By Justin Fenton and Kevin Rector
Baltimore Circuit Judge Barry Williams on Monday rejected the state's case against Officer Edward Nero, acquitting him on all counts for his role in the arrest of Freddie Gray.
The verdict, which followed a five-day bench trial, is the first in the closely watched case. Nero, 30, had faced misdemeanor charges of second-degree assault, reckless endangerment and two counts of misconduct in office. Gray, 25, died last year of injuries sustained while riding in the back of a police transport van.
Prosecutors argued that Nero committed an assault by detaining Gray without justification, while the reckless endangerment charge related to Nero's role in putting Gray into the arrest wagon without buckling a seat belt. In closing arguments Thursday, Williams had skeptically questioned prosecutors about their theory of assault, a theory legal experts said was unprecedented.
In his ruling Monday, Williams said there were "no credible facts" to show that Nero was directly involved in Gray's arrest, and said testimony showed Nero's role in putting Gray in the van was minimized by the actions of others and not unreasonable given his training.
"Based on the evidence presented, this court finds that the state has not met its burden to prove beyond a reasonable doubt all required elements of the crimes charged. Therefore, the verdict for each count is not guilty," Williams said.
Nero leaned forward after the verdict was read and wiped his eyes. He hugged his attorneys.
Marc Zayon and Allison Levine, the attorneys, said Nero and his family "are elated that this nightmare is finally over."
"The State's Attorney for Baltimore City rushed to charge him, as well as the other five officers, completely disregarding the facts of the case and the applicable law," the defense lawyers said in a statement. "His hope is that the State's Attorney will re-evaluate the remaining five officers' cases and dismiss their charges. Like Officer Nero, these officers have done nothing wrong."
Four officers are charged in Gray's death, while charges against Nero and one other stemmed from his arrest and the failure to place him in a seat belt.
Late Monday, Williams issued a new gag order prohibiting Nero and his lawyers from speaking out until all of the officers' cases are resolved. State's Attorney Marilyn Mosby did not attend the reading of the verdict, and a spokesperson did not respond to questions about her whereabouts, citing the gag order.
Gray's twin sister, Fredericka, left the courthouse visibly upset and declined comment. Billy Murphy, the attorney for the Gray family, said prosecutors face an "enormous standard of proof" and commended Williams for "not bending to public opinion."
Williams "stood tall and did what he believed was just" while being "very careful" to make clear that his findings were specific to Nero's case, Murphy said.
The state's theory for the assault charge had been described by legal observers as "novel" or even "radical." When the constitutionality of a police stop is questioned, the typical remedy is for charges to be dropped or evidence suppressed. Officers can also be sued.
But prosecutors sought to criminalize the interaction, with Deputy State's Attorney Janice Bledsoe remarking that people in Baltimore were "jacked up all the time" and that officers must justify all of their actions. While Williams had questioned prosecutors on the theory in closing arguments, he made no conclusion on it in finding Nero had no involvement.
Nero was the second of six city police officers charged in the case to stand trial. The first trial, of Officer William Porter, ended in a hung jury and mistrial last December. Officer Caesar Goodson Jr., the driver of the van where Gray suffered fatal injuries, is slated to stand trial in two weeks for second-degree murder and related charges.
Nero, a former New Jersey volunteer firefighter who joined the Baltimore Police Department in 2012, is one of three officers who were on bike patrol when they chased and arrested Gray in West Baltimore on April 12, 2015. Gray died a week later of his injuries, touching off citywide protests.
Prosecutors initially charged Nero and Officer Garrett Miller with wrongly arresting Gray for having an illegal knife, which they said was in fact legal under state law. They later backed off that theory after defense attorneys noted the knife was banned under city code, and instead said the officers did not follow legal requirements in how they went about stopping Gray before finding the knife.
Gray was placed in a prone position and handcuffed, which prosecutors said was excessive force. The officers' detention of Gray, for a period of less than three minutes, constituted illegal touching, prosecutors charged.
Zayon said in closing arguments that countless court decisions backed the officers' actions, saying officers may chase a suspect in a "high-crime" area and detain him while seeking to confirm or dispel their suspicions. Another officer, Lt. Brian Rice, had initially begun chasing Gray, and Miller and Nero had responded to his call for help.
Miller, who faces the same charges as Nero, was given limited immunity and forced to testify by prosecutors. But on the stand Miller said he alone had caught and handcuffed Gray, minimizing the involvement of Nero, who he said went to retrieve their bicycles from another area as he handled Gray. Prosecutors pointed to Nero and Miller's use of the word "we" to describe the events as indication that both actively took part.
Williams said "Miller stated unequivocally" that he had detained Gray, and noted that Brandon Ross, one of Gray's friends, also backed the account in his testimony. Prosecutors alleged Miller had twisted his story to help his "buddy" Nero, but Williams noted Ross had no such incentive to lie.
"When the detention morphed into an arrest, the defendant was not present," Williams said. "As such, the court rejects the state's theory that the defendant was involved in the arrest, because, absent 'I' and 'we,' there are no credible facts to show that he was involved in the touching of Mr. Gray before Miller brought him to the corner."
Prosecutors also argued Nero could be convicted under a theory of "accessory liability," which Williams said would require showing Nero knew a crime was being committed and either participated or deliberately allowed it to continue. Bledsoe had argued while there was no case law to support the argument, there was also none prohibiting it.
Williams said it was "not an appropriate application of the law."
"There has been no information presented at this trial that the defendant intended for any crime to happen, nor has there been any evidence presented that the defendant communicated any information to a primary actor that he was ready, willing and able to lend support if needed to any crime," Williams said.
After the arrest, Nero helped place Gray into the van, shackled but not buckled into a seat belt. Prosecutors said Nero had a "duty" to keep Gray safe, and presented testimony about police training and policies designed to keep arrestees safe. Just three days before Gray's arrest, a new directive went out that required police to seat belt detainees, removing their discretion.
Zayon said there was no evidence to show Nero had received the new directive, and a sergeant testified that it had not been distributed or read at daily roll calls. Other officers testified that it is the van driver's responsibility to ensure that a detainee is secure _ audits performed in 2014 to ensure compliance targeted van drivers, not arresting officers.
Rice had climbed into the van to pull Gray in, while Nero helped with his legs and did not enter the van.
Williams said the law required him to judge the "reasonableness" of Nero's actions, and he found it was reasonable for Nero to defer to a supervisor's determination about whether to belt Gray.
T.J. Smith, the Police Department's chief spokesman, said Nero, whose salary was $55,625 last year, will remain working in an administrative capacity pending the outcome of an internal investigation, which is being handled by an outside police department.
Smith said that internal investigation will not be completed until all of the criminal cases against the other five officers are completed because they will likely be witnesses in each case.
Miller, whose trial is scheduled for late July, accompanied Nero into the courthouse and sat with Nero's family near the front of the courtroom. As Nero hugged his attorneys and other supporters, Miller appeared emotional as well.
Outside, a small group of protesters decried the ruling, and pursued Nero's family into a nearby parking garage with a crush of media in tow. Michael Belsky, an attorney for Rice, could be seen making a video recording of the incident.
State Sen. Catherine E. Pugh, the winner of last month's Democratic primary for mayor, said she's been in touch with activists and believes the public understands the lengthy nature of criminal proceedings against multiple officers charged in Gray's arrest and death.
She said she believes the city has improved policing since Gray's death.
"We've learned a lot of lessons," she said.
(c)2016 The Baltimore Sun