Judge Barry Williams today acquitted Officer Edward Nero on all counts brought against him for his treatment of Freddy Gray, who died in police custody. Nero was acquitted of second-degree assault, reckless endangerment, and two counts of misconduct in office.
The prosecution argued that Nero assaulted Gray by detaining Gray without justification. The reckless endangerment charge was based on his role in putting Gray into an arrest wagon without buckling a seat belt. The misconduct charges were along for the ride (so to speak).
Judge Williams found that there are “no credible facts” to show that Nero was directly involved in Gray’s arrest. As for putting Gray in the van, he found that this was the driver’s call and that Nero’s conduct not unreasonable given his training.
The assault charge was incredibly weak. For one thing, it was a novel way of dealing with an allegedly improper police apprehension, according to experts.
It didn’t help that the prosecution had to change its theory of the case against Nero. Initially, it charged him and fellow officer Garrett Miller with wrongly arresting Gray for having an illegal knife, which it said was legal to possess under state law.
But it had to abandon that theory after defense attorneys noted the knife was banned under city code. Oops. So instead, the prosecution argued that the officers did not follow legal requirements in how they went about stopping Gray before finding the knife.
But the facts didn’t support charging Nero. Officer Miller, who faces the same charges as Nero, was granted immunity and forced to testify by prosecutors. He testified that he alone caught and handcuffed Gray. Nero, meanwhile, went to retrieve their bicycles.
To make matters worse for the prosecution, Brandon Ross, one of Gray’s friends, supported Miller’s testimony about the arrest. Prosecutors alleged that Miller twisted his story to help his “buddy” Nero, but Judge Williams noted that Ross had no such incentive to lie.
Nero did help place Gray, unbelted, in the police van. Three days before Gray’s arrest, a new directive was issued requiring the police to buckle up detainees.
However, Nero’s lawyers argued that (1) there was no evidence to show Nero received the new directive (a sergeant testified that it had not been distributed or read at daily roll calls) and (2) it is the van driver’s responsibility to ensure that a detainee is secure.
These argument persuaded Judge Williams. He found that there was no evidence that Nero acted inconsistently with his training and that it was not unreasonable for Nero to defer to a supervisor’s determination about whether to belt Gray.
Williams, it should be noted, is an African-American who used to prosecute police misconduct cases for the Department of Justice. There can be no credible argument that he is biased against the prosecution or in favor of the police.
Nero’s is the second trial in the Freddy Gray matter. Last year, a jury declined to convict Officer William Porter. The case ended in a mistrial.
The two trials represent a considerable black eye for the prosecution and, in particular, for State’s Attorney Marilyn Mosby. She, by the way, did not attend the reading of the verdict. What a stand up gal.
What does today’s decision suggest about the outcome of the five remaining prosecutions (Porter will be retried)? Not much, from a purely legal standpoint. Unlike Nero, Officer Miller did arrest and handcuff Gray. Keep in mind, however, that under the grant of immunity to Miller, the prosecution won’t be able to use his testimony in Nero’s case against him.
The remaining officers, as I understand it, will be prosecuted based on what happened subsequent to Gray being placed in the van. And the driver of the van, Officer Caesar Goodson Jr. who is scheduled to be tried in two weeks, won’t be able to shift responsibility for not restraining Gray, as Nero was able to do.
But today’s defeat might nonetheless affect subsequent trials. The decision by a respected African-American judge may signal not only that’s it’s okay to acquit in these cases, but that the prosecution has overreached.
The credibility of Mosby’s office is in doubt, and should be. Tyler Mann, a Baltimore defense lawyer who previously served as a prosecutor in the office of the Baltimore City state’s attorney, may be right to view the decision “a real shot across the prosecution’s bow.”
UPDATE: Here is Andy McCarthy’s report on the acquittal.