Today the prosecutors and defense presented their closing arguments in the “Freddie Gray” trial of Baltimore Police Officer Edward Nero. Naturally, nothing much new emerged, and each side simply summarized their theory of the case.

There was one unusual facet of these closing arguments, however. Normally, closing arguments are presented as monologues to a jury, and the jury must simply sit and listen. In this bench trial, however, trial Judge Barry Williams is serving as the jury, and has the opportunity to ask questions of the lawyers as they close. It appears from news reports in the Baltimore Sun that Judge Williams took full advantage of this opportunity, particularly with respect to the prosecution’s closing.

State’s Attorney Bledsoe presented the state’s theory of the case: Officer Nero committed the crime of second-degree assault by touching Gray without having independently determined reasonable suspicion or probable cause for stopping and arresting Gray, respectively. Further, Nero committed the crime of reckless endangerment because he was responsible for ensuring that Gray was seat belted into the police van following his arrest.

Judge Williams appeared to be particularly concerned about the novel nature of the state’s theory on the second-degree assault charge, asking Bledsoe “”Every time there is an arrest without probable cause, it is a crime?” Bledsoe at first responded that it depends on the circumstances, but when further pressed by Williams she stated that it every arrest without probable cause is, indeed, a crime.

The novelty—some would say insanity–of this theory is obvious on its face. A substantial fraction of police arrests are determined by prosecutors after the fact to lack sufficient probable cause to justify prosecution. There is no record in any state of this extremely common purported failing by an officer otherwise operating in good faith being used to justify criminal prosecution of the officer. Instead, charges are dismissed and or seized evidence is deemed inadmissible.

On the reckless endangerment charge re: the alleged failure of duty on the part of Nero to seat belt Gray into the van , Bledsoe argued that it was simply impossible that Nero would not know the safety concerns related to placing someone in a vehicle without a seat belt. This argument was presumably made with a straight face, even though the Baltimore Police Department for it’s enter history had no requirement to seat belt suspects in police vans until adopting such a policy for the first time mere days before Gray’s arrest. So, the policy that was perfectly acceptable to the Baltimore Police Department for decades is now supposed to have been obviously reckless endangerment by a patrol officer a few days after the policy change.

Defense counsel Marc Zayon argued in his closing that Nero violated no laws, that he had no awareness that he was doing anything wrong, and that he acted in good faith an in accordance with his training and long-standing department practice throughout his interaction with Gray.

Further, whatever Nero’s role in Gray’s arrest and transport it was secondary to that of other officers—particularly Officer Garrett Miller in the context of Gray’s arrest and van driver Officer Caesar Goodson in the context of Gray’s transport.

As to the state’s argument that the use of the collective pronoun “we” in reporting on Gray’s arrest and transport to investigators, Zayon argued that this does not literally mean that every officer present was substantively involved with every facet of the arrest and transport. “If [football quarterback] Joe Flacco says ‘We had a great game, we had three interceptions, we kept the other team to 7 points,’ he means the team as a collective, he doesn’t mean he personally made an interception.”

Zayon also argued that Nero had never received training on seat belting prisoners in police vans, that there was no evidence that Nero had actually been informed of the just-adopted seat belt policy, that even if he had been informed he retained discretion to not seat belt depending on the circumstances, and that in any case it wasn’t Nero’s responsibility, but Goodson’s, to make sure Gray was seat belted in accordance with departmental policy. Further, such general orders as the seat belt policy are not laws for which criminal liability can be imposed.

Zayon further argued that the state’s reckless endangerment statute excludes incidents that involve the “use of vehicles,” (which are covered by other statutes that would generally be read as limited to the operators of the vehicles and thus would be inapplicable to Nero). Even if the reckless endangerment did apply, however, it would require that it was Gray’s ultimate injury was foreseeable to Nero and that there was no intervening act that was the causal mechanism of the injury—such as Gray deciding to stand up in the van while shackled at the wrists and ankles.

The state’s rebuttal to the defense closing was presented by Chief Deputy State’s Attorney Michael Schatzow. Schatzow immediately began to back-pedal on his colleague’s claim that any arrest without probable cause constitutes a criminal assault. He is quoted by the Baltimore Sun as stating:

Our position is that not every arrest that occurs without probable cause is a crime. Our position is that every arrest that occurs without probable cause and for which conduct for officers is not objectively reasonable contains all the elements necessary for a crime. Schatzow then argued that Nero’s failure to ask Lieutenant Rice—the commanding officer who initiated the pursuit of Gray—why they were pursuing Gray makes Nero’s participation unreasonable, and by extension unlawful.

Williams interjected with questions at this point, asking Schatzow: “The heart of your case is … the failure to ask means he’s committed a crime? It’s not a civil issue, it’s a criminal issue?”

Defense counsel Zayon had mentioned in his closing that Lieutenant Rice was during the relevant time period still pursing a second suspect, and not immediately available to be questioned by Nero. In response to this point, Schatzow suggested that Nero could have asked Gray why he was being arrested in an effort to determine reasonable suspicion and probable cause.

Judge Williams responded to this line of argument by saying, “I don’t understand the argument that it is the responsibility of anyone to ask Mr. Gray questions.”

On the reckless endangerment charge Schatzow said it was simply common sense that there was a risk to Gray’s life if he wasn’t seat belted into the van, and any police officer would know this. In response Judge Williams noted that the defense had sought to introduce into evidence the policies of other departments on seat belting, that the State had objected to this evidence, and that Williams had agreed to exclude it.

Schatzow and Williams also spent time going back and forth on just who really had legal custody of Gray once he was placed in the van. The defense position is that once the suspect is in the van he is in the custody of the van driver (here, Goodson), and no longer in the custody of the arresting officer. The state argues that Nero never in fact transferred custody to the driver.

To the state’s argument on this point Judge Williams inquired “When an individual is placed in the van, you’re saying custody stays with Nero until … when?”

And that’s about it for the closing arguments.

Among the interesting facets of this trial are the things once claimed to be all-important by state prosecutors that were, in fact, never raised at any point in the trial. Among these issues are: whether Gray’s knife was unlawful, whether the neighborhood in which Gray was arrested was a high-crime neighborhood (a factor in his Terry stop), and whether Nero responding to his superior’s (Lt. Rice) call for assistance in the pursuit of Gray was reasonable.

In any case, trial Judge Barry Williams has announced that he anticipates announcing his verdict in this trial at 10:30am on Monday, May 23.

In other news, I’ve just arrived at the NRA Annual Meeting in Louisville KY—indeed, I’m writing this post while in the media room, as I have press credentials this year. The meeting proper really begins tomorrow and runs through Sunday, and I expect I’ll have a post or two each of those days for those of you interested in gun stuff.

–-Andrew, @LawSelfDefense

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