Experts say Baltimore officer Nero likely planning for bench trial in Freddie Gray case

Is Officer Edward Nero, charged in the arrest of Freddie Gray, electing to have a bench trial?

All signs indicate that the next Baltimore police officer to go on trial in the arrest and death of Freddie Gray is planning to have his fate decided by a judge instead of a jury, legal experts say.

Police officers often choose to have a judge hear their case when the allegations turn on whether their actions were reasonable, experts said. In this case, Officer Edward M. Nero's defense team could be concerned about a jury reaching a verdict based on emotion rather than a calculated reading of the law.

While Nero's choice of a trial by judge or jury won't be made public until a hearing Tuesday, the court has not taken certain steps to prepare for a jury trial. For instance, it has not announced a schedule for jury selection, as it did previously when trials of officers in the Gray case approached.

"All the indicators suggest that Officer Nero has communicated to the court that he intends to proceed with a bench trial," said attorney Steve Levin, a former federal prosecutor who is not involved in the case.

An advisory issued by the court late Wednesday says a motions hearing for Nero will be held Tuesday, with his trial beginning the following day. All proceedings next week are scheduled for a room in Courthouse East, not the larger room in the Clarence M. Mitchell Jr. Courthouse that was used for jury selection in Officer William G. Porter's trial.

For Porter's trial, the court called on hundreds of jurors to appear, and lawyers argued extensively in pre-trial motions about how to approach the jury selection process. Neither prosecutors nor Nero's defense team have filed motions regarding jury selection.

Before Porter's trial, his attorneys had argued that the officers couldn't get a fair trial in the city, and sought to have the cases moved. They also requested that jurors be sequestered.

"In a case like this one, where jury selection and concerns about venue are significantly higher than the normal case, there would unquestionably be motions related to jury selection and requests about what should be asked," said David Jaros, a law professor at the University of Baltimore.

A court spokeswoman declined to comment. Prosecutors and defense lawyers in the case are under a gag order prohibiting them from talking to the news media.

"Nothing is official until it happens in the courtroom, on the record," said a judiciary spokeswoman, Angelita Williams, who also declined to discuss whether or how many jurors the court was preparing to call.

Nero is charged with second-degree assault, reckless endangerment, and misconduct in office. He was one of the officers on bike patrol who spotted Gray and gave chase on April 12 last year, then arrested him and charged him with having an illegal knife. Gray, 25, was loaded into an arrest van in shackles, but not secured by a seat belt. He suffered fatal injuries in the back of a transport wagon.

If Nero, 30, chooses a bench trial, it would all but ensure the first verdict in the high-profile cases. Jurors in Porter's trial were deadlocked and Circuit Judge Barry G. Williams declared a mistrial in December.

The Baltimore Sun reported in January that jurors were one vote away from acquitting Porter on the most serious charge of manslaughter, but close to convict on lesser charges he faced. Further proceedings were stalled after appeals reached the state's highest court.

Williams, a judge since 2005, when he was appointed by Republican Gov. Robert L. Ehrlich Jr., is a former city prosecutor who spent years traveling the country trying police misconduct cases for the civil rights division of the U.S. Justice Department.

University of Maryland law professor Douglas Colbert said it is a "huge decision for an accused to choose one decision-maker, as opposed to 12."

Attorneys may look for signs that a judge could be more likely to rule in their favor. "From what I saw, I'm not sure that Judge Williams fits within that profile," Colbert said.

Nero's trial is expected to focus heavily on the officers' decision to pursue Gray and detain him.

jfenton@baltsun.com

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