After months of delays and action by Maryland’s highest court, trials against six police officers accused in the death of Freddie Gray were to resume Tuesday morning at Courthouse East with pre-trial motions. But the actual trial will be put off for one more day.
Baltimore State’s Attorney Marilyn Mosby asked for a one day delay in the start of Officer Edward Nero’s trial because a power outage in her office over the weekend slowed preparations. Nero’s lawyers said they had no objection.
Once the trial begins, prosecutors are expected to argue that Nero, one of the arresting officers, did not have the authority to chase Gray on April 12, 2015. That made Gray’s arrest illegal and putting him in handcuffs amounted to assault.
But former prosecutor Warren Alperstein says it’s a tall order to prove that theory.
“The Supreme Court has ruled repeatedly that when an individual flees unprovoked from police officers in a high drug trafficking area, the officers are within their legal rights to pursue, apprehend and ultimately frisk that fleeing citizen,” he said.
Nero, who is charged with second degree assault, misconduct in office and reckless endangerment , was on bike patrol around Gilmour Homes in West Baltimore when he made eye contact with Gray and Gray ran. Nero and Officer Garrett Miller chased him, tackled him and found a knife; the probable cause for arrest.
But the legality of the knife remains in question and defense attorneys are trying to keep out any discussion of the knife, whether or not Gray’s arrest was legal and injuries suffered by Gray.
Alperstein says prosecutors could argue that Nero did not have any “good faith” belief that Gray was armed or dangerous.
“The simple running from the officers unprovoked and doing nothing else; not throwing a gun, not holding on to a bag that may appear to be heavy, perhaps, that bag holding a gun,” he said. “Absent those things, perhaps, the state would argue that the officers would have no right to detain Freddie Gray.”
But the Supreme Court ruled in 2000, in Illinois v. Wardlow, that police officers can chase a citizen who runs off unprovoked in a high crime area.
Still, Alperstein said prosecutors could be operating on the theory that an assault on Gray occurred “when they put their hands on Gray to stop and detain him at the end of [the] pursuit.”
Then there is the question of what Nero’s fellow officers could say.
The Court of Appeals, Maryland’s highest court, ruled in March that Officer William Porter must testify against Nero. And Circuit Judge Barry Williams, who is presiding over the case, granted last month the state’s request to force Miller, Nero’s partner, to testify.
Miller’s lawyers say they are waiting for the Court of Appeals to issue a written opinion in Porter’s case before they decide whether to appeal Williams’ ruling.
Alperstein says Miller could provide new information, but it’s unclear whether the state is relying on his testimony.
“You have to remember that Officer Miller was not added as a witness until very late in this process,” he said. “We didn’t find out that he was going to be compelled to testify until about the last five weeks.”
Meantime, the state has asked Williams to keep information about Gray’s criminal record, past hospitalizations, prior civil claims and lead paint exposure as a child from coming out at Nero’s Trial.
They also want to keep defense lawyers from calling them as witnesses. The defense has subpoenaed seven Assistant State’s Attorneys and a District Court Commissioner.
Those are among the motions to be argued this morning.
Legal observers say they expect the defense to ask Williams to try the case without a jury, but they haven’t made that request yet.