Cops Will Testify Against Cops as Trials for Freddie Gray's Arrest and Death Resume

On April 27, one year after riots broke out in Baltimore in the wake of Freddie Gray's funeral, crowds gathered at the scene to recognize the anniversary. Outside the CVS Pharmacy destroyed in the chaos — it's now newly renovated — uniformed police officers lingered on the sidelines during as crowds reflected on the 25-year-old's death while in police custody.

Kevin Moore, who shot a much-viewed cell phone video of Gray's arrest, raised two middle fingers and yelled "Fuck that!" at a drone buzzing overhead as bystanders wondered aloud whether it was being operated by the police. A few minutes later, Moore maneuvered a giant barbecue through the crowd to grill hot dogs while people shared their own stories of police brutality, staged spoken-word performances, sang, and demanded greater police accountability.

Nearby, Mayor Stephanie Rawlings-Blake hosted a separate "Day of Reconciliation" event. It was not as well-attended.

The week of anniversary events commemorating Gray, his death, and its aftermath has passed, but the process of accountability for the six officers facing charges related to his arrest and death is just beginning. The trials resume today with the case of Edward M. Nero, one of the officers involved in Gray's arrest. He has pleaded not guilty to four misdemeanors including second-degree assault, misconduct in office, and reckless endangerment in connection with Gray's death.

Two of Nero's colleagues are expected to take the stand against him. Never before in Maryland have co-defendants with pending charges for the same crime been forced to testify against each other.

Nero was one of three officers on bike patrol near the Gilmor Homes public housing complex on April 12, 2015 who arrested Gray after he ran from police. Officers found a switchblade knife on Gray. Nero and two colleagues appear in Moore's video, which shows Gray, his hands cuffed behind his back, being lifted into the back of a police van where, fatefully, he was not seat-belted.

In pretrial motions Tuesday, Circuit Court Judge Barry Williams granted a number of motions limiting the information that will be presented in Nero's trial. At the defense's request, any video of Gray's arrest shown in court will have the audio muted on the grounds that Gray's wailing and the commentary of onlookers could prejudice the case; a "step-by-step" rehashing of Gray's injuries sustained after the arrest will not be permitted, nor will discussion of Gray's past run-ins with the law and his exposure to lead poisoning as a child. The state will not be allowed to argue that the knife found on Gray was legal, as their case argues that the knife was found after Nero committed the alleged wrongful arrest.

Nero also waived his right to a jury Tuesday, and will instead have his fate decided by Williams, who said his verdict would "certainly not be based on emotion." Nero's verdict will be the first in these high-profile cases, and could come as early as next week.

The trials have been on hold since December, when a mistrial was declared in the case of 26-year-old officer William G. Porter. Months of delays followed while Maryland's highest court grappled with the key question of whether Porter can be forced to testify under limited immunity while he still has pending charges against him in Gray's death, including involuntary manslaughter and second-degree assault. Prosecutors allege that Porter, who was called to the arrest while on neighborhood patrol, repeatedly failed to respond to Gray's requests for medical attention.

Porter's immunity means that his compelled testimony cannot be used against him at his own trial. His lawyers argued to a panel of judges in March that forcing him to testify was nevertheless a violation of his Fifth Amendment right against self-incrimination. But the Maryland Court of Appeals sided with prosecutors, who argued that Porter's version of events is central to their case against at least two of the officers, and that the immunity protects his rights.

The prosecution followed up the victory by compelling a second officer to testify; Porter and Officer Edward Miller are both expected to take the stand in Nero's trial this week. Porter could, in fact, be called to testify against all five fellow officers.

According to Douglas Colbert, a University of Maryland law professor who has been following the trials, the appeals court decision illustrates an important point about the right to remain silent: It's not infallible.

Colbert says compelled testimony is the sole option for breaking the police code of silence given the already "extraordinary" fact that the officers have been charged at all. "It's the only way a prosecutor can gain the cooperation of a police witness to a crime," he said.

But, he added, "The only reason this is unprecedented is because police officers are rarely prosecuted," pointing to a Bowling Green State University study finding that during a seven-year period ending in 2011, just 41 officers in the US were charged with murder or manslaughter in connection with on-duty shootings.

While the charges against Nero are relatively minor compared to those faced by the other officers, the outcome of his trial is expected to have major implications, particularly for Lieutentant Brian Rice and Officer Garrett Miller, who also appear in video footage of the arrest. The case against all three relates primarily to whether there was probable cause to pursue and arrest Gray in the first place. The cases against Porter, Sargent Alicia White, and Officer Caesar R. Goodson are quite different, relating more specifically to the injuries sustained by Gray in the police van, and the alleged failure of the three to provide medical attention.

Officials concluded that Gray suffered several neck and spinal cord injuries while in the van and was not given prompt medical attention. He died of his injuries a week later, sparking widespread protests and rioting across Baltimore. Maryland Governor Larry Hogan called in the National Guard, and a week-long curfew was put in place by Rawlings-Blake. Police Commissioner Anthony Batts was fired for his handling of the unrest.

On May 1, 2015, Baltimore City State's Attorney Marilyn Mosby charged the six officers in connection with Gray's death, prefacing the announcement with a promise of justice: "To the people of Baltimore and demonstrators across America, I hear your call for 'No justice, no peace.'"

Nevertheless, David Jaros, a former public defender and University of Baltimore law professor, along with other legal experts, have questioned the strength of the state's case against the officers, and the likelihood that they will face jail time.

"These are very difficult cases to prove beyond a reasonable doubt," Jaros said of the charges, which range from misdemeanor assaults to second degree depraved heart murder. The latter, most serious charge is faced by Goodson, the driver of the van, whom prosecutors allege gave Gray a "rough ride" during a 45-minute trip to the Western District police station, where Gray was discovered unconscious.

The charge, characterized by a callous and wanton disregard for human life, will be "extremely hard to prove" for the prosecution, says Jaros. He likens the crime to throwing cinder blocks off a roof into a crowd below. "We're not aiming for anyone, we don't have the intent to kill, but we really don't care if that happens — that's depraved heart murder."

To convict Nero in this week's trial, prosecutors must prove that he lacked probable cause to make the arrest that led to Gray's death, and that in doing so he used an unnecessary amount of force — another extremely difficult theory to prove, according to Baltimore-based attorney Warren Alperstein.

In a high-crime area, "officers are allowed to pursue an individual who flees from police unprovoked, detain them, and frisk them," he says, adding that this policy is based on the same Supreme Court case, Illinois v. Wardlow, used to defend the New York City Police Department's controversial stop-and-frisk policy.

But even a conviction on relatively minor charges such as those face by Nero could jeopardize the officers' careers. An assault conviction could land Nero in jail for up to 10 years.

The trials are expected to be closely watched by prosecutors who are weighing the risk of bringing brutality cases against police, with whom they work hand-in-hand to build cases. "For prosecutors, a lot will ride on what the long-term takeaway of this case is," says Jaros, setting a precedent for "whether it's political suicide to aggressively pursue police brutality cases."

The six officers' trials are scheduled to run through October. All will be presided over by Williams.

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