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Prosecutors, defense disagree in closings on what constitutes an assault at Officer Edward Nero's trial

Prosecutors, defense attorneys make final arguments; judge expected to announce verdict in trial of Officer Ed

In an unprecedented effort to attach criminal liability to everyday policing tactics, prosecutors zeroed in Thursday on a two-minute interaction to argue that Officer Edward Nero assaulted Freddie Gray.

They said Nero did so not by injuring Gray in any way, but by detaining him without asking why the stop was justified.

Under intense questioning from Circuit Judge Barry G. Williams during closing arguments in Nero's trial, Deputy State's Attorney Janice Bledsoe acknowledged the potentially broad implications of the theory — saying such scenarios routinely play out between police and Baltimore citizens.

"That's what happens in the city all the time. People get jacked up in the city all the time," Bledsoe said.

"Every time there is an arrest without probable cause, it is a crime?" Williams repeatedly asked, until Bledsoe hesitantly replied that it would depend on the circumstances.

Marc Zayon, Nero's attorney, argued that his client followed established legal precedent surrounding when and how police officers may stop fleeing suspects. Even if Nero had strayed from such precedent, Zayon said, it wouldn't amount to a crime.

"Like it or not, that's the law," Zayon said, glancing at the prosecutors.

The discussion illustrated one of the potentially most far-reaching assertions in the state's cases against Nero and the five other officers charged in Gray's arrest and death: that officers who stray from laws surrounding the search and seizure of suspects are not only liable to administrative reprimand, the tossing of evidence in court and civil lawsuits, but criminal charges as well.

Gray, 25, died a week after his arrest April 12, 2015, of spinal injuries suffered in a police transport van, prosecutors say. His death sparked widespread protests against police brutality, and his funeral was followed by rioting, looting and arson.

Nero, 30, is charged with second-degree assault and misconduct in office in connection with Gray's stop and arrest, and reckless endangerment and a second count of misconduct for his role in placing Gray in the van in shackles but without a seat belt.

Nero opted for a bench trial instead of a jury trial, and Williams is expected to announce his verdict at 10:30 a.m. Monday.

During closing arguments, Bledsoe and Chief Deputy State's Attorney Michael Schatzow suggested that common sense — such as knowing that the failure to secure someone with a seat belt presents a danger — can be as important in assessing the charges as the lack of legal precedent.

Schatzow also qualified Bledsoe's statements about arrests without probable cause amounting to crimes, saying such arrests become criminal only if the officer's actions are not "objectively reasonable."

Williams repeatedly peppered the attorneys with questions, picking apart their legal theories and challenging their assertions about evidence or facts in the case.

"I'm trying to figure out what you're arguing," Williams said of the state's theory of assault.

He later appeared incredulous when Schatzow argued that the assault charge was based on Nero's failure to ask Gray or Lt. Brian Rice, who called out the chase, about what had prompted the stop.

"If he asks Mr. Gray questions, without information from Lieutenant Rice, how is it going to help him?" Williams asked.

Schatzow acknowledged that it might not have helped Nero, but he still should have done it.

"I don't get it," Williams said.

Williams also questioned prosecutors' assertion that Nero was responsible for placing a seat belt on Gray in the back of the police van, in part because Nero never transferred custody of Gray to the van's driver, Officer Caesar Goodson.

If that was the case, Williams asked, did Nero maintain custody of Gray after the transport van had pulled off?

Schatzow said that would be hard to argue, but suggested Nero knew Goodson wasn't going to secure Gray with a seat belt, which made his own failure to do so reckless.

Bledsoe said there was no case law that prevents prosecutors from arguing that Nero's general participation in the arrest made him criminally liable, even if another officer — Garrett Miller, who testified at the trial — had been more directly responsible. Williams noted that prosecutors hadn't charged Nero with being part of a conspiracy, which he said was because they couldn't prove it.

Williams said there was no evidence to show Nero was present when Miller moved Gray from the initial spot where he was detained. "You want me to attribute that movement to defendant Nero?" he asked.

"I do," Bledsoe said. "There's no case law to show we can't."

Bledsoe also suggested that Miller was lying when he took responsibility for handcuffing and moving Gray.

"It's clear why he testified that way," she said. "He has immunity …"

"That you gave him," Williams interjected.

"It's his buddy," Bledsoe said. "He knows if he says that, it will exonerate his buddy."

Miller was provided limited immunity that bars his testimony from being used against him at his own trial in July. He has pleaded not guilty to the same charges as Nero.

Zayon, in his closing, said his client broke no laws, had no knowledge that anything he was doing was wrong, and acted in good faith throughout the stop and arrest of Gray. Zayon also argued, as he had during the trial, that Nero played only a secondary role in the incident.

Zayon said Maryland's reckless endangerment statute doesn't apply to incidents involving motor vehicles.

He said the state presented no evidence that Nero had received training telling him to secure passengers in vans with seat belts. Williams countered that police general orders tell officers to do so, and that there was also no evidence that Nero's instructors told him not to do that.

Both sides agreed in their closings that nothing about Gray's initial stop, before he was handcuffed and moved, was illegal. They also agreed that no assault was committed after Gray was searched.

In doing so, prosecutors ceded any argument that Nero was wrong to pursue Gray after Rice radioed that he needed help chasing him. They also, without stating it outright, acknowledged that a knife found on Gray was illegal, therefore substantiating all of the touching of Gray after its discovery.

With those acknowledgements in place, both sides agreed that the period of time in question for the assault charge was only a matter of minutes.

Zayon said it was 1 minute, 28 seconds — which he said was a completely reasonable amount of time to detain someone under the law, even prior to finding probable cause for an arrest. Schatzow said the time was closer to 3 minutes, and that detaining someone for that long without at least attempting to determine justification for the stop was unreasonable — and therefore illegal.

Among those watching the proceedings was Nero's father, also named Edward.

"We're very happy with the defense of my son, and we await the outcome," he said outside the courthouse.

Warren Brown, a local defense attorney who has been watching the proceedings but is not involved in the case, said the prosecution's summation was weak. He said he believes prosecutors felt they had to charge Nero and Miller — white officers captured in a video of Gray's arrest — even though the evidence isn't there.

"If you listened to the tortured arguments of the prosecution, it was clearly an attempt to fit a square peg into a round hole," Brown said. "To any listener, the judge clearly had significant problems with the assault charge."

Tessa Hill-Aston, president of the local NAACP chapter, said she felt prosecutors laid out in clear terms why Nero was one of the officers responsible for Gray's safety and failed to live up to that responsibility.

"Right now, it seems to me that everybody had a responsibility who had anything to do with putting Freddie Gray in the van, also driving him in the van, and also touching him," she said. "To me there's some fault with everybody."

krector@baltsun.com

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