In a remarkable deviation from his usual practice, Trial Judge Barry Williams has elected to release in written form his not guilty verdict in the “Freddie Gray” trial of Baltimore Police Officer Edward Nero. The entire verdict is embedded below, but I’ll highlight a few particularly interesting sections.
Here’s how Judge Williams framed the second-degree assault (and related misconduct) charge against Nero:
In order to convict the defendant of assault, the State must prove that the defendant caused offensive
physical contact with Freddie Gray; that the contact was the result of an intentional or reckless act of the defendant and was not accidental; and that the contact was not legally justified.
In order to convict the defendant of misconduct in office, the State must prove that the defendant was a
public officer, that the defendant acted in his official capacity, and that the defendant corruptly did an unlawful act. For this count, the State alleges that the defendant arrested Freddie Gray without probable cause.
And here’s how Judge Williams framed the reckless endangerment (and related second misconduct) charge against Nero:
In order to convict the defendant of reckless endangerment, the State must prove that the defendant engaged in conduct that created a substantial risk of death or serious physical injury to another; that a reasonable person would not have engaged in that conduct; and that the defendant acted recklessly.
Finally, in order to convict the defendant of the second count of misconduct in office, the State must prove that the defendant was a public officer; that the defendant acted in his official capacity; and that the defendant corruptly failed to do an act required by the duties of his office. For this count, the State alleges that the defendant failed to ensure the safety of Freddie Gray by failing to secure Mr. Gray with a seat belt during the process of Mr. Gray being transported in a police vehicle while he was in police custody.
Judge Williams also spoke to the State’s burden of persuasion–beyond a reasonable doubt on each and every element of each criminal charge:
The State has the burden of proving, beyond a reasonable doubt, each and every element of the crimes charged. If the State fails to meet that burden for any element of a crime, this Court is required to find the defendant not guilty of that crime.
It is notable that when one understands exactly what the State was required to do in order to achieve a conviction, and when one looks impartially upon the evidence available to the State, that it is immediately obvious that there was never any hope of achieving a just conviction in this case. It is for this reason that this prosecution, and arguably every prosecution in the Freddie Gray matter, is an absolute travesty of justice and an exercise in raw political power with utter disregard for the rule of law.
Judge Williams then goes into more detail on the specific elements required for the second-degree assault charge. These are (1) that Nero caused offensive, unwanted physical contact with Gray; (2) that the contact was intentional or reckless, and not accidental; and (3) that the contact was not legally justified. If any of these elements is not proven beyond a reasonable doubt, Nero must be acquitted of this charge.
It is the third element, that the contact was not legally justified, that presents the difficulty for the State. It is for this reason that they argued that Nero’s participation in the arrest of Gray was unlawful, and therefore not legally justified, unless Nero had endeavored, during an approximately 90 second window of time, to independently determine whether there had exists reasonable suspicion to stop Gray and probable cause to arrest him. The State’s theory of the case on this assault charge was that Nero’s good faith reliance on the judgment of his superior officer (Lt. Rice) and his colleague (Officer Miller) was insufficient to make his contact with Gray lawful.
Judge Williams resolves this issue in Nero’s favor by taking an interesting approach to the problem. Instead of making a determination of whether Nero’s conduct in arresting Gray was lawful, he simply concludes that Nero did not play a substantive role in arresting Gray at all. Rather it was Miller who made the “actual” arrest, as testified to both Miller (also charged in this matter) and another colleague, Officer Ross (not charged).
The State prosecutors had made much of the fact that when interviewed by investigators Nero had referred to the arrest of Gray using the pronoun “we,” to suggest that Nero was an active participant in Gray’s arrest. Williams made short work of this line of argument:
The testimony that was presented from Miller and the interview with the defendant, where both indicated that “we handcuffed,” is more in line with the habit of Baltimore City Police Officers who testify to speak in terms of what was done by the collective and not necessarily what is done by the individual. Therefore, the Court does not find that the use of the term “we” implicates the defendant in either participating in the initial detention of Mr. Gray or the subsequent decision to arrest Mr. Gray.
What’s interesting about Judge Williams’ approach here is that it allows him to avoid making a determination, in this trial, of whether Gray’s stop and arrest were or were not lawful. He sidesteps the matter entirely by simply finding that Nero was not substantively involved in the stop or arrest at all, and thus the matter is irrelevant in the context of Nero’s trial.
Judge Williams also discards the State’s argument that Nero had a legal duty to demand of the actual arresting officer, Miller, that he articulate his legal rationale for the stop and arrest of Gray before assisting Miller in the further processing of Miller in those tasks.
Furthermore, the Court does not find, with the facts presented, that there was a duty on the part of the defendant to ask any questions of Miller before he assisted with the continued detention and ultimate arrest of Mr. Gray.
For similar reasons, Williams quickly determines that Nero is not guilty of the misconduct charge related to the alleged assault. This misconduct charge involves three elements: (1) that Nero was a public officer; (2) that he acted in his official capacity; and (3) that he corruptly did an unlawful act. The first two elements are clearly met, but having already concluded that Nero did not act in an unlawful manner re: the assault charge, the third element must also fail on the related misconduct charge.
One particularly bizarre twists of this trail was when the State argued that Nero should be convicted on the basis of having engaged in a accomplice liability (criminal conspiracy). They did so even though Nero has neither been charged nor indicted with criminal conspiracy.
Their argument appears to be that even if Nero himself otherwise did nothing illegal, he should be held legally accountable for some criminal action committed by Miller, with whom Nero cooperated in Gray’s stop and arrest. Miller, of course, has not yet been tried in this case, so it remains an open question whether that Officer committed some criminal act. As noted by Judge Williams:
In order to convict the defendant of any of the charges under the theory of accomplice liability, the State would have to prove that a crime occurred; and that the defendant, with the intent to make the crime happen, knowingly aided, counseled, commanded, or encouraged the commission of the crime, or communicated to the primary actor in the crime that he was ready, willing, and able to lend support, if needed.
Since the assault and misconduct are based on a detention and arrest that this Court has already determined was effected by Miller acting alone … , and especially where there is no conspiracy charged, this Court does not find that accomplice liability on the charge of assault and misconduct is an appropriate application of the law.
Judge Williams then moves on to the charge of reckless endangerment and the associated misconduct charge:
I will now discuss the charges of reckless endangerment and misconduct in office. The State alleges that the next two criminal acts occurred at what is referred to as the second stop.
In particular, the State is arguing that Nero’s failure to seat belt Gray into the police van at this second stop constitutes reckless endangerment.
Williams begins by rather pointedly noting how limited was Nero’s activity at this second stop:
At three seconds of Exhibit 35, which is the video by Mr. Ross, the video shows the defendant kneeling down and placing his hands on Mr. Gray’s lower body. By eleven seconds, his hands are off. And at thirteen seconds, Rice jumps out of the van.
If you do the math, you’ll note that Nero is alleged to have had his hands on Gray for a total of eight seconds during this second stop, the point at which the State argues that Nero should be imprisoned for his failure to have seat belted Gray in the van.
To convict Nero on reckless endangerment, the State must prove beyond a reasonable doubt all of the following: (1) that Nero engaged in conduct that created a substantial risk of death or serious physical injury to another; (2) that a reasonable person would not have engaged in that act; and (3) that the conduct and that the defendant acted recklessly.
Williams noted that the crime of reckless endangerment is entirely independent of the consequences of that endangerment. Thus, reckless endangerment can occur regardless of whether any injury results. It is the reckless creation of the danger of injury that is the crime, not the injury (which, if it occurs, can be the basis for a separate charge).
Judge Williams disposes of this charge by finding that Nero’s conduct was reasonable, particularly in the sense that a reasonable officer in Nero’s position would have believed it to be the responsibility of the van driver, Officer Caesar Goodson (also charged) rather than himself to seat belt Gray into the van.
Two questions are at issue here. Question 1: Could an officer, similarly situated as the defendant, reasonably rely on the fact that an officer in the van with the detainee could and would, if required, seat belt the detainee, especially when that person is a superior officer? Question 2: Could an officer, similarly situated as the defendant, reasonably assume and rely on the fact that the transport officer, who presumably has custody, would and could make sure that the detainee now inside of his van is properly secured before driving off? The answer to both of those questions, based on the facts presented, is yes.
Williams also notes that during this second stop Nero’s superior officer, Lt. Rice (also charged) was actually physically inside the van with Gray, whereas Nero was outside. A reasonable officer in Nero’s position, Williams found, would have deferred on the seat belt issue to an officer in a better position to judge the circumstances inside the van.
As to the reasonableness of not taking steps to seat belt Mr. Gray, this Court finds that a reasonable officer in the defendant’s position and, in particular, the defendant, could reasonably assume that an officer, superior or not, in the back of the van would make a determination as to whether seat belting was appropriate under all the facts that that officer was aware of at the moment.
Judge Williams was also rather caustic with respect to the State’s claims that Nero was bound by a legal duty created by a newly created seat belt policy, known as policy 1114.
While the State did not present clear evidence of any protocol in the approximately 1500 pages of General Orders or directives concerning transfer of custody from an arresting officer to a transporting officer, a review of policy 1114, Exhibit 2, published on April 3, 2015, which may not have gone into effect until after the incident in question, does shed some light on the issue.
Although Williams discusses 1114 a bit, having already found that Nero acted reasonably he finds this argument moot for purposes of Nero’s trial. This issue may well, however, arise in the trials of the other officers, particular the van driver Goodson.
Williams then addresses the misconduct charge related to the alleged reckless endangerment:
In order to convict the defendant, the State must prove  that the defendant was a public officer;  that he acted in his official capacity; that  he corruptly failed to do an act required by the duties of his office.
As with the prior misconduct charge, the first two elements are clearly present, and the difficulty arises with the third. As Williams notes:
In order to fail to perform a duty, the defendant had to know about this duty. Out of the more 1500 pages of the General Orders, at best, there seems to be ambiguity on the issue of when custody is transferred concerning someone who has been arrested and is about to be transported by the non-arresting officer.
Judge Williams discusses at some length the various failures of the State prosecutors to prove that Nero either had a legal duty to seat belt Gray or, if he did, that he was aware of that duty, and concludes:
The Court is not satisfied that the State has shown that the defendant had a duty to seat belt Mr. Gray and, if there was a duty, that the defendant was aware of the duty. This Court finds that the State has failed to meet its burden to show that the defendant corruptly failed to do an act required.
The court also summarily dismisses the State’s criminal conspiracy argument with regard to the reckless endangerment and related misconduct charge:
The Court also finds that, under the facts presented, accomplice liability does not apply for the charges of reckless endangerment and misconduct.
Finally, Judge Williams concludes with his not guilty verdict on all charges:
Based on the evidence presented, this Court finds that the State has not met its burden to prove, beyond a reasonable doubt, all required elements of the crimes charged. Therefore, the verdict for each count is not guilty.
As promised, here’s the full decision:
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