Legal expert Doug Colbert says by arguing Gray’s arrest was illegal, prosecutors are putting forth an untested legal theory that could have far reaching implications

Story Transcript

JAISAL NOOR, TRNN: A white Baltimore police officer will be tried by a judge instead of a jury on charges stemming from the 2015 death of Freddie Gray, a black man who died in police custody, a Maryland judge ruled during pretrial motions on Tuesday, May 10. DOUG COLBERT: In the relatively rare circumstance where police officers are accused of a crime, the strategy of choosing a judge as opposed to a jury has been a time-tested successful strategy for gaining an acquittal. The trial is set to begin Thursday. Edward Nero, 30, is the second officer to face trial in Baltimore over Gray’s death from a neck injury suffered in a police transport van. The incident sparked mass protests across Baltimore and the nation and culminated in State’s Attorney Marilyn Mosby charging Nero and five other officers with Gray’s death. Nero was one of the bike cops that carried out the initial arrest of Gray. He’s charged with four misdemeanors: carrying out an second-degree assault, two counts of misconduct in office, and reckless endangerment. In a win for the prosecution, Judge Barry Williams denied a defense motion to block prosecutors from arguing Gray’s arrest was not supported by reasonable suspicion and not being otherwise legally justified. Legal expert Doug Colbert has closely been following the Freddie Gray case. DOUG COLBERT: The message I hear the prosecution delivering to the police on duty is that do not make an arrest without probable cause, because if we find out that arrest represents an egregious instance of improper or wrongful action, that we may hold you accountable for the acts that you engaged in following the arrest. NOOR: Colbert notes that a majority of arrests in Baltimore do not lead to criminal charges COLBERT: On average about one-third of people are convicted, and two out of three find the charges are dismissed or placed on inactive docket. I see the message that the prosecution wants to take a more active, like prosecutors do around the country, in being the gatekeeper, in deciding which people are charged with crimes and what people are brought into the justice system. NOOR: Colbert says the prosecution could have wide-reaching implications if it proves to be successful. COLBERT: I think what the prosecutor is doing here is putting forward legal theory that other prosecutors have not yet put forward, which would have a great deal of meaning, depending of course on what the evidence reveals. NOOR: In a win for the defense, Williams said he was granting at this stage a defense motion for no discussion of a spring-assisted knife found on Gray. Prosecutors and the defense have sparred over whether the knife was illegal under state or city law. On Tuesday Judge Barry Williams also granted a request by Nero’s lawyers to waive his right to a jury and have Williams decide his fate in a bench trial. The first trial, that of Officer William Porter, ended in a hung jury in December. But police routinely waive their right to a trial by jury, because they think judges are more likely to render a not guilty verdict or impose a lighter sentence. Colbert cited the case of Cleveland police officer Michael Brelo, who asked for a trial by judge after shooting dead two unarmed black passengers over a dozen times. He was acquitted in May of 2015 after a judge said he acted reasonably. COLBERT: That is an excellent example of a police officer finding a sympathetic and emphatic judge, who applied the law of what is a reasonable police officer in a similar situation, and concluded the officer did not act unreasonably despite firing about 50 shots through the windshield of a car, therefore killing two passengers in the front seat. I cannot think of a time when a judge found a police officer not guilty. That’s not to say the Baltimore City judge won’t find the officer guilty of one or more of the charges, but it is a strategy that has been followed quite regularly. NOOR: After months of legal wrangling and delay, Porter, along with fellow officer Garrett Miller, have been compelled to testify in Nero’s trial. The Real News will be covering the trial of Edward Nero and will bring you breaking news and developments on social media @ Jaisal Noor on Twitter, and The Real News.com