Freddie Gray Trial: Official Transcript of Not Guilty Verdict
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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So in the Judge’s determination not to make a ruling of the legality of Gray’s arrest, is he protecting himself (or the next cases) for the future trials so those defense attorney’s can’t point to his ruling and say “see, the judge says right here that Gray’s arrest was lawful!”?
Thanks for this, I’m not a lawyer and I don’t even play one on TV but I’m a firm believer in the principal of everyone being equal before the law. I find it interesting how Officers of the Court read and apply the law.
Your presentation here is 90% of the reason why I read this blog in the first place.
Ignore the downvote. Trying to scroll with my thumb on a smart phone – nuf said ~
Note how by not reaching any conclusion about the legality of the arrest or the failure-to-seatbelt, he has kept his official neutrality on those matters, and can thus continue to preside over the trials where they will be at issue. To acquit Nero it was sufficient to find that he had nothing to do with the arrest, or with the decision not to seatbelt, regardless of their legality.
You can bet there are defense teams combing through this with a nit comb today, looking for any clue as to how to best proceed.
I personally think the judge has sent some pretty clear signals to the state, and they are assessing how they can move forward, as well.
Of the lawyers involved, I’d much prefer to be on the defense side of the quagmire. The state has too unreasonable a “client”, and they’ve raised some expectations they must now regret.
I say Miller is in a good position. Probable cause is the knife. The other charges mirror the charges against Nero.
I may be over-reading judge Williams, but my take is that he signaled the state that there was no part of their case he didn’t find stinks.
He was never close to convinced of the merits of the prosecution case, near as I can tell.
If I were Mosby, I’d be looking for some way out of this.
LOL. Bet she’s squirming.
“If I were Mosby, I’d be looking for some way out of this.”
She has already found a way out – systematic racism. That is the narrative they have pursued since the beginning, and they will blame it for the system refusing to convict.
There’s always that fall-back position. “It’s the system.” We’ve already heard it from a “Reverend” on the courthouse steps.
But the question is whether the state can back out of any of these cases without a lot of hot consequences.
I think they can. The question is, will they go full tilt past any semblance of ethics and reconfigure charges against the remaining defendants, or will they wise up and cut and run, rolling the dice on the mobs? I think it’s the former.
I think that point will come with Goodson’s trial and hopefully acquittal. He is the one that is charged with the “worst” crimes and therefore in the prosecutions narrative he gets the part of lead villain. If they can’t get at least one guilty conviction on him then they will probably step back or at least that would be the smart thing to do, but I have never accused this office of being smart.
I disagree. I think by avoiding the two larger questions left unanswered, the judge is throwing the prosecution a life-preserver.
He did exactly what a judge is supposed to do. Judges are supposed to avoid ruling on any question that isn’t necessary to decide the case before them, and that’s what he did. It also means he hasn’t prejudged the other cases, so he won’t have to recuse himself, which is a good thing.
I find these 2 statements by the judge to be particularly telling.
“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,”
“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.”
Especially the first one where he questions if the policy had actually gone into effect. Without the requirement to seat belt Gray a large part of the prosecutions case falls apart and pretty much just goes away. Or so it would seem to me.
I never expected him to make a ruling on the arrest and probable cause issue in this trial, but over all I think his decision bodes well for the defense and probably had Mrs. Mosby stalking down the halls of the office like the new villain of Star Wars Kylo Rhen.
Note that the prosecutors have now conceded that the original Terry stop was legal and proper, though they contend (for some reason) that the subsequent arrest was not. Presumably they will be held to this position at the other trials.
The latter has always bothered me. Why wouldn’t the arrest be legal? The prosecutor’s office kept saying that the knife was legal under MD law. But that is essentially irrelevant since Grey was cited under a Baltimore ordinance, under which the knife was illegal. As we all know here (thanks to AB’s hard work), the Baltimore ordinance, and not MD law, was cited in the original arrest paperwork (and this was filed before Grey died, so isn’t a cover up). A police review agreed that the knife violated the Baltimore ordinance, and even if they were wrong (unlikely in my view), that is strong indicia that the probable cause was reasonable (if experienced police supervisors think that it is illegal there, it wasn’t unreasonable for the low level cop on the spot to have believed the same).
The thing that bothers me is that the prosecution will probably look like fools when the try to prove the arrest was illegal, after admitting that the Terry Stop was legal. If they try to claim the knife legal under MD law, the defense will just introduce the arrest paperwork to show that Grey wasn’t cited under MD law, but rather under the Baltimore ordinance. They should have realized this from early on – we all did here (again, thanks to AB who posted it). Why do they persist? I think it is all political, on the part of Mosby, in order to further her husband’s political aspirations, and thus quasi-illegal, or at least unethical. Hope there is someone there in MD willing to do the work to file a grievance after this is all over.
The other thing to keep in mind is that the knife was apparently in plain view, clipped to Grey’s belt or something. This means that the police didn’t need to frisk him in order to temporarily disarm him to protect the police during their discussion with him pursuant to the Terry Stop. Not overly relevant, except that it means that the prosecution cannot argue the reasonableness of a pat down, since none was apparently necessary.
I just want to point out that while I am sure Gray was “frisked” that is not how Miller has reported finding the knife in question.
From page 2 of Grays arrest documents.
“This officer noticed a knife clipped to the inside of his right front pants pocket.”
So the knife wasn’t found during a “Frisk”. Pretty much everyone has seen knives with a “clip” mounted to the side, I own several myself. These vary in size and from what I have read Gray’s was of medium length and therefore, I would anticipate that Miller will testify that he saw the knife, since it would be easily recognizable from even several feet away and initially removed it due to officer safety and would have more than justified a full pat down. Once he had the knife in hand it was inspected and found to have the opening mechanism that was against city ordinance and lead to Gray’s arrest and transportation.
Also, while it is not against the law for a felon to carry a knife, a felon in possession of a knife with an prohibited opening mechanism is a different story.
I noted the passage “The state concedes that pursuant to Wardlaw and Terry, that Miller had a right to stop Mr. Gray,” yesterday in a prior post and wondered on what basis the arrest itself would be unlawful. As far as I know, unless the frisk itself was deemed illegal, the question of the knife being illegal under Baltimore city law (which is the applicable offense that Gray was charged with) has been settled.
Well, it hasnt’t been settled in court. As far as I know the prosecution is still maintaining that the knife was legal. How they’re maintaining this I have no idea, but until they’re called on to prove it they can maintain any proposition they like.
Um, s/legal/illegal/ of course.
Switch ’em back. More coffee!
Right, of course. Knife legal, thus arrest illegal. The defense says the knife was illegal, thus the arrest was legal. I was indeed seriously coffee-deprived.
I feel for ya. I get the same thing every day before my fourth cup.
Even if the knife was determined at trial to be legal (which I don’t believe), It would appear to provide adequate probable cause.
First-rate reporting, Andrew. Thanks
I understand Mr. Gray was combative and uncooperative. Wasn’t he safer on the floor of the van, than belted sitting upright in with a seatbelt.
I am not a LEO, but in my travels through New York I have seen suspects deliberately bang their heads against windows and kick out.
There is actually a credible argument there, in fact it has been reported that even if the “must seatbelt” policy was in effect that a provision for the officers involved to decide if the seatbelt can be left off for safety.
Thank you, @Andrew, for the excellent synopses!
This is an interesting decision.
The assault and official misconduct charges could have been easily dealt with by simply ruling as to the legality of the initial stop and frisk and the arrest. And, as the state contended that the arrest was not legally justified it really should have been addressed by the court. However, the judge sidesteps that issue entirely by focusing, with laser-like precision, on whether Ofc. Nero was directly involved in the initial stop and the arrest. Now, this could simply be an example of judicial restraint, basing a decision on the narrowest parameters possible. Or, it could be another indication that the judge is attempting to “save” the cases against other officers.
The reckless endangerment decision seemed to hinge solely upon whether Nero had direct knowledge of the I114, tyhe revised seatbelt policy. He decided that it did not apply as the state could not show such knowledge. However, again he ignores the far wider reaching evidence that such policies are simply that, policies, and that such policies are expected to be followed, modified or even ignored, depending upon field conditions pertaining at the time. Also, he completely ignored any argument, by the state, that the lack of a seat belt led, in any way, to the injury suffered by Mr. Grey. Even now, we have no idea if the actions of the van driver caused, or in any way contributed to, Mr. Grey’s injuries or even if the injury was self induced by the direct actions of Mr. Grey himself. Simply assuming that a seat belt would have totally prevented Mr. Grey from receiving a head injury, is ludicrous, as it totally ignores the fact that even restrained by a lap belt, Mr. Grey could still have caused himself a significant head injury by slamming the back of his head against the wall of the van.
So, this decision was rendered, in the manner that it was, to conform to existing law and the some of the evidence presented at the trial, while limiting the negative impact the not guilty verdict will have on subsequent trials. Ofc. Nero is rightly found not guilty, but not exonerated, and critical issues, which affect all the cases, remain unaddressed.
[A]s the state contended that the arrest was not legally justified it really should have been addressed by the court. However, the judge sidesteps that issue entirely by focusing, with laser-like precision, on whether Ofc. Nero was directly involved in the initial stop and the arrest.
I disagree. It wasn’t a sidestep in this case, so much as a dismantling of events.
The fact-finding determined that Ofc. Nero was not involved in Freddie Gray’s arrest. Thus, whether or not the arrest was justified is a moot point. It doesn’t matter for the purposes of this trial.
It’s like questioning whether Mark O’Meara was legally justified in shooting Trayvon Martin in self-defense. The legal justification is moot, because it wasn’t Mark O’Meara who pulled the trigger.
No, it was a side step. The whole crux of the state’s case, with regard to the assault and official misconduct charges, which run throughout the cases here, is that the arrest and/or the stop was illegal.
In the Nero case, the state contended that Nero’s actions were not legally justified because he had no personal knowledge PC existed for the arrest or RAS for the stop. However, there is mountain of case law which clearly stipulates that a good faith reliance upon PC or RAS held by another officer is sufficient to act in support of that officer. If it turns out later that such RAS or PC was lacking, then, in most cases, qualified immunity attaches to the actions of the officer involved. But, if it later turns out that such RAS or PC did, in fact exist, then there is never any question that the actions of the officer were proper. If Nero had sufficient grounds to reasonably feel that the detention and arrest were not justified, he has a duty to take action to stop an illegal detention or arrest. But, as we all know, there were no grounds at all to suspect that to be the case.
So, essentially, the state inferred that such RAS or PC did not exist and, therefor, Nero acted inappropriately. For, if the stop, frisk and arrest were legally justified, then Nero’s actions would not rise to assault or official misconduct. During the trial, the states was forced to stipulate that under Wardlaw and Terry, Ofc. Miller had the legal right to stop Grey. Which begins to undermine its contention that the stop, frisk and arrest, of Grey were unlawful.
I agree it was a side step, but I think it was a necessary one. If he had ruled the stop legal and justified he was afraid it would look like he was torpedoing the states case and that is something no judge wants.
“I disagree. It wasn’t a sidestep in this case, so much as a dismantling of events.”
There was no need to get bogged down in a breach of duty issue when the judge found that no duty existed to begin with.
No duty = no breach of duty.
Mr. Branca summarizes:
“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.”
The officer with the greatest potential for criminal liability is poor Officer Caesar Goodson. How this affects Mosby’s theme of “systemic racism”, other than remarkable irony, is anybody’s guess.
Great take-down on the Nero issues, Andrew. Sliced, diced and easily digested.
Like well-prepared Chinese food. Except eating that is cultural appropriation. This must mean I’m limited to a diet of haggis, mutton, and Scotch.
I’ll get by…
It doesn’t matter, because that “greatest potential” is still zero. Yes, when his trial comes up all the substantive questions will actually have to be addressed, but the answers to them are obvious, and favorable to Goodson.
I’d be interested to hear anyone’s comments on the over/under for bench versus jury trials for the remaining defendants.
I call: Miller and Rice – bench trial
LOTS of pros and cons to weigh.
Miller I think will go with a bench trial.
Rice…not so sure. I’d have to review his charges, and think about how a jury will relate to him. Bench trial likely.
Goodson…again, lots to weigh. A jury might be best, but it would depend on the evidence to a very large extent. His defense should know that to a fair-thee-well before going in. Too many unknowns for me.
Beyond that, without a conviction, I think the remaining defendants have a good chance of never seeing trial.
I’ve forgotten the defendants’ order of trials, but if the three white guys all were acquitted on bench trials, Goodson could try for an all-black jury and definitely get a walk. Those jurors would be so pissed off the white guys “got away with it”, they’d make sure that a black guy didn’t take the whole load.
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.
In other words, the State’s theory of the case is the completely bizarre scenario in which Nero’s good faith reliance on the judgment of Lt. Rice and Ofc. Miller was … made in bad faith.
Would that be an accurate way of putting it?
Right, lol. The prosecutor even asked one of the police dept. witnesses why Nero didn’t just ask Freddie what he was being arrested for.
I’m not joking.
Well at least the judge stepped on this argument, we probably won’t see it again