Originally published in VICE on May 11th, 2016.
More than a year after the death of Freddie Gray, the 25-year-old who suffered a fatal spinal cord injury while in Baltimore police custody, not one of the six cops charged with his death has been successfully tried, much less convicted of a crime. But after a mountain of procedural postponements, the first verdict could come down as soon as next week.
The first city officer to go on trial was William Porter, the cop who checked on Gray while he was caged in a police van on April 12, 2015. Porter was charged with manslaughter, second-degree assault, reckless endangerment, and misconduct in office in a proceeding last December, but when jurors were unable to come to an agreement on any of the charges, the judge declared a mistrial.
Leading up to that first go-around, there was plenty of controversy over whether the trials should even take place within Baltimore proper. The defense argued their clients would not receive fair trials given the highly publicized—and deeply controversial—nature of Gray’s death. Still, Judge Barry G. Williams, a black man who once prosecuted police misconduct cases for the feds, wanted to at least try to hold the trials locally, the idea being that it’s essential citizens be tried by their peers in America’s criminal justice system.
Porter’s re-trial is now scheduled for June. Jumping to the front of the pack in his place is Officer Edward Nero, one of the bike patrol cops who initially made eye contact with Gray on the street that day, and ultimately arrested him. Nero’s trial starts Thursday for second-degree assault, reckless endangerment, and misconduct charges, but he won’t be contending with a jury. Instead, at his own request, the officer is receiving a bench trial—which is to say the only person he has to convince of his innocence is Judge Williams.
There are a handful of reasons a cop might opt for a bench trial over a jury trial, according to David Jaros, a law professor at the University of Baltimore. For starters, it’s possible judges are more sympathetic towards cops, given that they regularly work with police and see themselves as part of the same criminal justice system.
The defendant might also prefer a bench trial simply because he thinks the jury won’t be fair.
And while some Baltimore denizens might be miffed at the idea of a cop avoiding a regular jury, Jaros says that “at the end of the day, it’s important to remember that the rights and interests of defendants come first in our system.” If Nero thinks a jury would never give him a fair hearing, then a bench trial—where one judge makes the call—is his legal right.
If nothing else, bench trials tend to be much faster than jury trials; no time has to be spent finding and prepping a jury—America got fresh insight into how crazy this process can be in the recent miniseries The People v. OJ Simpson: American Crime Story. And as Jaros points out, even the mechanics of offering evidence and objecting to which facts merit consideration are simpler in bench trials.
For its part, the prosecution is expected to argue Nero lacked probable cause to arrest and detain Gray in the first place. Indeed, based on legal filings reported by theBaltimore Sun, the prosecution is making the novel case that Nero’s conduct was “objectively, criminally unreasonable”—that the initial cuffing was a crime.
The defense can be expected to counter that Nero had reasonable suspicion to arrest the man. Attorneys will likely also point out officers found a knife, which was allegedly clipped to Gray’s pants. (The prosecution and defense disagree over whether carrying around this knife was illegal.
Nero could face at least 15 years in prison.
Peter Moskos, a former Baltimore City cop and professor at John Jay College of Criminal Justice, suspects the prosecution’s strategy won’t work. And if Nero does get convicted, Moskos says, the result would “drastically change policing” because it would suggest “you’re not immune from making an honest mistake, a good-faith error.”
It’s true that American cops generally operate with a great deal of discretion. Which makes most experts deeply skeptical Judge Williams would actually issue a guilty verdict. “The first thing to remember is that even having an officer charged with a crime is rather unusual,” Jaro, the law professor, says. “As we saw in Ferguson, and with Eric Garner in Staten Island, there wasn’t even an indictment of those officers in the end. It’s rare that we even get to this point.”
According to Boston College Law Professor Robert Bloom, probable cause is a pretty subjective kind of assessment. “Given that officers are given a great deal of discretion, it really has to be egregious for there to be criminal action,” he tells me. While Bloom thinks Nero did not have probable cause to make the arrest, that doesn’t mean he will—or should—receive criminal sanctions over it.
But is it really fair for cops in the United States to complain about lacking support from the government? While Baltimore State Sttorney Marilyn Mosby received national attention for indicting all six officers last years, Moskos notes another prosecutor could have “just as easily not charged any of the cops.”
Some Baltimore residents see things very differently.
Michael Wood, a former city cop turned police reform activist, argues that it’s a “fundamental false idea” that the state attorney should back the police. “An officer who believes he’s in fear can do anything that a ‘reasonable officer’ can do, up until, and including, killing someone,” he says. “While that might sound okay if an officer is judged by another reasonable officer, what if all the officers are unreasonable?”
Wood adds that it should be civilians who determine the reasonableness of police conduct, not other cops or law enforcement figures. He thinks citizens would still fundamentally side with the cops, but that it could represent a big improvement from the status quo. “You’re not going to regulate Wall Street properly with another banker,” he says.
The trials come on the heels of one of Baltimore’s most violent years. There were 344 homicides in 2015, a per-capita record, and as of Tuesday, there had been 90homicides so far this year. (During the week of the Baltimore Uprising anniversary last month, there were ten homicides, along with three police-involved shootings, including a fourteen-year-old boy who was shot while holding a BB gun.)
While political momentum for police reform was massive a year ago, today there’s mixed sentiment about how far the city has come—and will ultimately go.
Wood thinks real change won’t come about until civilians play a more significant and meaningful role in shaping how policing is handled and monitored. “That’s the fundamental change that must occur,” he tells me. For now, the former cop thinks the police department is basically where it was. “Your big change in criminal justice reform is helping white kids who overdosed in the suburbs.”
But reformer Diana Morris, director of the Open Society Institute-Baltimore, is cautiously optimistic. She points to some recent policy changes, like bringing civilians into the trial review board, and limiting the length of time accused officers can wait before speaking with investigators, among others changes. The state legislature recently passed a billthat would prioritize drug treatment over prison, improve parole practices, and end mandatory minimum sentences for nonviolent drug offenses.
“But frankly the real [impetus] for change is going to come out of the DOJ investigation,” Morris tells me. The Department of Justice commissioned a federal probe into the Baltimore Police Department last May, and their findings of fact should come out soon. “That will be a very important next step because that serves as the basis that recommendations or changes that require a consent decree will weigh on,” she says.
Some veteran cops like Moskos, however, take a grim view on the future of violence in Baltimore, officer-involved or otherwise.
“You’ve got police worried about doing their job and being put on jail for it,” he says. “Liberals say if crime is going up then police aren’t doing their jobs, but those people never admitted that cops mattered before. That’s the factual part that people don’t agree on. What’s the role of police and crime prevention?”