Charm City's Odd Charging Theory Against One of Six Defendants in Freddie Gray Killing

I was in Baltimore this weekend, so I was prompted to write about the truly odd legal theory being tried as we speak in a bench trial for Edward Nero, one of the six officers charged in the killing of Freddie Gray last year.  A little background on the charges because this case has already brought up some unusual issues that, depending on the appellate courts, may affect Maryland defendants in all cases going forward.  

Six officers were charged in the killing.  The charges were announced very publicly by State's Attorney Marilyn Mosby last year, less than a month after  Gray was killed.  The charges ranging from misdemeanors to second-degree murder for the driver of the van.  All six officers managed to get individual trials, which does not often happen in cases where defendants are charged with similar crimes arising from one event.  The jury trial of William Porter, who was a passenger in the van with Gray, charged with involuntary manslaughter, assault, reckless endangerment, and misconduct in office, ended in a mistrial; he will be retried.  Meanwhile, in a pretty surprising decision, Maryland's highest court ruled that the prosecution could force Porter to testify at the trials of his fellow officers (would be co-defendants). Here, the prosecutor has said that nothing Porter reveals will be used against him at his future retrial, but he could be opened up to new charges, particularly perjury charges if anything he says differs from what he has said before.  And that's not to mention the media coverage and potential tainting of his future jury. The Court  has not handed down the promised reasoning for that order but if it does not hold very narrowly, this decision could be a major sea change for defendants who usually either strike a deal before they testify against a co defendant or invoke their right to silence.  Maryland prosecutors could now force testimony without a plea bargain, shifting power even further to prosecutors.  

Even more interesting, in my opinion, is the theory under which the prosecution is trying Nero for assault.  Nero is one of the officers who is alleged to have arrested Gray, put him in handcuffs, and put him into the van unsecured by any seatbelt.  He is charged with second-degree assault, misconduct in office and reckless endangerment. The assault charge stems from the theory that the police did not have probable cause to arrest Gray, and therefore, handcuffing him was an assault.  This is a pretty radical theory --  an officer who illegally arrests someone could be guilty of assault -- given the thousands upon thousands of illegal arrests that go on in this country.  If the prosecution is successful on this issue, it could dramatically increase potential criminal liability for police officers.  

On one level, this theory addresses and publicizes a big problem in law enforcement  -- police officers make illegal arrests way too often and with almost no accountability mechanisms built in (suppression hearings, even if won, do not discipline the officer, it's near impossible to win a lawsuit against a police department for unlawful arrest, etc...).  Worse, prosecutors continually pursue cases where officers have made illegal arrests and, at best, turn a blind eye to such misconduct/"assault." I wish Mosby would apply the same time and critical eye to the improper arrests of the many civilians prosecuted by her office as she has coming up with a theory for assault in the Nero case.  On another level, this opens up a world of potential criminal liability for officers that should be handled through better training/incentives on the front end.  And, it seems hypocritical to prosecute cases against ordinary citizens where police misconduct occurs but is unacknowledged or ignored on the one hand, and then to bring felony charges against another officer for making an illegal arrest on the other. 

The prosecution rested its case yesterday, so we won't wait too long to see what the judge thinks about the assault theory.  For those interested in daily reports on the trials,  follow reporter Justin Fenton  (@justin_fenton) and law prof David Jaros (@profdavidjaros) on Twitter.