On February 4, Baltimore prosecutors appealed Judge Barry Williams’ decision that William Porter cannot be compelled to testify in the upcoming trial of officer Edward Nero charged with misdemeanor assault of Freddie Gray. For those who are not keeping score, 6 officers are charged. Three officers, William Porter, Caesar Goodson, Jr. and Alicia White are primarily charged with manslaughter with the van driver, Goodson being also charged for second degree murder. Porter’s case ended in a hung jury. Three arresting officers, including Edward Nero, William Garrett and Lt. Brian Rice are charged with misdemeanor assault and other misdemeanors.
Nero’s case was set to begin February 22 until the State decided to appeal Judge Williams’ ruling. Goodson and White’s trials are already on hold pending an appeal decision by the defense.
The trial against William Porter ended in a hung jury in December. And the State offered Porter limited immunity to testify against Goodson whose case was scheduled for January. Porter’s case was rescheduled for June, 2016. Judge Williams ordered that Porter must testify against Goodson. And defense lawyers for Porter appealed. Those appeal arguments will be heard in March, 2016 before the Court of Special Appeals.
The next cases up for trial were those of the three arresting officers, Edward Nero on February 22, and Lt. Brian Rice and Garrett Miller in early March. The prosecution, in what is likely perceived as a delay tactic, now says for the first time that William Porter’s testimony will be needed in Nero’s case. Porter doesn’t even arrive until after the three officers arrested Gray. Judge Williams denied the State’s request to compel Porter to testify in Nero’s case which prompted the prosecutors to appeal. I could be wrong but it looks like a delay tactic in Nero’s case so the appeals court can rule on the decision in Goodson’s case.
There does not appear to be any good reason to delay the trials of Nero, Rice or Miller. Originally, the State sought to try the 6 officer cases in the order with the three manslaughter/2nd degree murder cases being tried first and then the three misdemeanor assault cases tried last. The mistrial of Porter threw a monkey wrench in that order. Now the State appears to be trying to buy time to get the cases back on track again.
While no lawyer would have foreseen a mistrial, one did occur. Mistrials are highly rare. But with the next officer cases scheduled for trial, the State should have tried them. Sometimes you need to work with the hand you’re given. A delay is never helpful to the prosecution. Maybe the State doesn’t want to try Nero next because his case is a weak one.
The strengths of the cases against Nero, Garrett and Miller are questionable at best. Charging an officer with a second degree assault, a misdemeanor, differs from charging a regular citizen. Police are given latitude to use some measure of force in effecting an arrest. While the videos do show Freddie Gray crying out in pain and witnesses excitedly uttering that Gray was injured, it does not necessarily amount to a second degree assault charge against the officers. The officers will undoubtedly allege that they used reasonable force to effectuate the arrest of Gray. And officers are judged by what is a reasonable standard for a police officer under the circumstances.
Much of the cases against the three officers charged with assault on Gray hinges on whether the initial arrest was lawful—an arrest before finding the knife on Gray. Judge Williams has not decided that issue in Nero.
From a strategical point of view, the delays now caused by the State appear to show weakness in the three misdemeanor assault cases. If a case is good and has merit, it should not matter what order the cases are tried in. The outcome of Nero’s case has no legal bearing on the other cases. The cases of Nero, Miller and Garrett should be tried without delay.
Washington, DC based Debbie Hines is a trial lawyer, legal/political analyst and former Baltimore prosecutor. She often appears in the media as a legal analyst on Al Jazeera America, BET, CBS, C-Span, Fox 5 DC, Sky News and MSNBC. Her op ed’s appear in the Washington Post, Huffington Post, Baltimore Sun and Baltimore Afro American.