Law & the Courts

Travesty in Baltimore, Next Chapter: Officer Acquitted in Second Freddie Gray Trial

Mosby announces charges in the Freddie Gray case, May 1, 2015. (Adrees Latif/Reuters)
The officer should not have been charged in the first place.

The second officer to be tried in the Baltimore prosecutions arising out of Freddie Gray’s death in April 2015 has been acquitted in a bench trial.

The case against the officer, Edward Nero, was among the most inane brought by the incompetent, race-baiting prosecutor, Marilyn Mosby. As we’ve previously recounted, Gray died after suffering a severe spinal injury while in custody in a police van. Back in December, the first officer to be tried, William G. Porter, got a mistrial after a hung jury and is to be retried later this year.

Gray, a 25-year-old African-American man with a police record involving drug charges and minor crimes, was apprehended while acting suspiciously during a police crackdown in a high-crime area of Baltimore. Upon making eye contact with an officer he fled, leading police to chase and stop him, and to find a knife on his person. He was thus arrested. When placed in the van, Gray was wildly uncooperative with police, who did not belt him into his seat.

The medical examiner eventually concluded that police had no intent to harm Gray, and that the deceased would not have sustained his severe injury had he remained in the prone position in which police attempted to place him. Prosecutors reportedly concealed from the defense at Porter’s trial not only that Gray was found to be under the influence of narcotics at the time of his arrest, but also that he had claimed prior back injuries in the weeks prior to his death. Yet Mosby proceeded to charge six police officers, notwithstanding that a competent homicide investigation was not close to being completed. In a demagogic speech announcing the charges, she claimed she was responding to mob cries of “no justice, no peace.”

RELATED: A Prosecution That Threatens a City

Mosby’s office has floated the notion that police lacked probable cause to arrest Gray and, therefore (the dangerously incorrect theory goes), that his arrest amounted to unlawful imprisonment.

For what it’s worth, I believe there was probable cause to arrest Gray. Probable cause is a non-technical assessment of the totality of the circumstances as they would be judged by an experienced police officer. Someone in a high-crime area who runs away as if he has just committed a crime upon seeing a police officer has engaged in suspicious behavior justifying an investigative stop; if, upon the frisk that routinely occurs during such a stop, the suspect is found to have a weapon that is illegal under municipal law (as lawyers for the police officers have contended this knife was), that is sufficient cause to make an arrest.

#share#Nevertheless, even if we concede for argument’s sake that the facts of Gray’s arrest may not have risen to probable cause, the law allows the police to make a good-faith mistake of law without being guilty of the crime of false imprisonment.

To put police in the position of fearing that they might be prosecuted any time they make an arrest that a prosecutor or court later decides should not have been made obviously discourages the police from doing their jobs. That, in turn, encourages criminals to prey on victims (note that Baltimore’s murder rate reached a record high in 2015, and non-fatal shootings rose 72 percent over the 2014 level). So Mosby’s theory is reckless enough when applied to the police who actually apprehended Gray. It is truly insane, though, when applied to a cop like Nero, an officer who did not have anything to do with Gray’s apprehension but simply participated, after the fact, in the processing and transport of Gray.

RELATED: The Travesty in Baltimore

As Andrew Branca points out at Legal Insurrection, Mosby’s lunatic rationale is that Nero could not presume the legitimacy of an arrest made by his superior officer (Lieutenant Brian Rice) and a fellow officer (Garret Miller); he was required to make his own independent inquiry into the facts of the arrest and the legal sufficiency of their probable-cause finding before participating in the processing of the arrestee. Moreover, even though it is generally the driver of the van (in this case, Officer Caesar Goodson) who is principally responsible for situating arrestees in it, Mosby charged Nero because he rode in the van along with Goodson.

Under the guidance of the crime-ridden city’s chief prosecutor, then, police are encouraged neither to trust each other nor back each other up for safety purposes. They must investigate each other during each stage of the apprehension and movement of a suspect. It is a prescription for mayhem on the streets.

As I observed when Porter’s jury hung, there was not even probable cause to arrest him, much less proof beyond a reasonable doubt to convict him. The frightening thing was that the jury hung rather than swiftly finding Porter not guilty. Mosby and her fellow rabble-rousers had so empowered the rioters, had created an atmosphere of such intimidation, that jurors had a reason to fear voting to acquit. Indeed, in her shocking speech, Mosby made it clear that “justice for this young man” could only come in the form of a conviction. Plainly, at least one juror voted to convict despite the dearth of evidence.

Having seen what happened to Porter, Nero wisely opted against a jury trial, asking for a bench trial before Judge Barry Williams on the four charges lodged by Mosby: second-degree assault, reckless endangerment, and two counts of misconduct in office. This morning, Judge Williams acquitted him on all the charges.

That was justice. Will there be peace?


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