Freddie Gray's knife, once focus of case, never mentioned at Nero trial

Why no mention of Freddie Gray's knife at Officer Nero's trial?

When Baltimore Police Officer Garrett Miller described the arrest of Freddie Gray on the morning of April 12, 2015 in a written statement of charges, it was all about the knife he allegedly found on Gray.

"This officer noticed a knife clipped to the inside of his front right pants pocket," Miller wrote. "The knife was recovered by this officer and found to be a spring assisted, one hand operated knife."

The knife, however, hasn't come up at all during the trial this week of Officer Edward Nero, who is charged along with Miller with illegally stopping and arresting Gray.

And there's no sign it will be raised before Circuit Judge Barry G. Williams announces a verdict in the case on Monday, which surprised many legal observers at the conclusion of testimony on Wednesday.

"I don't understand why the knife didn't come in," said David Jaros, a University of Baltimore law professor who has been watching the proceedings. "The knife brackets the area that we're concerned about, and tells us: What is the time period that we have to decide is an unlawful detention?"

"There were several unanswered questions during this trial. One of the unanswered questions was, at what point did the officers become aware that he had a knife on his person?" said Douglas Colbert, a University of Maryland law professor who has also been watching. "I wanted to know, why was Freddie Gray arrested?"

Nero is charged with second-degree assault and misconduct in office in relation to Gray's stop and arrest, which prosecutors say were conducted without reasonable suspicion or probable cause. He is charged with reckless endangerment and a second count of misconduct for his role in placing Gray in a police transport van in shackles but without a seat belt.

Gray, 25, died a week after his arrest from spinal injuries suffered in the van, prosecutors say. His death sparked protests against police brutality, and his funeral was followed by rioting, looting and arson.

Prior to the start of Nero's trial, the knife seemed to be a central element to the case.

On May 1, 2015, Baltimore State's Attorney Marilyn J. Mosby cited the knife — claiming it was legal under Maryland law — when announcing the charges against Nero and the five other Baltimore police officers charged in Gray's arrest and death.

Since then, Nero's defense has argued in written motions that the knife was illegal under city code and formed the basis of the officers' probable cause to arrest Gray. They also argued at trial this week that Miller alone arrested Gray, not Nero.

Prosecutors have since changed their stance to say that the knife was irrelevant because Miller and Nero had illegally arrested Gray prior to ever finding the knife.

During a pre-trial motions hearing last week, Williams granted a defense motion to block prosecutors from referencing the legality of the knife, but said his ruling could be revisited.

It never was.

While cross examining Miller, who the prosecution compelled to the witness stand, Zayon asked the officer whether he had noticed anything clipped to Gray's pants while searching for Gray's inhaler.

Prosecutors objected to the question, and Williams sustained the objection. He then called an extended bench conference that could not be heard by observers in the courtroom.

The knife was not submitted as evidence in Nero's trial, nor were any pictures of a knife. A transcript of Nero's statement to police investigators was submitted as evidence, but several passages where Nero describes interacting with Gray have been blacked out.

"So we then lifted him back up," Nero said at one point, before seven lines of text are blacked out.

At another point, four lines are blacked out after Nero begins, "And we ask him where's your inhaler?"

At a third point, just a single word is blacked out. "So I check — again just to be sure he doesn't have any [blacked out] kind of weapons on him or any kind of paraphernalia."

Jaros said that, based on witness testimony, the "argument is pretty strong that once the knife is recovered, all of the subsequent detention is lawful, and you wouldn't get an assault charge out of that."

But without testimony as to when the knife was found, it's more difficult to understand whether the detention prior to its discovery was legal, he said.

Jaros said it is possible the attorneys involved have discussed the knife during bench conferences, and the timing of the knife's discovery might come into focus during closing statements on Thursday morning.

"It seems to me the knife matters," he said. "But we're not privy to all of the facts and some of the arguments that have been made."

Warren Alperstein, a defense attorney who has been watching the case but is not involved, said it's possible the knife did not come up because "the state's theory is that an arrest occurred after [Gray] was originally detained, in handcuffs, but without confirming or dispelling whether he was armed and dangerous."

krector@baltsun.com

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