- The Washington Times - Monday, May 23, 2016

The trial of a Baltimore police officer charged in the arrest and death of Freddie Gray has provided state prosecutors with a new negotiating tactic, even as Monday’s acquittal of Officer Edward Nero on all counts dealt them a setback, criminal defense attorneys said.

A Maryland appellate court had compelled the testimony in the Nero trial of another officer who also is accused in Gray’s death, without a plea deal and with only limited immunity. Defense attorneys said the decision has set a precedent that prosecutors can cite in future cases.

“This gives prosecutors another tool in their vast arsenal to compel co-defendants to testify against one another without making a plea deal,” said Katherine A. Levine, a law professor at New York University.

Defense attorney Barry Slotnick said a court compelling a defendant’s testimony “will happen again.” He criticized the appellate court decision, saying, “It’s just wrong to have a defendant testify against another defendant in that way.”

But the compelled testimony apparently did prosecutors no favors in the trial of Officer Nero, one of six officers charged in the Gray case. The verdict is the first to be rendered; the first trial of another officer ended in a hung jury in December.

On Monday, Baltimore Circuit Judge Barry G. Williams found Officer Nero not guilty of second-degree assault, reckless endangerment and misconduct in office for his role in the arrest and death of Gray, a 25-year-old black man who died after his neck was broken during a ride in the back of a police van in April 2015. Gray was handcuffed and shackled but not restrained by a seat belt. His death and funeral sparked protests and riots in Baltimore, and helped fuel the national Black Lives Matter movement.

Officer Nero, who faced a maximum penalty of 20 years in prison, opted to have his trial decided by a judge, not a jury.

“Judge trials of police officers almost always result in not guilty verdicts because defense lawyers know that judges will credit the danger of a police officer’s job on the reasonable doubt scale,” said James A. Cohen, a professor at Fordham University School of Law in New York City.

Officer Nero remains on desk duty and still faces a departmental investigation that could result in disciplinary action.

About a dozen protesters gathered outside the courthouse as the verdict was read, but they were far outnumbered by members of the media.

Mayor Stephanie Rawlings-Blake noted the departmental review and pleaded for calm.

“We once again ask the citizens to be patient and to allow the entire process to come to a conclusion,” she said. “In the case of any disturbance in the city, we are prepared to respond. We will protect our neighborhoods, our businesses and the people of our city.”

Marc Zayon, Officer Nero’s lawyer, said that Officer Nero and his wife and family are “elated that this nightmare is finally over.”

“The state’s attorney for Baltimore city rushed to charge him, as well as the other five officers, completely disregarding the facts of the case and the applicable law,” Mr. Zayon said.

Prosecutors had accused Officer Nero of assault for arresting Gray without probable cause and of reckless endangerment for not securing him in a seat belt in the van. But Officer Garrett Miller testified last Monday that he, and not Officer Nero, had arrested Gray and that Officer Nero had minimal physical contact with the young man.

Officer Miller also faces charges in the Gray case, and his testimony had been compelled by the appellate court. His testimony contradicted a statement he had made to police investigators following the incident: He had used the pronoun “we” in reference to the arrest. He testified that that part of his statement was a mistake.

Warren Alperstein, a former prosecutor observing the trial, said the prosecution was at a disadvantage because it was unable to interview Officer Miller before he testified.

“That was the significant turning point,” said Mr. Slotnick, who successfully defended Bernhard Goetz, the man who shot four muggers on a New York City subway in 1984. “Prosecution’s attack was not much of an attack. They were going forward with the idea that there would be a conviction no matter what. And they were just wrong.”

The prosecution’s case appeared in trouble during closing arguments Thursday, when Judge Williams forcefully questioned prosecutors about why they had brought charges against Officer Nero and whether making an arrest without probable cause always constitutes assault.

Earlier this year, prosecutors had argued forcefully to compel the testimony of Officers Miller and William Porter, whose trial ended in a hung jury in December, against the four other officers. Officers Miller’s and Porter’s defense attorneys said that compelling their testimony would violate their constitutional guarantees against self-incrimination, but the prosecution said they had evidence that was key to the cases that could not be acquired by other means.

The Maryland Court of Appeals ruled that their testimony could be compelled but could not be used in any form in their own subsequent trials. However, they can be charged with perjury if their testimony in their own trials differs from their compelled testimony. The ruling required that different sets of prosecutors be assigned to the cases.

Ms. Levine of the New York University School of Law said the ruling “has the potential to further arm prosecutors.

“But in some ways, it’s a drop in the bucket because prosecutors have so much power already. This is just one more thing,” the law professor said.

Bartering testimony for a plea deal is one of the few bargaining chips available to a defendant, Ms. Levine said. Allowing prosecutors to forgo such negotiations in the Nero case could have a ripple effect not only in the five trials still left in the Gray case, but possibly in unrelated trials across the state, she said.

The next trial in the Gray case is scheduled to begin June 6: Officer Caesar Goodson Jr., who drove the van in which Gray was injured, faces the most serious charges of the six officers — second-degree “depraved heart” murder, involuntary manslaughter, second-degree assault, gross negligent manslaughter by vehicle and criminal negligent manslaughter. The charges carry a maximum penalty of at least 63 years in prison.

Other officers facing trial: Lt. Brian Rice and Officer Miller, both in July; Officer Porter in September; and Sgt. Alicia White in October. They face a variety of charges, including involuntary manslaughter and second-degree assault.

“The other officers will benefit by what happened today,” Mr. Slotnick said of Officer Nero’s trial. “Judge Williams‘ verdict will filter through.”

This article is based in part on wire service reports.

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