As a prosecutor, you never try a case you can’t win. Which begs the question of why in the world Baltimore prosecutors would even try Officer Edward Nero rather than focus their efforts on his fellow officers, who are facing the most serious charges.
Based on the facts in this case, Judge Williams was spot on in his decision to acquit Officer Nero of all charges brought in connection with the death of Freddie Gray.
The prosecution’s theory of the case would have led to absurd results. Here is an officer who was not involved in the initial chase, handcuffing or transport of Freddie Gray. By all accounts the only time Nero ever touched Gray was to assist the already-handcuffed man with retrieving his inhaler.
The prosecution’s ultimate theory was that Officer Nero assaulted Gray because, at the time of his arrest there was no probable cause to charge him with a crime, and therefore Officer Nero’s involvement was akin to harassment and therefore any contact with Mr. Gray constituted an offensive touching.
Really? Let’s think about this.
That would mean that every single time that an officer arrested an individual and the arrestee was not ultimately charged with a crime, the officer could be criminally charged with an assault. Most striking about this theory is that it completely ignores the fact that it is the prosecutor, and not the officer, who ultimately decides whether to criminally charge someone.
Here’s how the process works. Although an officer can cite the reason you have been arrested, and even recommend a particular criminal charge, you have not officially been charged with a crime unless and until the prosecutor decides to do so.
As a prosecutor, I routinely exercised my discretion to charge a crime independent of the officer’s insistence. There are a host of reasons why I might ultimately decide not to convert an arrestee to a defendant — not the least of which is that there is no crime. I might question the credibility of the officer or a key witness. I might be missing key evidence. I may only have insufficient circumstantial evidence, where absolute proof is required.
Or, the offense itself may have been insignificant compared to the hundreds of other cases that came before me that day, and simply did not merit the devotion of legal resources needed to prosecute it. Like it or not, justice is sometimes a cost-benefit analysis.
This is precisely why punishing the officer for the ultimate decision of the prosecutor would set a dangerous precedent. This case came down to convincing a judge to ignore that danger and accept a novel (and incorrect) legal theory. A jury may have been more receptive to this.
Prosecutors routinely appeal to the passion and sympathy of a jury pool, strategically weaving the most provocative facts into their legal theory. After all, a man involuntarily entered a police van allegedly uninjured and left with a fatal spinal injury. Like teenagers trying to stick to their concocted story, no officer involved said they had any idea what happened.
To a jury, every hand that touched Mr. Gray could have contributed to his death, and jurors could have decided to convict based on that presumption. But a judge should and did require more. Like a prosecutor, a judge is presumably less influenced by passion than facts. And like a prosecutor, a judge is motivated by what is proven, not what you believe. This is the benefit of having a nonjury trial, and Officer Nero capitalized on it.
Calls for justice are understandable, but sadly, they are misguided in this case. Some complain that prosecutors rushed to judgment when they charged each of the officers for their involvement in the death of Freddie Gray and should have been more selective in their prosecution.
With a hung jury and now an acquittal under its belt, the complaint seems warranted. But hindsight aside, the complaint is simply naive. When you are prosecuting multiple defendants, and have no video footage of the crime, the prosecutors had two options: charge everyone in the hope that someone will talk, or grant immunity to the key witnesses and force them to testify against the real culprit.
Immunity was an option but it would have required the prosecutors to know what precisely happened inside that van. They did not, and they chose not to risk immunizing the actual culprit. The latter method works with powerless defendants who are unfamiliar with or mistreated by the criminal justice system and are susceptible to trickery.
When it comes to trying multiple officers, however, the prosecutors just hit an unexpected wall of silence. And it was resoundingly blue.
But what worked in favor of Officer Nero will not work for each of the remaining officers. If we have learned anything from the trial testimony of Officers Porter and Nero, it is that the officers’ collective finger points directly at the van’s driver, Officer Caesar Goodson, for the fact that Gray was not seat belted in the back of the van.
In both cases, the defense’s theory has been that the ultimate responsibility to seat belt Gray lay with the driver, and that the fatal injury occurred during his transport, not during the course of their officer’s respective involvements. Whether Officer Goodson is a scapegoat or a culprit is for the remaining trials to decide.