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Freddie Gray case: Officer Nero's attorneys seek to minimize his role in Gray's arrest

Freddie Gray case: Officer Nero's attorneys seek to minimize his role in Gray's arrest.

Attorneys for Baltimore Police Officer Edward Nero sought Thursday to minimize his role in the arrest of Freddie Gray, saying that he pursued the 25-year-old based on a supervisor's calls for help and only touched him to try to find his inhaler.

But as Nero's bench trial began in a downtown courtroom, prosecutors argued that the officers who detained Gray on April 12, 2015 lacked legal justification to do so, making his arrest an assault. Legal observers have said it is an unusual theory, and the case is expected to involve complex arguments about the authority of officers to stop citizens.

The trial, which could last five days, also involves allegations that Nero failed to care for Gray when he did not secure him with a seat belt in the back of the arrest van, where Gray ultimately suffered a fatal spine injury.

Nero, 30, has pleaded not guilty to misdemeanor charges of second-degree assault and misconduct related to Gray's arrest, and reckless endangerment and a second count of misconduct stemming from the way Gray was loaded into the van.

Chief Deputy State's Attorney Michael Schatzow told Circuit Judge Barry G. Williams that officers pursued Gray through Gilmor Homes in West Baltimore after a supervisor, Lt. Brian Rice, radioed that he was engaged in a chase. All they knew, Schatzow said, was that Gray was being sought — but not why — when they handcuffed and searched him. Those were not grounds for an arrest, he said.

Nero "had no idea what was suspected, and he made no effort to find out," Schatzow said. "Their plan was to … arrest him, and then decide whether to unarrest him."

Officers can only detain someone for as long as it takes to determine whether that person has a weapon or if the officer is in danger, Schatzow said.

Nero "knew better than all this," he said.

Nero's defense attorney Marc Zayon said his client had a limited role. Rice was out of Nero's view when he called out over the radio that he was involved in a pursuit, and Officer Garrett Miller was the one who caught and handcuffed Gray, Zayon said. Miller was in control, at one point asking Nero to retrieve his bike from a few blocks away.

To prove Nero committed an assault, Zayon said, prosecutors need to show "unconsented touching." And Nero, a trained EMT, only searched Gray after he asked for an inhaler, Zayon said..

"It is clear in this case that everything that was done, not only by Officer Nero but all of the involved officers, was done correctly," Zayon said. He said Nero will be judged against what a "reasonable" officer would do, and that the defense would present experts and other officers to back his actions.

Gray died a week after his arrest, sparking widespread protests and leading the city to pay a $6.4 million settlement to his family.

Tessa Hill-Aston, president of the Baltimore NAACP, attended Thursday's proceedings and said the case highlighted unnecessary stops made by police every day.

"Too many police want to catch somebody, but they're in the wrong places trying to chase the wrong people," she said. "Freddie was a waste of their time, and he's dead because of it."

Warren Brown, a local defense attorney who watched the proceedings but is not associated with the case, said prosecutors are "just getting started," but that he "wasn't overwhelmed with what they presented so far."

He said that Nero's role in Gray's stop and arrest appeared to be minimal. "This is not his 'collar,' so to speak. It's not his arrest," Brown said.

Eight witnesses were called during the first day of testimony, with prosecutors laying some of the same groundwork regarding police policies and training that they presented to a jury last December in the trial of Officer William Porter, which ended with a hung jury.

Porter and Miller have been ordered to testify under immunity and could both be called as witnesses at Nero's trial.

Nero is not charged in Gray's death, but is accused of putting him into a dangerous situation. Williams has limited discussion in Nero's case about the extent of Gray's injuries, after defense attorneys argued that reckless endangerment only requires prosecutors to show the conduct was risky, and not necessarily what resulted.

There was no discussion Thursday of the knife found on Gray, which the officers had cited as justification for his arrest.

When prosecutors charged Nero and the other officers last May, they said his knife was legal under state law, making Gray's arrest illegal. Defense attorneys had argued that the knife was illegal under city code, and prosecutors have since determined the issue to be moot because they say Gray was wrongfully detained before the knife was even found.

Zayon, in his opening statements, said the officers were backed by legal precedent that allows for chasing and detaining someone who is fleeing in a high-crime area. He noted that the officers were patrolling the area after receiving a directive from "a designee of Marilyn Mosby, the State's Attorney of Baltimore City" to step up enforcement due to citizen complaints of open air drug dealing.

Mosby attended Thursday's proceedings, sitting in the front row.

Schatzow referred to "Terry stops," the phrase used to describe a 1968 Supreme Court decision that held that officers can briefly detain someone if they have "reasonable suspicion" that the person has been involved in a crime. Schatzow said Nero and Miller "did nothing that Terry requires, and did things Terry does not allow" by not trying to find out why Gray was being pursued.

As in Porter's trial, prosecutors called police officials to describe agency procedures and rules about transporting detainees, with the defense peppering them with questions about the real-world application of such directives.

And as in the Porter trial, the defense maintained that the responsibility to secure detainees fell on the van's driver, not the arresting officer, and that it was often "impossible" for officers to climb into the back of the van to fasten a seat belt without risking injury.

The van's driver, Officer Caesar Goodson Jr., faces charges including second-degree murder in the case.

Prosecutors sought to show that the Police Department was focused on improving safety in arrest vans. It paid extra to outfit the vehicles with seat belts, performed audits to make sure they were being used, and just days before Gray's arrest issued a new rule requiring that officers always secure detainees with seat belts.

But police officials didn't always back prosecutors' contentions. Capt. Martin Bartness, who was involved in the drafting of the order, testified that officers always retain overarching discretion to make decisions based on circumstances.

The officer who performed the audits in 2014, Detective Edward Bailey, testified that he checked van drivers for compliance with the rules, because it was the driver's responsibility to belt detainees.

Training instructor Adam Long, who taught cadets how to safely seat-belt detainees, also backed the idea that the "wagon man" takes control once an arrest is made. But, under questioning from Zayon, he maintained that detainees shouldn't be left unsecured even if they are combative.

Zayon noted that department policies were employment rules, not state laws. He said officers fear that detainees will head-butt or spit on them, and said an unruly crowd was gathering as Gray was being arrested.

But Schatzow said Nero "needlessly risked Mr. Gray's life, and thereby ignored his duty to keep him safe" by not securing him. He said Nero was in no danger from Gray, but simply didn't care.

jfenton@baltsun.com

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