May 13, 2016
Another Baltimore Show Trial Commences
By Jonathan F. Keiler
This week the second trial of a Baltimore City police officer over the death of small-time hood Freddie Gray is set to commence. The officer now in the dock, Edward M. Nero, is being prosecuted on the unprecedented grounds that he lacked probable cause to arrest Gray, and that therefore his actions in detaining Gray and placing him in a police paddy-wagon were not just a mistake in judgment (if that), but criminal. The Gray police prosecutions are a case study of how an American metropolis can descend into mob rule, and how fragile are the social bonds and legal protections that hold this republic together.
Nero was one of the bicycle patrol officers that first detained Gray and is charged with the least serious offenses. The prosecution’s theory of the case is that Gray died from injuries received during his ride in the police van, not through anything that Nero or his partner did. As a result, neither Nero nor his partner is charged with offenses directly related to Gray’s death. But Nero and his partner are white, and appear on video dragging a recalcitrant Gray into the police van. Letting them off the hook when three black officers have also been wrongly charged in Gray’s death would be politically impossible for Baltimore’s craven mayor and state’s attorney. So they have ginned up charges against Nero and his partner which are different, but just as legally and morally outrageous as the charges against their black colleagues.
One of those black officers, William Porter, was charged with manslaughter and already tried, with the result of a hung jury. That produced a legal quandary for the prosecution which had planned to force Porter to testify against his colleague Caesar Goodson (charged with the most serious offense of murder) when Porter would no longer face legal jeopardy, having been either acquitted or convicted. When that did not happen, the prosecution could have declined to retry Porter and grant him immunity. Instead they decided to retry him and force his testimony against Goodson with limited immunity while he is still in legal jeopardy, another unprecedented situation in Maryland and most other states. The trial judge, Barry G. Williams, agreed with the prosecution and Maryland’s leftist and pusillanimous Court of Appeals affirmed his ruling, meaning that Porter will be forced to testify against Goodson (or presumably go to jail for contempt) this summer.
But before that will be Nero’s trial and presumably a couple of others. And Nero’s trial is shaping up as more of a farce than Porter’s. Nero decided to be tried by Williams rather than take his chances before a jury in the racially polarized city. That Porter was not acquitted by a jury, despite a lack of any reasonable or competent evidence that he did anything to harm Gray, was warning enough for Nero and his attorneys. At least some jurors voted to convict Porter showing that the risk of jury nullification -- that jurors will ignore the evidence and instructions and vote to convict -- is not only possible, but probable in all the Gray cases. But even a bench trial is risky for Nero in this mob-ruled city, especially since it is before Williams, who appears to be helping the prosecution along as much as he can.
If the case against Porter was weak, the one against Nero is effectively nonexistent. The evidence is really not in dispute. Nero and his partner caught Gray’s eye in a crime ridden section of West Baltimore and Gray took off running. Nero gave chase, caught Gray and patted him down, finding a folding spring-loaded knife of a type which while legal in Maryland, is banned by a Baltimore City ordinance. It’s obvious that Gray ran because he had the knife in his possession, and his possession of the knife gave Nero probable cause to arrest Gray.
But when you read an article about the Nero case, you have to do a double take, because where normally it is the defense that contends arresting officers lacked probable cause to apprehend their client, in this case the prosecution contends that Nero lacked reasonable suspicion to chase Gray, and probable cause to arrest him. Therefore, under their theory all of Nero’s actions thereafter, including restraining, cuffing and loading Gray in to the police van constituted crimes.
This is a novel and unprecedented charge against a police officer. It is one thing to question an officer’s judgement in an ordinary street arrest, and perhaps (assuming he actually did something improper) discipline him internally, or even fire him. But to subject an officer to criminal charges based on an alleged misjudgment of probable cause is not only absurd, but will ensure that officers will no longer make street arrests unless a state’s attorney is present to evaluate the situation. If I were a Baltimore cop that’s what I’d demand before made an arrest on the street that might result in my own arrest later.
The prosecution also improbably contended that Gray’s knife was not illegal, although that clearly appears to have been the case and Gray obviously thought so himself. Judge Williams has ruled that the prosecution will not be able to raise the issue of the knife’s legality, but will be able to argue that Nero lacked probable cause to make the arrest, and that Gray later died in police custody, even though Nero had nothing to do with Gray after he was loaded onto the van.
It’s quite as if the Black Lives Matter movement was running the city and the judicial system. Nero’s prosecution is only conceptually viable if one first buys the argument that black men are deliberately persecuted by police and therefore when they run from police it is for that reason alone -- not because they are carrying illegal substances or weapons. In Baltimore from now on, all an African-American drug dealer or armed gang-banger has to do when he sees a cop is run. If the officer gives chase, it seems the assumption will be that he is doing it for illegal reasons, and the officer will be subject to criminal prosecution. Complete anarchy is not far off.
Baltimore’s elected officials are under the thrall of mob rule, and its professional functionaries in the state’s attorney’s offices, are proving willing Torquemadas in pursuit of this unconstitutional inquisition.
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