Despite acquittal, Nero may still plead the Fifth

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Despite his acquittal Monday on assault and related charges stemming from the arrest of Freddie Gray last year, Officer Edward Nero may still have reason to invoke his right to remain silent as his co-defendants go to trial.

Though he did not testify at his own trial, Nero — who was found not guilty Monday of second-degree assault, reckless endangerment and misconduct in office after a bench trial — remains a possible witness in the remaining cases.

Nero was on bike patrol with Officer Garrett Miller and Lt. Brian Rice on April 12, 2015 and involved in the pursuit and detention of Gray. Prosecutors compelled Miller’s testimony in Nero’s case using Maryland’s immunity statute, which allows prosecutors to ask a judge to compel testimony they have deemed sufficiently important.

The state is barred by double jeopardy from prosecuting Nero for the same offenses no matter what he says on the stand in other cases, but he — like the other officers — remains the subject of a federal investigation. Federal prosecutors have said they will not announce any charges until all six officers’ trials conclude in state court.

“Unless and until he is provided confirmation from the Department of Justice that he will not be prosecuted, I would expect that Officer Nero would attempt to invoke his Fifth Amendment right against self-incrimination,” said defense attorney Warren S. Alperstein of Alperstein & Diener P.A. in Baltimore.

Nero would have a strong argument, according to defense attorney Adam Ruther, especially after the explanation of the relationship between state and federal immunity the Court of Appeals provided in ruling on a case involving another co-defendant, Officer William Porter.

After Porter raised the issue of looming federal prosecution in an appealing an judge’s order forcing him to testify at other co-defendants’ trials, the Court of Appeals cited Supreme Court case law that a state witness cannot be compelled to give testimony that might be incriminating under federal law without use and derivative use immunity. This type of immunity, which prevents the prosecution from using a witness’ statements or any evidence derived from those statements against them, has been deemed to provide as much protection as invoking the right to remain silent.

Immunity at the state level for Nero is practically unnecessary, according to Ruther, but with the possibility of federal charges, Nero will likely still require immunity before he testifies in state court.

“In this context, it may ultimately end up being necessary to immunize him,” said Ruther, an associate at Rosenberg Martin Greenberg LLP in Baltimore and a former city prosecutor.

University of Baltimore School of Law professor David Jaros agreed that the easiest way for prosecutors to secure Nero’s testimony over his claim of privilege would be to provide immunity, though they cannot charge him with anything.

“It’s sort of a little bit odd to say that it would be a grant of immunity because he’s already immune because of double jeopardy,” Jaros said.

Prosecutors have yet not indicated whether they are seeking Nero’s testimony in any of the of the other cases. The next co-defendant trial is Officer Caesar R. Goodson’s, which is scheduled to begin June 6 in Baltimore City Circuit Court. Goodson faces the most serious charges, including second-degree murder.