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Nero trial opens with dueling theories on Freddie Gray’s arrest

Prosecutors and lawyers for Officer Edward Nero were brief in their opening statements Thursday as they debated the reasonableness of Nero’s actions in the arrest of Freddie Gray and provided a clearer picture of their diverging theories of the case.

“We finally have some clarification as to what the prosecutors’ theory of the case is and some of the various defenses we might hear,” said University of Baltimore School of Law professor David Jaros, who observed Thursday’s proceedings.

Prosecutors previously estimated they would need three days to put on their case and will resume Friday morning after calling eight witnesses Thursday. Nero is charged with second-degree assault, reckless endangerment and misconduct in office.

Baltimore City Circuit Judge Barry Williams will decide the fate of Nero, who elected to forego a jury trial.

Williams said Tuesday he was “not going to be swayed by emotions” and did not hear much emotion out of attorneys Thursday, who calmly walked him through the events of April 12, 2015 and explained where they believed Nero was at key points.

“The one thing I think was new for people who were watching from the outside,” Jaros said, “was exactly what Officer Nero’s role was in the course of the arrest and the suggestion that in fact his physical interactions with Mr. Gray were much more limited than Officer [Garrett] Miller’s.”

Improper arrest

Deputy State’s Attorney Michael Schatzow claimed Nero, who was on bike patrol with Miller and shift commander Lt. Brian Rice, did not see Gray when Gray fled from Rice but responded to the foot-chase call.

Miller also pursued Gray and ditched his bike to chase him on foot, according to Schatzow. Nero rounded a corner on his bike and cut Gray off, which is when Gray surrendered to Nero and Miller.

Defense attorney Marc Zayon, of Roland Walker & Marc L. Zayon P.A. in Baltimore, offered a slightly different version of events and claimed surveillance footage would show Miller alone apprehended and handcuffed Gray, with Nero arriving on scene later.

But Zayon did not shift blame to Miller, instead saying that none of the officers’ actions that day was inappropriate.

Miller’s attorneys, Catherine Flynn and Brandon Mead of Mead, Flynn & Gray P.A. in Baltimore, were in the courtroom Thursday. Their client has been subpoenaed by the state to testify with use and derivative use immunity.

Schatzow claimed Nero participated in an improper arrest, the basis for the state’s assault charge, because he did not follow protocol for detaining and patting down suspects. An officer may pursue someone who flees unprovoked in a high-crime area but may only detain someone as long as necessary to confirm or dispel reasonable suspicion that criminal activity occurred, according to Schatzow.

Jaros said prosecutors appear to be willing to concede that police had the right to pursue and detain Gray, but did not question Gray or conduct any investigation once they apprehended him

“I think the prosecution’s theory is that at some point the detention morphed into an arrest,” he said.

Once Gray was handcuffed, he was then walked to a nearby location by Miller while Nero went to retrieve Miller’s bike, according to Schatzow. Gray was searched after being relocated, the prosecutor added.

“There was no frisk when he was originally taken down,” Schatzow said. “That’s something they would have done with two officers present.”

Nero “knew better,” according to Schatzow, citing a general order on stop-and-frisk procedures in place since 2006.

New policy

Zayon countered in his opening statement that Nero did not touch Gray during the initial detention until Gray began asking for his inhaler and Nero, a trained EMT, began searching for it.

The state’s reckless endangerment charge stems from Nero’s failure to secure Gray in the transport van when was placed inside with no seat belt, which Schatzow called “an issue of not caring.”

The bulk of Thursday’s witnesses testified about Baltimore Police Department training, policies and procedures related to use of seat belts in police transport vans. On cross examination, Zayon pointed out that officer safety is always a concern and policies are not law.

Schatzow said evidence will show Nero was actively using his department email the day a new policy was sent on seat belts in transport vans – a policy that removed officer discretion and required seat belts for all arrestees. Even if it were reasonable for Nero to be exercising discretion three days later, there was no officer safety threat, Schatzow said.

Zayon contended Nero was never trained on the new guidelines and behaved as any reasonable officer would. He said it is impossible to enter the cramped quarters of a transport van and safely seat-belt someone who is resisting.