Baltimore Sun crime reporter Justin Fenton on the decision of Officer Edward Nero to opt for a bench trial, Nero is one of the six officers charged in the Freddie Gray case. (Kevin Richardson/Baltimore Sun video)
Baltimore Police Officer Edward M. Nero will stand trial before a judge rather than a jury on charges stemming from the arrest of Freddie Gray, clearing the way for the first verdict in the closely watched case as early as next week.
The trial is set to begin in a downtown courtroom Thursday morning and could last five days. Nero, 30, was one of three bicycle officers involved in Gray's initial detention and arrest on April 12, 2015. He has pleaded not guilty to misdemeanor charges of second-degree assault, reckless endangerment and misconduct in office.
At a pre-trial hearing Tuesday, Circuit Judge Barry G. Williams also issued several rulings that will determine what evidence is introduced at trial. For instance, the judge excluded medical testimony on the fatal spinal injuries Gray suffered while in police custody. That evidence figured prominently in the trial of Officer William G. Porter — the only other Baltimore officer to have stood trial in the case to date.
He also barred prosecutors from arguing that a knife clipped to Gray's pants pocket was legal, making his arrest unjustified. Prosecutors now contend that Gray's initial detention — before the knife was found — was unwarranted.
By selecting a bench trial, Nero made Williams the sole decider of his legal fate.
Marc Zayon, Nero's attorney, said he and his client discussed the pros and cons of forgoing a jury "a million times." Zayon noted that hung juries — like the one in Porter's trial in December — can lead to prosecutors' choosing to "try you over and over and over again," suggesting that Nero saw the bench trial as a quicker path to a resolution.
Williams, 54, said he was "certainly not going to be swayed by emotions" in assessing the charges. The case has been a lightning rod since Gray's death sparked widespread protests against police brutality and a night of rioting, looting and arson after Gray's funeral, and police union officials accused prosecutors of rushing to judgment.
Williams has presided over all the cases since the fall.
Baltimore State's Attorney Marilyn J. Mosby first announced the charges against Nero and five other Baltimore police officers in May, two weeks after Gray's death. All the officers have pleaded not guilty.
David Harris, who studies police misconduct cases at the University of Pittsburgh, said he was not surprised by Nero's choice of a bench trial. He pointed out that Zayon has argued in pre-trial motions that police typically have discretion when making arrests, and that there is no legal precedent for the case.
"If your case is really about important legal points and you want to stay away from the emotional response to an incident, then you put your case before a judge," Harris said. "It's the right strategic call from the point of view of the defense, and it is their call to make."
Other legal observers disagreed.
"I don't believe a judge who heard the Porter case can be impartial in the Nero case," said Clarke Ahlers, a local defense attorney who has represented law enforcement officers but is not involved in this case. "I believe the trial is a long, slow guilty plea."
Prosecutors have said Nero and the other officers had no reasonable suspicion or probable cause to detain or arrest Gray, and their actions therefore constituted an assault. They also argue that the failure of Nero and the other officers to restrain Gray in a seat belt in the back of a police transport van, where they contend his injuries were sustained, constituted reckless endangerment.
Attorneys for Nero and the other officers have said that their clients were justified in their actions, and that legal precedent strongly supports their right to stop individuals like Gray in high-crime areas. They have argued that Gray's decision to run "unprovoked" from the officers solidified that standing. They said that finding a knife on Gray justified his subsequent arrest.
When the charges were first announced, prosecutors argued that Gray's knife was legal. On Tuesday, Williams ruled that prosecutors will not be able to make that argument at trial because it was no longer relevant to the charges as described by the state.
Williams, who once traveled the country trying police misconduct cases for the U.S. Department of Justice's civil rights division, ruled on more than a dozen written motions Tuesday.
He ruled that the spinal cord injuries suffered by Gray, 25, could be discussed during the trial, despite Zayon's argument that Nero is not charged in Gray's death. But Williams denied a request from prosecutors that they be allowed to call medical experts to describe "step by step" how those injuries occurred.
Williams ruled that several citizen videos of Gray's arrest were admissible as evidence, but that the sound would not be allowed. He also told prosecutors to only introduce video that shows Nero at the scene of the arrest and is relevant to the case.
Williams granted a state request to exclude information about Gray's past, including previous run-ins with law enforcement.
He also ruled against most of the requests made in a motion by The Baltimore Sun and other media outlets asking for increased access to court documents and evidence presented to the jury. Williams said his previous decisions to restrict access had been appropriate.
The judge said that prosecutors have indicated they will need two or three days to present their case against Nero, while the defense has said it will need two days.
José Anderson, a law professor at the University of Baltimore, said the prosecution's case at this point is more about the "full interaction" that took place between police and Gray, including why they chased him through the Gilmor Homes housing project.
"It's going to be a difficult prosecution simply because of the unusual nature of trying to criminalize the officers' behavior," he said. "If the prosecution theory has any chance, it's got to be based on having no justification for detaining Freddie Gray in the first place."
Nero and his attorneys likely chose a bench trial, Anderson said, because they see the judge as better able to handle the case's technical legal questions. Still, he said, "It's risky because 12 jurors gives you more people to see your point of view."
Retired judge Charles Bernstein said defendants give up several possible avenues of appeal when they choose a bench trial, including how the jury was picked or what instructions were given before its deliberations.
"If a piece of evidence comes in that's really on the borderline between whether it has relevance, appellate courts generally give a trial judge a lot of discretion about what he or she lets in, and will give even more discretion when there's no jury involved," Bernstein said.
A bench trial, however, is likely to move more quickly and be "less emotional," he said.
"You've got an audience of one, who knows what this case is all about," Bernstein said. "He's been living with it a long time, and he doesn't suffer fools lightly."
Former colleagues of Williams have said that his role in the Justice Department, where he worked after a stint as an assistant state's attorney in Baltimore, involved bringing misconduct cases against law enforcement officers, but also knowing when to decline to press charges — giving him a rounded view of what constitutes misconduct and how such cases work.
The other five officers, including Porter, whose first trial ended in a hung jury, are scheduled to be tried consecutively over the next six months.