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Judge to decide whether Freddie Gray's death may be mentioned in Officer Nero trial

The trial of Baltimore Police Officer Edward M. Nero is scheduled to start next week.
The trial of Baltimore Police Officer Edward M. Nero is scheduled to start next week. (Baltimore Police / Baltimore Sun)

Lawyers for the Baltimore police officer heading to trial this week in the arrest of Freddie Gray are asking the judge to bar any mention of Gray's death during the proceedings.

Officer Edward M. Nero, the second of six officers to be tried in the Gray case, is charged with second-degree assault, reckless endangerment and two counts of misconduct in office. He has not been charged in Gray's death.

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Circuit Judge Barry G. Williams is set to hand down orders Tuesday on a range of motions filed by prosecutors and attorneys for Nero.

In one motion, the officer's attorneys ask that the court "exclude evidence of or argument about Mr. Gray's injuries" because Nero "is not charged with any crime that requires proof of actual injury."

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Nero's attorneys say the charges against him must stand or fall based solely on Nero's actions, not on any subsequent events. Gray, 25, died last April after suffering a severe spinal cord injury in police custody.

Prosecutors have argued Gray's injuries are relevant to the charges against Nero, particularly the reckless-endangerment charge, because they prove that Nero's decisions — including the decision by Nero and others to not restrain Gray in the back of a police van with a seat belt — "created a substantial risk of death or serious physical injury."

Nero, his attorneys and the prosecutors all are barred by a gag order from discussing the case.

The trial is scheduled to begin Wednesday, but prosecutors have asked Williams to push the start back to Thursday because a weekend power outage in their offices limited their ability to prepare.

A spokeswoman for the court said Williams would decide whether to grant the one-day postponement at the Tuesday hearing.

The importance of Williams' ruling on the admissibility of Gray's fatal injuries depends in part on another decision expected Tuesday: whether Nero chooses a jury trial, in which he would be judged by a panel of 12 city residents, or a bench trial, in which his guilt or innocence would be determined by Williams.

Both judges and juries are expected to be able to ignore facts or evidence deemed inadmissible at trial. But defense attorneys for the six officers have questioned that ability in a city that has been bombarded by news coverage of the cases since Gray's death and the subsequent unrest in the city.

Greater confidence is generally placed in the ability of judges to put inadmissible evidence out of mind.

Nero has sought to have the charges against him dismissed entirely, with arguments that prosecutors have failed to articulate the actions on his part that would constitute the crimes.

Among the motions that will be watched closely by legal observers are those related to the circumstances surrounding Gray's initial stop and the knife allegedly found clipped to his pants, and how each side might discuss them during trial.

Nero's attorneys have argued that the state should not be able to question whether he and the other officers had reasonable suspicion to stop Gray — they say legal precedent is clear that they did.

They say the term "excessive force" should not be allowed into the discussion, because no such force was used. They say the illegality of the knife that was allegedly found clipped to Gray's pants pocket, and which officers cited as their probable cause for his ultimate arrest, should not be questioned because it is clearly prohibited by city code.

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Prosecutors have responded in filings that Nero and the other officers did not, in fact, have reasonable suspicion to stop Gray.

Prosecutors say the officers' actions constituted excessive force because "[n]o amount of force is reasonably necessary for an officer to discharge his duties in the absence of probable cause or reasonable suspicion." They say discussion of the knife is necessary to demonstrate that Nero's argument that the knife was illegal is only "a post-hoc justification for [his] otherwise illegal misconduct" in detaining Gray before finding the weapon.

How big a role the knife will play in the trial is being carefully watched in part because prosecutors' emphasis on it has wavered.

When State's Attorney Marilyn J. Mosby announced charges against the officers last May, she stressed that the knife was legal under state law.

But attorneys for the officers argued that the knife was illegal under city code. Now prosecutors have been more circumspect — instead stressing their position that Gray's initial detention was illegal regardless of the knife.

Attorneys for Nero have also sought to block several citizen videos taken during Gray's arrest from being entered as evidence, or, failing that, to block the videos' sound from being heard in court. They say the videos and their sound are "irrelevant, prejudicial" and of "no probative value" — in part because they suggest, through Gray's own screaming and comments by others at the scene, that Gray was injured during his arrest and not in the van, which is not what the prosecution contends in the case.

Prosecutors, in their response, say they do not intend to argue that Nero injured Gray during the arrest, but that the video is nonetheless relevant — in part because it shows Nero's "nonreaction to Mr. Gray's cries" and that he was part of the team of officers that loaded Gray into the van.

Williams is also expected to rule on subpoenas Nero's attorneys issued to several assistant state's attorneys in Mosby's office, seeking information on all cases reviewed in the first six months of 2015 by the office's charging division.

That unit evaluates cases brought by police and "makes decisions to release or charge offenders based on principles of law," according to the state's attorney's office's web site.

Nero's attorneys have said they want to show that prosecutors regularly find officers lacked probable cause to make arrests but do not file criminal charges against the officers, and that cases are regularly brought against individuals who possessed knives similar to the one found on Gray.

Prosecutors have said circumstances in other, unrelated cases hold no bearing and are irrelevant to the charges against Nero, and that claims of a "discriminatory prosecution" — judging one defendant differently from another — can be raised only in pre-trial motions for dismissal, not as evidence to be presented during trial.

It is unclear how long Tuesday's hearing will last, or whether prosecutors and Nero's attorneys will be allowed to make arguments in open court beyond the requests in their motions. Williams in past proceedings has restricted attorneys to arguments that go beyond the scope of their written filings, saying he doesn't need to hear arguments that have already appeared in filings.

If that holds, the Tuesday hearing could be limited to a ticking-off of orders by Williams, with limited interjections from the attorneys.

Baltimore Sun reporter Justin Fenton contributed to this article.

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