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

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