While some legal wrangling and a decision by the Maryland Court of Appeals will delay trials for two of the officers charged in the death of Freddie Gray and will impact the retrial of another, the trial of Baltimore police officer Edward M. Nero will begin as scheduled on February 22. Nero is charged with misdemeanor counts of second-degree assault, misconduct in office and reckless endangerment. Unlike officer William G. Porter, who is the only of six officers charged in Gray’s death to have been tried, Nero’s charges center around Gray’s initial arrest after running from police, which prosecutors allege was unlawful and contributed to the circumstances of his death.
Defense attorneys for Nero have filed a motion to block any mention of “excessive force” by the prosecution, a decision which might have implications on the outcome of Nero’s trial as well as the other officers. The Baltimore Sun reports:
"Notably, the State does not now allege nor has it ever alleged that any excessive force was used on Mr. Gray by any of the six defendant officers, including Defendant Officer Nero," the attorneys wrote in a pre-trial motion. "Instead, the State's theory of second-degree assault against Defendant Officer Nero is that, as a result of a lack of probable cause, any physical contact with Mr. Gray was unlawful."
[...]
In their initial description of the assault charge in June, prosecutors wrote that Nero had caused "offensive physical contact with and physical harm to" Gray, and that the contact "was the result of an intentional act" and "not legally justified in that the Defendant used force to place Mr. Gray under arrest without probable cause."
David Jaros, a University of Baltimore law professor, said Judge Barry G. Williams will have to consider whether the state so narrowly construed its initial explanation of the charges against Nero that a shift now to an excessive force theory would violate Nero's rights.
Again, Nero’s trial will differ in scope and implication from that of Porter, whose trial was declared a mistrial and will be re-tried in June, as well as those of officers Caesar Goodson and Alicia White. Porter was charged with manslaughter in the death of Gray, who died after an arrest and ride in the back of a police vehicle. Goodson and White are also facing charges directly related to the incidents in the vehicle and Gray’s death.
Goodson’s and White’s trials are postponed pending a decision by the Court of Appeals on whether or not Porter can be compelled to testify in their trials. Goodson’s trial was scheduled to begin before Nero’s, and the six trials were originally scheduled consecutively, starting with Porter’s.