Sunday, May 22, 2016

The Judge Decides

It's been a while since I've signed in here because it's been hectic.

Judge Barry Williams
One the stories that has gripped Maryland, and the nation is the Freddie Gray Trials of the police officers. Officer William Porters trial ended in a hung jury (he'll be retried). That won't be the case for Officer Edward Nero (one of the white officers) charged in the case. Its taken two weeks and tomorrow Judge Barry Williams will decide his fate. Police are on standby, but I don't think there will be any disturbances. Normally you've find my material on, but a lot went on this week. So here are my observations.

(Baltimore, MD) The fate of Baltimore Police Officer Edward Nero is in the hands of Circuit Court Judge Barry Williams. Officer Nero, a bike cop, was one of two policemen who chased Freddie Gray. The apprehension of Gray set in motion events which would lead to his death.

Officer Nero is charged with second degree assault, reckless endangerment, and two counts of misconduct in office. The Prosecution paints a narrative where the actions of Nero weren’t warranted. Conversely, the Defense sees a policeman doing his job which does not rise to a crime. For the last two weeks each side has put on experts with intimate knowledge about police policy and procedures.
Atty. Marc Zayon and Off. Edward Nero

Several facts were agreed to by all parties. The area where the Gray was chased was a known drug area. Officer training includes General Orders. The police department conducted an audit to see if officers were seat belting suspects. While these were areas of agreements challenges went back and forth.

The Witnesses

State's Attorney Michael Schatzow strategy started with what can be described as “show and tell.” Armed with CCTV video surveillance footage Prosecutor Schatzow paraded police officers and experts to explain what they were seeing and hearing. The footage shows the initial stop where Gray is cornered by police. It also shows the second stop where police removed metal cuffs replacing them with plastic cuffs and leg irons.

A separate video was shown where a police recruit in civilian clothes is taken through an arrest. He appears to be same height and weight of Gray. Police explain they want to demonstrate an arrest using a police van. We see him placed in hand cuffs and lead into the van. He slides along the bench without a seat belt. He is then asked lay face down on the floor and try to get up on his own. It takes him several minutes for him to do so.

This video didn’t play well with court observer Baltimore NAACP President Tessa Hill-Alston, “Freddie was injured when he was put in that van. He couldn’t have done the things demonstrated that the cadet did.” Despite her protest this case will be decided by the judge and not emotion.   

The highlight of the trial was the testimony of Nero’s partner, fellow Bike Officer Garrett Miller. Miller was compelled to testify and granted immunity. It’s the first time Maryland has allowed a defendant who is facing trail in a similar case to be deposed on the stand.

Officer Miller revealed several items during his testimony. According to the bike officer he executed the arrest of Gray. Placing him in handcuffs during the first stop. At the second stop he tells the judge he removes the metal cuffs from his hands and replaces them with plastic cuffs. Miller also places Gray in leg irons.   During questioning Officer Miller says, all Nero did was assist in putting Gray in the van by lifting his feet.

We also learn for the first time why no one questioned the need for a chase on the radio. According to the bike officer, no one questioned the foot chase because they were “keeping the key clear.” A reference to not talking over one another on the radio.

Lastly, though we never heard from Nero on the stand, we heard his voice during an interrogation by Detective Michael Boyd. We hear Nero describe events. What was telling, he constantly uses the term “we.” The prosecution points to this assistance in the arrest suggesting he was more than a passive bystander.

Defense Attorney Marc Zayon used a number of former and current police officers to drive home the point many of the procedures used by Officer Nero were “standard operating procedures.” Former Charlottesville, Virginia, Police Chief Tenecky Longo, Jr. was asked to explain Baltimore Police Department Training which he conducted for 18 years. He talked about General Orders and officers given discretion while in the field.  

Sergeant Robert Himes, who trained Nero on using his mountain bike, drove home the point “he never belted a prisoner in a van.” This was a repetitive mantra from a number of policemen who took the stand.

Michelle Martin, Maryland Assistant Attorney General, was the only non-police officer called by the defense. Prior to her appoint to her current position she taught legal classes to police recruits. The defense focused in on so call “Terry stops.” This refers to a legal case from 1968, Terry v. Ohio. In this case police can detained an individual without probable cause. There are now rules as to how long you can detain an individual without charging them with a crime, what kinds of information you need to collect during this stop, and if it violates 4th Amendment.

Martin describes a “Terry stop” as a brief encounter on a suspicion of a crime being committed. She tells the judge recruits were tested on the stops.

The Judge

Officer Nero’s decision to ask for a “bench trial” rather than a jury trial received mixed reviews. Defense Attorney Warren Brown said, “I think it favors the prosecution theoretically, because you only have to convince one person beyond a reasonable doubt.” University of Maryland Law Professor Douglass Colbert sees it differently especially in the case of police officer, “the strategy of choosing a judge has proven to be a tried and true successful strategy.”

Inside the courtroom, the dual role Judge Williams plays was especially telling during closing arguments. Normally, each side lays out their case without challenge. That was not the case in this closing. The Judge peppered each side on the facts in the case. It frustrated the attorneys, who were under a time limit. He did allow them to extend their remarks because of the questions.

State Prosecutor Janice Bledsoe came under scrutiny over the assault charge. “When does the assault begin?” The judge asks. She wasn’t prepared but eventually answered. The question from the Judge which stumped Bledsoe was “Is it a crime when there is an arrest and no probable cause?” The prosecutor wanted to shift attention from the question because police make a number of arrest without cause. Reluctantly, she says, “yes.”

Freddie Gray in Shock Trauma Unit
Defense Attorney Zayon wasn’t immune from the judge’s scrutiny. He was arguing the need for discretion on the part of police officers when Judge William’s interjected. “They (police officers) are supposed to follow General Officers?” Zayon was also reluctant to say, “Yes.”

The judge also took issue with defenses idea why seat belts are needed for prisoners in vans. The judge wonders out loud, if there isn’t a need for seat belts “isn’t that reckless endangerment?” The defense disagrees.

Unlike a jury, the Judge knows the law and will apply it in this case. Some observers believe the delay in the verdict until Monday is a direct result of the running of the Preakness Horse Race where law enforcement officials are on high alert. Monday, Sheriff’s deputies will cordoned off the area around the courthouse keeping protesters away as Baltimore and the nation await the verdict in this case.


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