Heather Cobun//Daily Record Legal Affairs Writer//May 23, 2016
//Daily Record Legal Affairs Writer
//May 23, 2016
Baltimore City Circuit Judge Barry Williams deliberately walked a fine line Monday in finding Officer Edward Nero not guilty of charges stemming from Nero’s role in the arrest of Freddie Gray.
Williams determined prosecutors failed to present enough evident to hold Nero criminally liable. But the judge was careful to tailor his opinion to the facts in Nero’s case so as not to comment on the charges facing five other officers for their roles in Gray’s detention and arrest on April 12, 2015.
The explanation was “extremely helpful” and something not usually derived from a jury, according to Jason Downs, an attorney for Gray’s family.
“Judge Williams was meticulous in his thought process on why the state did not meet its burden,” said Downs, of Murphy, Falcon & Murphy. “We should all look to this opinion as a guidepost for reasonable doubt.”
Williams explained each element of the charges against Nero and what evidence was presented – or not presented – to support each, ultimately concluding the state did not prove all elements beyond a reasonable doubt.
“I don’t think that Judge Williams’ verdict was an absolute commentary on the state’s theory of the case,” said Adam Ruther, an associate at Rosenberg Martin Greenberg LLP in Baltimore and a former city prosecutor. “It was a commentary about the evidence in this case.”
Nero was the second officer to go to trial. Officer William Porter’s case ended in a mistrial in December.
Baltimore attorney J. Wyndal Gordon said the cases prosecutors have presented so far have had problems, and though he believes a conviction on for one of the remaining five officers is possible, he is not optimistic.
“After watching the Porter trial and this trial, we know the evidence really isn’t there to sustain convictions on a lot of these individuals,” Gordon said.
Prosecutors alleged Nero committed assault when he arrested Gray without probable cause. Gray was pursued by Nero, Officer Garrett Miller and Lt. Brian Rice after he fled from Rice unprovoked in what was deemed a “high-crime area.” He was then detained and placed in handcuffs.
Defense attorney Marc L. Zayon argued Nero’s actions were reasonable throughout his encounter with Gray, from the pursuit and detention to the arrest.
Williams explained Monday what he saw as the deficiencies in the state’s case, from a lack of evidence that Nero actually touched Gray during the arrest to Nero’s absence during a portion of the incident while he went to retrieve Miller’s bike.
Despite the intertwined nature of Nero and Miller’s roles on the day of the arrest, Williams’ verdict Monday did not necessarily forestall the case against Miller, according to University of Baltimore School of Law professor David Jaros.
“It’s a very narrow decision,” said Jaros, who was in the courtroom for the verdict.
Williams was careful to say he was basing his ruling on the facts presented in Nero’s case. Because the judge believed Nero was not directly involved in the arrest, he did not discuss whether the arrest could be an assault as prosecutors alleged, according to defense attorney Warren S. Alperstein said.
“The verdict doesn’t give you any insight into what he’s thinking regarding Officer Miller’s culpability [in the arrest],” said Alperstein, of Alperstein & Diener P.A. in Baltimore. “To get to the legality of the stop, detention and arrest, you have to make a factual determination that Officer Nero was even involved in that initial stage.”
Williams said the evidence showed Miller acted alone but added, “the propriety and basis for Miller’s actions are not before this court.”
The reckless endangerment charge against Nero stemmed from his assisting with putting Gray in a police transport van face-down with his hands behind him and his legs shackled, which prosecutors said placed him at substantial risk of serious bodily harm. Failing to secure Gray with a seat belt in the van also violated what were then-new Baltimore Police Department General Orders requiring all inmates be strapped.
Nero’s lawyers argued the order is traditionally more suggestion than rule because officers were expected to act with discretion based on the circumstances of each situation prior to the rule change.
Williams said it was reasonable for Nero to rely on either an officer in the van or the van’s driver to make sure Gray was properly secured in the van, and further found it would have been unreasonable to expect an officer in Nero’s situation to approach a superior and make a comment about using a seat belt.
For Miller, who is also accused of reckless endangerment for failing to secure Gray with a seat belt, Williams’ logic in Nero’s case is encouraging.
“I think Miller can glean more as it relates to the reckless endangerment charge and his duty to seat belt Freddie Gray than can be gleaned from the assault acquittal,” Alperstein said.
Prosecutors did not present any evidence to show the department followed its protocol for dispersal of new general orders or that Nero viewed the PDF that was emailed to him April 9 containing the new requirement to seat belt passengers, according to Williams.
Alperstein said the same issue came up in Porter’s case, and in the intervening months, the state has not been able to find proof the email with new general orders was opened by a defendant.
“It would appear it will continue to be difficult for the state to prove that the rank-and-file officers were aware of a change in the seat belt policy,” he said.
Williams also acquitted Nero on the second misconduct in office charge, stemming from the failure to seat-belt, because the state could not prove Nero had a duty to ensure Gray was transported properly or if he even received adequate training on transport vans.
Multiple defense witnesses as well as state witnesses on cross-examination said it is the van driver’s responsibility to seat belt or otherwise ensure the safety of passengers.
Officer Caesar Goodson, the driver of the van, is scheduled for trial beginning June 6. He is charged with second-degree depraved heart murder, involuntary manslaughter, negligent manslaughter by vehicle, criminally negligent manslaughter by vehicle, second-degree assault, reckless endangerment and misconduct in office.S