Baltimore Police Officer Edward M. Nero is scheduled for trial on Feb. 22. He is one of six officers charged in the arrest and death of Freddie Gray.
Baltimore Police Officer Edward M. Nero is scheduled for trial on Feb. 22. He is one of six officers charged in the arrest and death of Freddie Gray. (Barbara Haddock Taylor / Baltimore Sun)

Attorneys for Baltimore Police Officer Edward M. Nero are asking a judge to throw out a second-degree assault charge against him in the arrest of Freddie Gray, alleging prosecutors have failed to outline actions that constitute the crime.

Short of dismissing the charge, Nero's attorneys have asked Circuit Judge Barry G. Williams to block prosecutors from mentioning key aspects of their theory, including an alleged lack of probable cause for pursuing and arresting Gray, during Nero's upcoming trial.

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They also want to block prosecutors from using key evidence in the case, including citizen video of the arrest and the knife found on Gray.

Gray, 25, died last April, a week after suffering a severe spinal cord injury in police custody. Nero and five other officers have been charged in his arrest and death. All have pleaded not guilty to all charges.

Attorneys for Nero say any suggestion by prosecutors that Nero and the other officers lacked reasonable suspicion or probable cause to stop Gray, that the knife found on Gray was legal, or that police used excessive force would not be grounded in any legal reality, and should therefore not be raised as issues before jurors.

They also ask that prosecutors be barred from discussing the injuries Gray suffered after his arrest. They argue that none of the charges against Nero require "any showing of injury in order for the State to satisfy the elements of the offenses."

Nero's attorneys made the arguments in a series of motions filed this week. His case is set to go to trial Feb. 22 in Baltimore Circuit Court.

Nero is charged with second-degree assault, misconduct in office and reckless endangerment — all misdemeanors.

Nero's attorneys previously asked Williams to throw out the reckless-endangerment charge. Williams denied the request.

Williams has barred defense attorneys and prosecutors from discussing the case with the media.

The new motions provide a glimpse into Nero's defense strategy and highlight how different the case against him is likely to be from the case against Officer William G. Porter.

Porter is the only officer to have stood trial to date of the six charged.

His trial in December on charges of involuntary manslaughter, second-degree assault, reckless endangerment and misconduct in office ended in a mistrial after a city jury deadlocked on all counts. He is scheduled to be retried in June.

During Porter's first trial, prosecutors focused on the stop-and-go, 45-minute transport of Gray in the back of a police van, where prosecutors allege Gray suffered the spinal cord injury.

In Nero's trial, they are expected to focus on Gray's arrest.

Police and witnesses have described the arresting officers using tactical maneuvers to restrain Gray. Cellphone video of the interaction showed Gray screaming in pain, and then his legs dangling beneath him as police took him to the van.

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Prosecutors don't contend that Gray was injured during his arrest. But they have said Nero and the other officers lacked the probable cause they needed to stop Gray, and detained him before ever noticing the switchblade knife for which he was arrested.

In charging the officers, prosecutors initially suggested the knife was legal under state law. Police and attorneys for the officers have said the knife is illegal under the city code.

Prosecutors later changed their theory, suggesting the legality of the knife was moot because officers violated Gray's rights before they discovered the knife.

In describing the assault charge in June, prosecutors wrote that Nero had caused "offensive physical contact with and physical harm to" Gray, and that the contact "was the result of an intentional act" and "not legally justified in that the Defendant used force to place Mr. Gray under arrest without probable cause."

Nero's attorneys have said Nero and his fellow officers were within their rights to pursue Gray after he fled unprovoked from officers in a known drug area targeted for drug enforcement, and that Gray was detained legally and arrested legally after officers found the knife.

In their new motion to have the case dismissed, they argue there is no legal precedent anywhere in the country for charging an officer with assault based on a perceived lack of probable cause.

"Common sense dictates that officers would simply not make arrests if they were subject to criminal prosecution if it was later determined that probable cause did not exist," they wrote. "The long term established remedy for a Fourth Amendment Constitutional violation has always been suppression of the evidence. Therefore, the State has not demonstrated that a crime can even be committed under its theory of this case."

They argue Nero and the other officers had legal authority and probable cause to stop Gray, and prosecutors should be barred from suggesting otherwise because their doing so would be "substantially more prejudicial than probative."

They argue that, given the prosecution's claim that Gray's rights were violated before the knife was found, the legality of the knife is irrelevant to the case.

In terms of the videos from the scene, Nero's attorneys argue that they do not show Gray's initial detention or other parts of the arrest relevant to Nero's charges, but do include "Mr. Gray screaming and hearsay statements from citizens in the community" that should be withheld from the jury.

"Mr. Gray's screams, if out of frustration or to garner attention, are not probative and if admitted will merely inflame the emotions of the jury, thus increasing the prejudicial effect," they argued.

They said prosecutors don't need the video to show Nero didn't secure Gray in a seat belt in the van, because Nero said as much in his recorded statement to police.

They argued that the value of discussing Gray's post-arrest injuries "is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury," and that any mention of excessive force in this case would ignore the established rights of police officers to use force to stop detainees, they argued in their new motion.

"Police officers, as opposed to citizens, as necessitated by their duties, are permitted to utilize physical contact that is not consented to which would otherwise be an assault in the course of a lawful arrest," they wrote. "The standard against which police officers are judged is not that of a reasonable civilian in the same situation, but that of a reasonable police officer similarly situated."

Prosecutors, meanwhile, filed a motion this week seeking to block Nero's defense from referencing things about Gray's past — including his previous criminal record or previous encounters with law enforcement.

Such information could contribute to an officer's reasonable and articulable suspicion of a detainee who flees from officers, experts have said, but the prosecution argues it would mislead jurors. They also said there is "no indication that Officer Nero even knew the identity of Mr. Gray" at the time of Gray's arrest, and that what he learned about Gray after the arrest "is irrelevant."

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David Jaros, a University of Baltimore law professor, said . Williams will have to consider whether the state so narrowly construed its initial explanation of the charges against Nero that a shift now to other theories would violate Nero's rights.

Gray's death sparked widespread protests, and his funeral was followed by rioting, looting and arson. Baltimore State's Attorney Marilyn J. Mosby announced charges against the six officers a few days later.

An order by Williams that Porter testify in the trials of two of the other officers — Officer Caesar R. Goodson Jr. and Sgt. Alicia D. White — is now holding up Goodson and White's trials, pending a review by the Court of Special Appeals.

The two remaining officers, Lt. Brian W. Rice and Officer Garrett E. Miller, are scheduled to be tried in March.

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