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Experts: Nero’s choice of bench trial a smart decision

From Left at the motions hearing for Officer Edward Nero where he opted for a bench trial- Attorney Marc Zayon, Officer Edward Nero, and Allison Levine. (The Daily Record/Maximilian Franz)

From Left at the motions hearing for Officer Edward Nero where he opted for a bench trial- Attorney Marc Zayon, Officer Edward Nero, and Allison Levine. (The Daily Record/Maximilian Franz)

Officer Edward Nero’s decision to proceed before a judge on his misdemeanor charges stemming from his actions during the detention and arrest of Freddie Gray did not surprise legal experts, who say the nuanced issues posed by his case are best dealt with by a more sophisticated fact-finder.

“It’s very difficult for jurors who are lay people to grasp the complex Fourth Amendment privileges that underlie this case against Nero,” Warren S. Alperstein, of Alperstein & Diener P.A. in Baltimore, said Monday. “Certainly, a judge would be the best person to do that.”

Baltimore City Circuit Judge Barry Williams said during a motions hearing Tuesday that a judge is presumed to know the law, adding, “I’m certainly not going to be swayed by emotions.”

Even leaving aside the issue of biased jurors, which defense attorneys have repeatedly brought up in their motions for change of venue, a bench trial is a smart decision, according to David Jaros, professor at University of Baltimore School of Law.

“This case may turn on difficult issues of law that he might feel more confident a judge will apply correctly,” he said.

Nero was on bike patrol with Officer Garrett Miller and Lt. Brian Rice on the morning of April 12, 2015 when Rice made eye contact with Gray near the corner of North Avenue and Mount Street and Gray fled, according to court files. Nero and Miller pursued Gray, who was handcuffed and subject to a pat down, which turned up a knife.

Nero is charged with second-degree assault, reckless endangerment and two counts of misconduct in office. Prosecutors allege Nero engaged in criminal misconduct by unlawfully detaining and arresting Gray.

The state’s theory on the assault charge will turn on when Gray was technically in custody, according to Jaros, and “may raise the question of what it means to be placed under arrest.”

Being in front of a judge, however, may eliminate the necessity of calling experts to describe the law on custodial arrests and allow the trial to move quickly, Jaros said. Prosecutors said they expect their case to take three days and defense attorneys expect to need two.

Nero’s case is “full of interesting legal issues,” Jaros said, and could have “profound implications for the law of policing.”

Theory of the case

Williams also ruled Tuesday morning on 13 outstanding pretrial motions, including ones to dismiss charges and requests to prohibit certain evidence or arguments.

Though the judge declined to dismiss the reckless endangerment and assault charges against Nero, which defense attorneys claimed were not sufficiently alleged by the indictment, Williams did grant some defense requests, in full or in part, ahead of trial.

References by prosecutors to the knife recovered from Gray at the scene will not be permitted, according to Williams, because the state’s theory of the assault charge suggests they believe the crime occurred before the knife was found, making it irrelevant. If the defense chooses to bring up the knife, Williams said, the issue could be revisited.

Prosecutors may be able to offer medical expert testimony to show Nero’s actions created a substantial risk of death or serious injury, an element of reckless endangerment, but will not be permitted to testify to the specifics of Gray’s injuries. Prosecutors also will be prohibited from playing the audio that accompanies citizen video taken at the scene of the arrest and may only play videos that show Nero’s actions.

“The interesting part of the case is that you’ve got the public focused on the tragic death and injuries to Mr. Gray in the van and the palpable cries of agony that we saw in the video,” Jaros said. “What is foremost in the minds of the public is actually a side issue in terms of the legal charges in the case.”

Nero is represented by Marc L. Zayon and Allison Levine of Roland Walker & Marc L. Zayon P.A. in Baltimore.