in pursuit of social justice. For example:
Defense attorneys not connected to the case say they have been following the proceedings with a degree of awe. They say they often make arguments in court that officers made a bad stop of their clients — and battle prosecutors who seek to justify the officers’ actions. If the attorneys are successful, they can get the evidence suppressed, but they never expect prosecutors to then charge the officers.
“A degree of awe” is an artful, and deceptive, way to put it. I’m sure defense attorneys are dumbfounded. They understand the consequences if the prosecution prevails, and even though it would make their jobs easier, it would make life for everyone far less safe and badly damage the rule of law. Some defense attorneys will do anything–even violate the law–to get their clients off. Most, however, understand that the rule of law must apply to everyone if anyone is to enjoy justice. There are lines they will not cross. Not so for the prosecutors in the Gray case:
Todd Oppenheim, an outspoken public defender, said there is an ‘inherent duplicity’ in the prosecutors’ stance in the Nero case compared to their stance defending officers’ alleged violations in cases against average citizens.
He also said the prosecution’s treatment in Nero’s case of police general orders as strict rules contrasts with prosecutors’ stance in most cases against average defendants, in which he said they often dismiss the orders as ‘mere guidelines.”
‘In my experience, the orders were mere guidelines before, and now they are treated like the gospel,’ he said of this case. ‘We’ve always treated the orders seriously but have been met with opposition.
Here’s a blatant example of the prosecution’s mendacity:
Their plan was to … arrest him, and then decide whether to un-arrest him,’ Chief Deputy State’s Attorney Michael Schatzow said in his opening statement.
There was no plan, just daily police procedure. The officers did not have sufficient time, nor the opportunity to converse, to formulate such a “plan.” From the beginning of the chase until the knife was found and Gray was under arrest took only a few minutes. Schatzow, by making such arguments–which will be thrown in his face and the faces of every Baltimore prosecutor in the future by defense lawyers–has undermined every future prosecution. Defense lawyers understand this, and more:
The simple detaining of somebody, seconds longer than hindsight would suggest is reasonable, is totally unreasonable to prosecute,’ said Warren Alperstein, a Baltimore defense attorney who has been observing the proceedings.
Consider this bizarre assertion:
Bledsoe said there was no case law that prevents prosecutors from arguing that Nero’s general participation in the arrest made him criminally liable, even if another officer — Garrett Miller, who testified at the trial — had been more directly responsible. Williams noted that prosecutors hadn’t charged Nero with being part of a conspiracy, which he said was because they couldn’t prove it.
Williams said there was no evidence to show Nero was present when Miller moved Gray from the initial spot where he was detained. ‘You want me to attribute that movement to defendant Nero?’ he asked.
‘I do,’ Bledsoe said. ‘There’s no case law to show we can’t.
There is also no case law that would prevent Bledsoe from arguing that Nero is a three-headed space alien from Alpha Centuri. Rational prosecutors don’t argue nonsense merely because there is no case law addressing it. Consider, too, this from prosecutor Schatzow:
He [Judge Williams] later appeared incredulous when Schatzow argued the assault charge was based on Nero’s failure to ask Gray or Lt. Brian Rice, who called out the chase, about what had prompted the stop.
‘If he asks Mr. Gray questions, without information from Lt. Rice, how is it going to help him?’ Williams asked.
Schatzow acknowledged that it may not have helped Nero, but he still should have done it.
‘I don’t get it,’ Williams said.
If The Baltimore Sun is willing to publish such exchanges absolutely deadly to the prosecution and the social justice narrative, it’s reasonable to believe that there was far, far worse the Sun has not seen fit to publish.
The facts of the case are elementary, and deadly to the prosecution. Officer Nero was not the arresting officer. He had a very common, secondary role of assisting the arresting officer, Garrett Miller. His actions–and the actions of all the officers–under Terry were inherently reasonable and virtual, word for word mirrors of the Supreme Court decision and all rulings since affirming and reflecting it. Their actions under Wardlow were virtually identical to the facts of that case. They had reasonable suspicion to stop Gray. Their handcuffing, moving and very brief detention of Gray–90 seconds to three minutes–were entirely lawful. Not using a seat belt on Gray was a reasonable, and common, exercise of officer discretion. Officer Edward Nero did nothing morally or ethically wrong. He did nothing unreasonable. He had no criminal intent; He did nothing unlawful. Of all of the officers, considering what is known, he has absolutely no culpability under the law, criminal or civil. Of course, he is white and a police officer, and under social justice, that’s all that’s required.
The prosecution has tried to portray police policies as law. They are not. All police officers understand that many policies make no sense. There is an enormous gulf between what top police administrators and working cops understand to be realistic, true and effective. Working cops, and their supervisors, know they will have to ignore some of them to effectively and safely do their jobs, and that’s just what they do. The BPD seat belt policy is a prime example. As police vehicles have, over the years, become smaller and smaller, belting prisoners has become more and more dangerous, even physically impossible. Seatbelts are also not proof against injury, if for no reason other than that prisoners, even in handcuffs, can easily release them at will. I suspect this has come up in this case, but The Sun has neglected to mention it.
Prosecutors, too, understand these distinctions. To try to treat every police policy as though it were iron-clad law would not only totally deprive officers of discretion–endangering them and the public–it would give every criminal a get out of jail free card for any minor, good faith, misstep made by an officer. Treating policies as law would also absolutely undermine prosecutor’s abilities to uphold the rule of law and public safety. How could they prosecute police officers for failing to use seatbelts, but allow school bus drivers to go un-arrested for the same “offense”? Paramedics have no exemption from seat belt use for patients. Should they be charged with crimes as well? Every minor failure to follow policy could–probably would–result in the dismissal of charges against criminals.
The suggestion that no officer can pursue, handcuff, move or detain a criminal unless they have probable cause is dangerous lunacy. Officers direct their fellows to chase, detain, cuff, move or take into custody criminals on a daily basis. The common term is “imputed knowledge.” Even if officer A didn’t see a criminal steal something and run, Officer B, who did, can tell Officer A to catch the criminal. Officer A can rely upon Officer B’s observations and judgment. Both understand that even though it is officer A that takes the criminal into physical custody, it is officer B, who has probable cause for the arrest, who is the actual arresting officer, and that he will be writing the report establishing that probable cause. Officer A is merely assisting him in enforcing the law.
If officers can’t do this–and it’s a well accepted and settled point of law–police officers work alone. Their telephones, radios, and other means of communication are meaningless. There is no mandated time frame involved in such matters. Officer A is not obligated to learn everything Officer B knows within 10 seconds, ten minutes, or ten hours of detaining the criminal. Again, it’s up to officer B to deal with those details.
The prosecution has not proved a single element of any of the offenses charged. This is so because Officer Nero committed no crimes. This is why the prosecution has had to construct and insanely propound its “novel legal theory” of this case.
So, will Officer Nero be found not guilty? Under the rule of law, Judge Williams has no choice. Under social justice, he also has no choice. He must and will find Nero guilty of something, most likely, misconduct, which is about as vague a statute as one could imagine.
If he does convict Nero, the consequences will be severe–for the public and the police. If he does, not, they will be severe for the prosecution, and the public and the police.
By pursuing these cases without evidence of criminal wrong doing on the part of the officers, the prosecution has destroyed any working relationship they will have with the Baltimore Police, perhaps forever. Any police officer understands and can support a prosecution for actual criminal behavior by a fellow officer. That’s not the case here. Particularly because Schatzow and Bledsoe have so irrationally and angrily pursued these officers, they, and every member of the prosecutor’s office, will not be forgiven. Officers will be right to mistrust and loath them, for they will not only have betrayed the police, they will have betrayed the law and made life much easier for criminals, and far less safe for the law-abiding.
Their success in this prosecution will make law enforcement virtually impossible. They will have established these precedents and effects:
* Police policy is law, and any violation can be criminally prosecuted. This would logically extend to errors in completing paperwork.
* Even good faith mistakes by police officers can and should be prosecuted.
* Terry and Wardlow are dead. The police cannot stop or detain anyone behaving suspiciously, even in a high crime area, even in an high crime area where the prosecutors have directed them to patrol.
* Criminal defendants still at legal risk can be compelled to testify again their co-defendants. The Fifth Amendment is dead.
* Transporting a criminal, particularly in a van, is essentially committing a felony.
* Intelligent, ethical people will no longer seek to become police officers.
* Those that remain will do nothing that could legally imperil them. What rational person would? Proactive police work will grind to an abrupt halt, just as it already mostly has in Baltimore.
* Criminals, always possessed of feral cunning, will absolutely take advantage of these, and more, negative effects.
If Nero is convicted, it’s a perfect case for appeal. The argument will not be the facts of the case, which appeals courts virtually never entertain, but Judge Williams’ misinterpretation and misapplication of the law, which is why appeals courts exist.
If Nero is exonerated, the prosecution has sabotaged their arguments for every other trial. Remember: the facts are the same for all. The arguments are the same. How can the prosecution, failing to convict in this case, use the same arguments in others? If their argument that Nero–who didn’t arrest Gray–made a malicious false arrest fails, how can it succeed with Miller, who actually did arrest Freddie Gray?
Even if he is acquitted, Edward Nero wins nothing. His police career is certainly over in Baltimore, and likely, everywhere. There will be no winners in these cases, and least of all, the rule of law.