BALTIMORE — Prosecutors say Edward Nero, whose trial in the arrest and subsequent death of Freddie Gray began Thursday in Baltimore, failed in his duty when he and other officers unlawfully arrested Gray, then neglected to buckle the shackled man's seat belt.
But defense attorney Marc Zayon told Baltimore Circuit Judge Barry Williams that Nero, a volunteer firefighter with a passion for helping others, wasn't involved in Gray's arrest, and that the officer's first physical contact with Gray was to help him look for an inhaler he'd been asking for after he'd already been placed in handcuffs.
Ultimately, a judge will decide which version of the story is true.
Nero faces assault and misconduct in office charges stemming from the arrest, and a reckless endangerment charge for not buckling Gray into a seat belt, as required by departmental policy. Earlier this week Nero opted for a judge trial rather than trial by jury.
Gray died April 19 of last year, a week after his neck was broken in the police wagon.
Nero was on bike patrol with the other officers, Lt. Brian Rice and Officer Garrett Miller, when Gray made eye contact with Rice and fled. Rice put out a call that he was involved in a chase and immediately, Miller and Nero joined the effort. The officers caught up with Gray, and he was arrested.
On Thursday Chief Deputy State's Attorney Michael Schatzow said that the officers would have been permitted to stop and briefly detain Gray if they had reasonable suspicion that he was doing something illegal — an act known as a "Terry stop." But Miller, Nero and Rice didn't frisk Gray to determine whether he was armed —a necessary step under the rules governing Terry stops — before searching and arresting him.
"There was no frisk when he was originally taken down," Schatzow said. "During this time they do nothing that Terry requires, and they do a search that Terry does allow."
Schatzow added that Nero "had no idea what was suspected, and made no effort to find out," when Gray was arrested. "Their plan was to go back to the Western District and figure out whether to arrest him, or unarrest him," he said.
Schatzow also said that Nero's failure to buckle Gray into a seat belt was callous and negligent, and had nothing to do with any risk Gray could have posed to the arresting officers.
"This is not an issue of danger. It's an issue of not caring." He said. "(Nero) needlessly risked Gray's life, and ignored his duty."
But Zayon painted a very different picture of the events of April 12.
Zayon told Williams that Nero wasn't involved in Gray's arrest: It was Miller who placed Gray in handcuffs, and Nero who was sent to retrieve the officer's bicycle while Miller walked Gray to the wagon. Zayon added that the first time Nero touched Gray was to help him, after he asked for his inhaler.
"The only time he touches Mr. Gray is when he asks for an inhaler," Zayon said. "He moves him up to look for it. He uses his EMT skills to make sure he's OK."
As for the foot chase that prompted Gray's detention, Zayon told Williams that an email from the prosecutor's office sent shortly before Gray's arrest directed officers to pay special attention to the area where Gray was arrested because it had been deemed "an open-air drug market."
Zayon said the officers had every right to chase and detain Gray under the circumstances.
"There's no question you can handcuff a fleeing suspect," Zayon said.
Zayon added that Nero and the other arresting officers did not try to place Gray in a seat belt because the man was resisting arrest to such an extent that it posed a danger to them.
"There are times when it's impossible to seat belt, the evidence will show this was one of those times," Zayon said.
The department's longstanding seat belt policy, which gave officers discretion as to when to belt prisoners in their custody, was updated just days before Gray's arrest to remove the discretionary language from the general order. Still though, Zayon said, "there is always discretion for officer safety," adding that at the time Nero was unaware of the policy update.