Image 01 Image 03

Freddie Gray Analysis: Edward Nero Trial Day 3

Freddie Gray Analysis: Edward Nero Trial Day 3

Prosecutor Rests, Seeks to Criminalize Good Faith Police Work

First, my apologies for not getting this post up last night–I’m in the process of riding the motorcycle to the NRA Annual Meeting in Louisville, and various delays just pushed last night’s arrival to too late an hour.

Yesterday the State presented the remainder of its case against Officer Edward Nero, and rested. The prosecution’s case turns out to be just as weak and ridiculous as every reasonable person has long since perceived.  In essence, the prosecution’s theory of criminal liability for Nero rests on the fact that when his superior officer, Lieutenant Brian Rice, radioed for assistance in chasing down a fleeing Freddie Gray, Nero complied with that request without first making an independent evaluation of whether reasonable suspicion existed for the stop or probable cause for the arrest.

Of course, such automatic good faith compliance with fellow officers in a pursuit and arrest is precisely what police are trained and expected to do.  If the officer requesting assistance is later unable to articulate reasonable suspicion or probable cause, that’s on the initiating officers, not on those who come to that officer’s assistance in good faith.  The notion that the assisting officers should face years in prison for such good faith conduct is utter madness.

By the same token, once an arrested suspect is brought to the police station to be secured in a holding cell, is the officer in that holding cell also supposed to independently determine if there existed reasonable suspicion and probable cause, or face criminal liability for not doing so?

When a suspect is presented at arraignment by a court bailiff or sheriff, is that law enforcement officer also supposed to independently determine if there existed reasonable suspicion and probable cause, or face criminal liability for not doing so?

State prosecutors would differentiate those situations fro Nero’s by arguing that the police station officer and the bailiff did not actually arrest the suspect, whereas Nero did.  The evidence that Nero actually arrested Gray is tissue thin, and contested by the great majority of the evidence.

As one of their final witnesses the State called to the stand Officer Garrett Miller, another of the six officers charged in the “Freddie Gray” case.  Miller is being compelled to testify under use immunity despite himself facing an upcoming trial.  Compelling a defendant awaiting trial to testify, even under immunity, has never before been done in the history of Maryland jurisprudence.

While on the witness stand and under oath yesterday, Miller testified that it was he and not Nero who arrested Gray.  As reported by the Baltimore Sun:

“Did there come a time when you and the defendant apprehended Mr. Gray?” Chief Deputy State’s Attorney Michael Schatzow asked Miller.

“I did, sir,” Miller responded.

He answered “no” when Schatzow asked if Nero participated in “grabbing” Gray.

The Prosecution countered that when interviewed by police investigators after the events in question Miller used the collective pronoun “we” in describing the officers’ actions.  It is, of course, common in the extreme for police officers to use the collective pronoun when describing conduct involving numerous officers, with necessarily meaning that every officer was involved in every facet of the conduct.

Upon the Prosecution resting its case the defense moved for judgement of acquittal, arguing that the state’s assault charge theory is based on “one misstated pronoun.”  Trial Judge Barry Williams denied the motion, and the defense began to present its case.

Given the late hour, the defense only got one witness in before the court recessed for the day.  That witness was former Charlottesville, VA Police Chief Timothy Longo.  Longo has been called as an expert witness on police responsibilities.  He also testified at the earlier trial of Officer William Porter, which ended in a hung jury.  (In an amusing coincidence, Charlottesville VA happens to be my motorcycle destination for this evening, and my launching-off point for riding the Blue Ridge Parkway tomorrow.)

OK folks, that’s all I have for now.  More to come.

In parting, here’s a picture of me on the Cape-May/Lewes Ferry, helmet hair and all, with my trusty bike in the background.  Life is good. 🙂

Andrew Branca Cape May

–-Andrew, @LawSelfDefense

BREAKING! The fully updated newest edition of our best-selling book has launched, “The Law of Self Defense, 3rd Edition”!

Attorney Andrew Branca and his firm Law of Self Defense have been providing internationally-recognized expertise in American self-defense law for almost 20 years in the form of books, live seminars & online training (both accredited for CLE), public speaking engagements, and individualized legal consultation.
“Law of Self Defense, 3rd Ed.” /Seminars / Instructor Program / Twitter /Facebook / Youtube


Donations tax deductible
to the full extent allowed by law.


Humphrey's Executor | May 17, 2016 at 12:46 pm

So to placate the mob the judge has to help keep up the appearance that there are actual triable issues of fact in favor of the prosecution. What a travesty.

Andrew, do you think the Judge denied the defense Motion because he really thought that the case should proceed, or because he just wanted to develop a full record, and give himself more of a basis to ultimately dismiss?

    JackRussellTerrierist in reply to Tank. | May 17, 2016 at 4:05 pm

    I think you’re grasping at straws. This judge has been biased toward the prosecution since the outset. The state’s case is based on several bizarre theories only, yet this judge, who is also black just like the rest of Baltimore’s ruling class, has gone along with the state hand-in-hand every step of the way.

    phiremin in reply to Tank. | May 18, 2016 at 8:55 am

    There is no way the judge was going to grant that motion. From what I understand, it’s a relatively common motion made by the defense and its rarely granted.
    It should be no suprise, as most of Judge Williams’ decisions have been slanted in favor of the prosecution.
    At best, he sees these as weak cases and expects acquittals, but wants to show the community that the process was more than fair and that the defendants didn’t get special treatment as cops.
    At worst, he is a social justice warrior who sees his current role as an extension of his time in the Justice Department putting away cops.

Andrew, you look like you’re having WAY too good a time!

“The notion that the assisting officers should face years in prison for such good faith conduct is utter madness.”

Yep. The idea that any responding officer has to make a detailed and independent investigation of his fellow LEOs conduct, facts, and evidence upstream is simply loopy.

Appellate courts will find it so, I am confident.

    legacyrepublican in reply to Ragspierre. | May 17, 2016 at 3:28 pm

    Appellate courts will find it so, I am confident.

    Rags, is it reasonable to infer from this that you are of the belief the judge is likely going to find him guilty and let the appellate court exonerate him?

    JackRussellTerrierist in reply to Ragspierre. | May 17, 2016 at 4:12 pm

    Meanwhile, another young officer’s career, future and possibly entire life are ruined by yet ANOTHER gang of ambitious bullies representing ‘we, the people’.

If I recall right this is bench trial.

My guess/hope is that trial Judge Barry Williams wants the defense to make the obvious case for not guilty so that he is not left holding the baggage, so to speak.

BTW: When you see that scruffy looking guy on the bike again, tell him that when gets to the James River visitor center to give a shout to my family in Lynchburg. And more photos, too.

While there may practical, perhaps even cowardly, reasons for denying the defense motion, I do not think there is any moral justification for the denial.

This is not only bad lawyering, it’s horrendous public policy, undercuts law enforcement brutally, and makes policing impossible. Play this to it’s logical end – I’m a beat cop and I get a call over the radio to apprehend a suspect. That person goes running past me. Instead of stopping her, I have to conduct an independent inquiry in the probable cause the others had in making the radio call to me? You might as well tell officers on the street to cuff their hands together at the beginning of a shift, and sit in their squad car on the parking lot.

    Gremlin1974 in reply to LWGII. | May 17, 2016 at 8:07 pm

    But before you can do that you have to catch the suspect first, lol.

    Cleetus in reply to LWGII. | May 18, 2016 at 8:44 am

    So now the “Ferguson effect” will be further morph into the “Baltimore effect” with the result of little to no policing of high crime areas. Of course, when crime rates increase even more, the public will demand action and reasons why the public is not being protected and when the “Baltimore effect” is mentioned, these activists will all act deaf, dumb, and blind.

Enjoy your bike trip!

These cops are being put through the wringer. This Kafka-esque kangaroo court is disturbing.

Humphrey's Executor | May 17, 2016 at 2:00 pm

Question: If the judge makes certain findings and conclusions in the present case i.e., that there was a proper Terry stop, and that there was probable cause to arrest — won’t the Prosecution be collaterally estopped from re-trying those same issues later on before the same judge? If so this case may help take out some trash for later on.

Andrew Wear some heavy clothes it’ s still cold up there at 2800 ft . You can’t beat the view though .

Humphrey’s Executor
He will probably rule that Miller , not Nero made the arrest and skirt the whole issue of probable cause for next time with Miller .
The seatbelt issue may have implications for Nero , but Miller walked away , to write up arrest report.

    Humphrey's Executor in reply to dmi60ex. | May 17, 2016 at 2:39 pm

    Good point. But if the Prosecution insists on pursuing some kind of imputed or accomplice liability theory, the court will at least have to throw that cockamamie theory out, hopefully once and for all. Its one of those arguments that’s so stupid there’s no case law on it.

Darren Wilson unavailable for comment?

A bench trial before Judge Williams concerns me. He will likely find Nero guilty of failing to secure Mr. Gray with a seat belt and acquit on the assault charge related to giving Gray the inhaler. .

Given the political climate in Baltimore I think the best Nero could have hoped for is a hung jury. I am not confident the appellate Courts will overturn a conviction.

How very sad

    Gremlin1974 in reply to sidebar. | May 17, 2016 at 8:10 pm

    Frankly that is what I am expecting, dismissal of all the charges except one misconduct charge for which he will find him guilty on some shaky ground that will be overturned at appeal.

      That does seem to be a theme:

      “The court finds you not guilty on the charges of murder, mayhem, arson, kidnapping, and robbery, but guilty on the charge of jaywalking. Sentence is one week in jail, suspended.”

      Press: Historic court case ends with guilty verdict.
      Prosecutor: We are proud to see justice is finally done and that this criminal will spend time behind bars.
      Victim/Defendant to his lawyer: “So now that the case is over, can you recommend a good bankruptcy lawyer?”

    phiremin in reply to sidebar. | May 18, 2016 at 9:04 am

    It’s a really tough call. As a white cop accused of assaulting a black suspect, would I rather face a Baltimore jury or a judge who has demonstrated a clear pattern of bias in favor of the prosecution?
    While I have nothing to base this on, perhaps I like my chances of succeeding on appeal better with a guilty verdict from a judge who has clearly shown bias versus a jury.

Sorry if this is obtuse, but I don’t understand “guilty of failing to secure…”. That isn’t an offense, IIRC. So…???

inspectorudy | May 17, 2016 at 3:29 pm

I know, after having seen her on TV, that the state’s attorney Mosby is not totally stupid so all I can think of is that they are getting what they intended in the first place, time. The riots have ended and the world’s eye is not on them any longer. They now can allow this travesty to be played out and most people will show no interest. I do not think this is the correct or moral way to do this but it has served its purpose. If this is not the reason behind the scene then someone should be prosecuted.

While the idea of having a bench trial when the prosecution’s case is so patently ridiculous is sound, I SERIOUSLY question the judgement of asking for a bench trial with this particular judge.

He’s proven multiple times in the previous trial AND this trial that he is willing to making shockingly bad judgements that have nothing to do with the law.

Acquittal after the prosecution’s laughably weak case should have been a no brainer. This makes me think the judge is going to pull a Roberts and twist himself in circles to find him guilty of something, not because its the law, but because its the ‘right thing to do’.

    healthguyfsu in reply to Olinser. | May 17, 2016 at 3:59 pm

    It could be worrisome. However, I think any Baltimore judge would have dismissed the motion for acquittal because it’s only fuel for the race hustlers to acquit on summary judgment.

healthguyfsu | May 17, 2016 at 3:56 pm

Cville is good country and you are coming at a great time of the year (rain-permitting of course)!!!

    Well, I’ve been riding in continuous hard ride for four hours now (stopped for some Chick-fil-a).

    The passage over/through the Delaware Bay Bridge/Tunnel was not as scenic as the last time I came through. 🙂

    Fortunately, I have electrically heated and waterproof riding gear (not the gloves, sadly, not sure there’s truly waterproof & still comfortable gloves exist), so I’m actually quite cozy. It does make the riding much more energy intensive, though, so I’ll be sleeping soundly tonight in Charlottesville.

    If it’s going to rain like this tomorrow, I’ll be skipping the Blue Ridge, and I’ll try hitting it on the way back home instead.

    –Andrew, @LawSelfDefense

healthguyfsu | May 17, 2016 at 3:57 pm

BTW, is the NRA meeting in VA? I would have thought if little Bloomberg-backed Terry had his way, they’d be met at the border by an entire state police squad and forced to make a U turn.

If Nero gets convicted will he have to serve right away or does he get to stay out pending appeal?

Charlottesville , Stop by Monticello , it is interesting to see his polygraph writing machine and his massive clock. Very good tour. It surprised me how small it was .

Going to do the Dragon?