Officers' selection of judge trials shaped outcome in Freddie Gray case — spurring debate

Left to right, Attorney Marc Zayon and his client, Officer Edward Nero, leave Courthouse East.
Left to right, Attorney Marc Zayon and his client, Officer Edward Nero, leave Courthouse East. (Kim Hairston / Baltimore Sun)

As Baltimore police Officer Edward Nero and his attorneys prepared for his trial in the arrest and death of Freddie Gray, one critical choice dominated their thoughts: judge or jury?

It was April. Nero was the second of six officers charged in the case to go to trial — and the first since a jury of 12 Baltimore residents had deadlocked on whether to convict Officer William Porter.


Nero and his attorneys, Marc Zayon and Allison Levine, had to decide whether he, like Porter, would choose a jury trial or put his fate solely in the hands of Circuit Judge Barry G. Williams — a former police misconduct prosecutor with the civil rights division of the U.S. Department of Justice.

"It was probably one of the toughest decisions that we had to make," Zayon said. "We went back and forth on the pros and cons."


Ultimately, Nero would elect a bench trial — a decision that would change the course of the proceedings not just for himself, but for his five fellow officers as well.

After Williams acquitted Nero in May, the choice for the next two officers was more clear. Officer Caesar Goodson Jr. and Lt. Brian Rice also elected bench trials. They, too, were acquitted.

After losing those three trials, Baltimore State's Attorney Marilyn J. Mosby announced last week that she would drop all remaining charges against the three other officers — Porter, Officer Garrett Miller and Sgt. Alicia White. She said Williams' opinions of the prosecution's case in the three bench trials would likely carry over to the remaining trials and result in more acquittals.

Mosby went on to say that prosecutors' lack of a say in whether a defendant in Maryland can elect a bench trial — it is solely the defendant's choice — impeded justice in the Gray case. She said she would consider pushing legislation in Annapolis to change the rules.


Such a proposition is not without precedent. In federal court, prosecutors can object to requests for bench trials, and states are split on the issue — some giving prosecutors a say, others putting the decision solely in the hands of defendants. And some in Maryland say changing the law here wouldn't be a bad idea.

University of Maryland law professor Douglas Colbert said there are "instances where a judge trial is wholly appropriate, such as when the community is enflamed by anger, fear, hostility toward a defendant, and the only way to provide a fair trial is to ask a judge to rule on the law and to become the fact finder."

But Colbert said it might make sense to require a defendant who wishes to have a bench trial to show in court that such factors are present before the request is granted, in part because jury trials have an intrinsic value in assuring fairness in the eyes of the community.

Others — including key legislators who would be in the position to consider any change to the law in Annapolis — disagree.

Sen. Robert A. Zirkin chairs the Senate Judicial Proceedings Committee, which would consider any such legislation. The Baltimore County Democrat descibed the idea as "moronic" and "horrendous," and said it "has 0.0 percent chance" of becoming law.

"The state doesn't have a right to a jury trial. Individuals have a right to a jury trial," Zirkin said. "Just because you lose a case doesn't mean you change the entire framework of defendants' rights."

Del. Curt Anderson, a senior member of the House Judiciary Committee, said that panel would take a similarly dim view. The Baltimore Democrat said lawmakers would hesitate to take away a right accused people have had in Maryland since early in its history.

Anderson said he respects Mosby but would not sponsor such a bill.

"We don't want to give that right up," he said.

Gray, 25, died last year after suffering severe spinal injuries in the back of a police van.

Prosecutors alleged police caused Gray's death by placing him in the van in shackles and handcuffs but unsecured by a seat belt, and by refusing to get him medical attention when he requested it. They also said the officers arrested him without probable cause.

The officers' attorneys said Gray's death was a tragic accident and that the officers did nothing wrong. They said Mosby lacked evidence, and that the charges were baseless.

A juror in the Porter trial told The Baltimore Sun in January that the jury was one vote away from acquitting Porter of involuntary manslaughter, but came within two votes of convicting the officer of misconduct.

The juror, who wished to remain anonymous, said the panel was more closely split on the other counts, leaning 8-2 toward acquittal on assault with two undecided, and 7-3 toward conviction on reckless endangerment, with two undecided.

After Mosby's decision to drop all remaining charges, the same juror said that Mosby's desire to change the law surrounding bench trials was "very important" and worthy of support.

"Juries should decide whether or not there is justice that's occurring," said the juror, who asked to remain anonymous because Williams has asked jury members not to discuss their experience.

"Because jurors were not permitted to take a look at any of the remaining cases," the juror said, "we couldn't look at justice."

Another juror, attorney Susan Elgin, said the system worked well.

"We listened carefully to the court's instructions and did our best to apply the law given to us to the facts proven in the courtroom," she said in a statement, her first public comment on the trial. "It was not an easy task and we had legitimate differences of opinion, but the justice system was well served in this case."

Some of the officers' attorneys said the outcome in their cases likely would have been the same with juries, and scoffed at Mosby's suggestion that the officers' access to bench trials had unfairly weighted the scales against conviction.

"The prosecutor is the one who makes the decision about when and where and how to prosecute, and what crimes to charge, and what evidence to rely on," said Catherine Flynn, an attorney for Miller. "Given their failure to be able to produce any evidence whatsoever that any crimes occurred, to then rely on blaming other people belies the lack of experience of this prosecutorial team."

Zayon and Levine said Nero's decision to select a bench trial was not based on any fear that a jury would find him guilty, but on the fact that the charges against him were based on complicated, novel prosecution theories that a judge would be better suited to understand — and, they said, see through.

Nero was charged with second-degree assault for allegedly arresting Gray without probable cause. Levine said the charge has no precedent in Maryland except in pretrial motions in which defense attorneys are asking a judge to suppress evidence discovered in an unlawful search.

Nero was also charged with reckless endangerment for having placed Gray in the van without a seat belt. Zayon said "it is clear under the law that failure to seat-belt somebody is not criminal negligence."

"Ultimately," Levine said, "we decided that, because of the nuanced legal issues, it would be best to have a judge try this case as the fact finder in order to separate emotions from law. ... By removing the emotion, you can only focus on the law. And when you do that, you see that there was no criminal conduct."


Zayon said the choice became clear.


"Because it was such a unique prosecutorial theory — they came up with two theories of prosecution that have never been prosecuted before — it really boiled down to whether it would be easier to explain to a judge the legal weaknesses in the case," he said.

Nero and the other officers still face administrative reviews. They have not spoken publicly about the case.

Attorneys for Goodson, who went on trial immediately after Nero, did not respond to a request for comment on their client's decision to select a bench trial.

Goodson was supposed to be the first officer to stand trial after Porter's mistrial, and all of the parties appeared in court in January ready for a jury trial. But an appeal on a separate issue — whether Porter could be compelled to testify — halted the proceedings.

By the time Goodson finally returned to the courtroom in June, just weeks after Nero was acquitted by Williams, he had changed his mind.

After Goodson's acquittal, Rice's decision to pick a bench trial became easier as well, legal observers said — and the rest was history.

Baltimore Sun reporter Justin Fenton contributed to this article.