Credit: Murphy, Falcon and Murphy
My former office, the Baltimore City State’s Attorney Office, concluded the prosecution side of the case against Edward Nero, one of the six police officers charged in the case of Freddie Gray. At this point, the state’s case has some holes that weren’t plugged.
Although the defense began its case, the burden of proof beyond a reasonable doubt remains with the prosecution. It’s a high burden and appears like an uphill Mt. Everest climb in Nero’s case. Judge Williams will decide if an “unfortunate accident” occurred as the defense alleges or whether a crime was committed.
Officer Nero was one of the three police officers on bicycle patrol who allegedly arrested Freddie Gray on April 12, 2015. Nero is charged with committing three crimes: assault on Freddie Gray due to a lack of probable cause to arrest Gray, reckless endangerment due to lack of a seat belt to restrain Gray and misconduct in office allegedly for violating police protocol.
At the center of the arrest charge is whether the police officer had the probable cause to arrest Gray. In essence, if Gray’s arrest was not legal, prosecutors allege an assault occurred as police would have no authority to touch Gray in the first place. An assault is an unwanted touching of a person. Prosecutors do not allege that Nero physically struck Gray. Ironically, defense attorneys usually argue that an arrest lacked probable cause—not the prosecution. By all accounts, to say the least, it is an interesting theory on assault. Evidently, the state alleges Gray was arrested before he was patted down which later revealed a knife on Gray.
The charge of reckless endangerment stems from the lack of a seat belt used to restrain Freddie Gray while in police van. Gray was found unconscious in the van after being driven for approximately 45 minutes. He died a week later due to spinal cord injuries allegedly sustained in the van.
Police protocol changed just prior to Gray’s arrest to ensure that officers restrained arrestees with seat belts. The defense issue raised is whether Nero read the email which made the change. However, co-defendant Officer Garrett Miller who testified for the prosecution’s side noted that it was the van driver’s responsibility to ensure that Freddie Gray was seat belted. A defense witness, William Longo, Chief of Police in Charlottesville, Virginia also testified and placed blame on the van driver. And in William Porter’s trial, he too placed the blame on the van driver, Caesar Goodson. Goodson’s day in court begins June 6.
The prosecution’s charge of reckless endangerment ties in with Gray’s spinal cord injury. The state attempts to show that the lack of a seat belt caused the injuries resulting in Gray’s death. Yet, when state witness Dr. Joseph McGowan, a biochemist testified, he did not know whether Gray’s injuries could be caused by a lack of a seat belt. Instead, he testified that Gray’s injuries were likely caused by sudden deceleration of the van. Whether the biochemist testimony will become a fatal flaw to the state’s case remains to be seen.
At this juncture, the prosecution’s case on reckless endangerment appears a long stretch. The assault theory is a novel one too. It could go either way. The case outcome on the assault will have likely repercussions on police if a guilty verdict is rendered, as it places criminal assault charges versus civil liability on an officer if an illegal arrest occurs. The more likely guilty verdict, if any, may be misconduct in office—assuming Judge Williams finds that Nero should have known about the email requiring seatbelts. Although the officers shift blame for lack of seat belt to the van driver, the police protocol did not limit responsibility.
As a former Baltimore prosecutor, it appears that the state should have pursued charges against Caesar Goodson, the van driver, William Porter, whose trial ended in mistrial and Sgt. Alicia White. These three officers appear to be the most culpable in Freddie Gray’s case and for the injuries which resulted in his death.
A verdict in Nero’s case is expected midweek.
UPDATE: Judge Williams will render a verdict on Monday, May 23. Closing arguments will occur on Thursday, May 19.
Washington, DC based Debbie Hines is a trial lawyer, legal analyst and former Baltimore City prosecutor. She is frequently seen on air on Al Jazeera, CBS, MSNBC, PBS, BET, Fox 5 DC, among others.