On Monday Judge Barry G. Williams acquitted Baltimore police officer Edward M. Nero of all charges stemming from the arrest, transport and death of Freddie Gray.  While this is good news for those who regard the prosecution of police officers in the Gray matter little more than mob justice, Williams’s verdict as declared from the bench was on narrow legal grounds.  In acquitting the officer, Williams (who has consistently tried to help out the prosecution) also did Baltimore’s State’s Attorney Marilyn Mosby a huge favor by not throwing out her unprecedented and dangerous theory of the case.  That theory, which second guesses and criminalizes police judgment on the street, can still be used against Nero’s colleague Officer Garrett Miller, and following that Lieutenant Brian Rice, who were also involved in the detention of Gray.

Williams could hardly do anything but acquit Nero given the extraordinary dearth of evidence that the officer did anything remotely unreasonable, or anything to harm Gray.  In fact, Nero’s role in the arrest was according to fellow officers and independent witnesses marginal at best.   Miller, forced to testify by Williams under a grant of limited immunity, declared that he and not Nero detained Gray before they both helped load him into a police van. Thereafter, neither buckled-in Gray, since a new policy that made this mandatory came out just a few days before, had not been disseminated, and the responsibility for buckling in passengers was on the van driver.  Accordingly, Williams ruled that there were “no credible facts” that Nero was directly involved in the arrest.

On this scanty evidence Williams ruled that the prosecution did not meet its burden of proof beyond a reasonable doubt on any count.  But of course this is the standard in any criminal case.  What Williams left in place was the prosecution’s principal theory of the case against Nero -- that he was criminally liable for an alleged error in judgment in making a so-called Terry stop.  Terry stops are the common police practice of briefly detaining a suspect on grounds of reasonable suspicion.  Running from police in a high crime area, as Gray did, is well established as sufficient grounds for such a stop.  Nonetheless, the prosecution argued that in stopping Gray police erred and that therefore detaining him and touching him were not only mistakes in judgment (normally handled if true by releasing the suspect, administrative action and potential civil liability) but criminal assaults on his person.

During closing arguments Williams questioned the prosecution about their theory, but a few days later, in explaining his verdict Williams didn’t reach this issue because he did not have to.  Nero’s involvement in the stop itself was minimal.   Williams avoided the issue and by doing so has effectively granted the prosecution another shot at making the case against Miller and/or Rice who were also involved in the stop. 

Williams has presided over both police trials brought up to this point in the Gray matter, with five more to go.  Those are the retrial of Officer William Porter (a jury trial before Williams resulted in a mistrial) and four other officers yet to be tried, among them Miller and Rice.  Van driver Officer Caesar Goodson is scheduled to go next and faces the most serious charges.  Oddly, it seems that Williams is scheduled to preside over all the trials, though it is hard to see how he can continue if Miller or Rice also demand a bench trial.  Like Nero it’s probable that neither will wish to take their chances with a jury in the racially polarized city (Miller and Rice are also white.)   Having been the trier of fact in Nero’s case, it is hard to see how Williams could sit in judgment of Miller, (who testified under the immunity grant) or Rice who initiated and supervised the stop. 

By refusing to rule on the legal validity of the prosecution’s theory in Nero’s trial Williams preserved the issue to reconsider should he try Miller and Rice, or for other judges to consider should he not, without establishing a precedent that they would be obliged to follow.  He also imposed a gag order preventing defense attorneys from arguing publicly as to the injustice of these trials continuing.   Williams has leaned the prosecution’s way throughout the case, and despite acquitting Nero, has done it again.  In effect, the prosecutors now get to reshuffle the deck and try again with both Miller and Rice.  Chances are that eventually the cards play in a way the will give them, and their boss Ms. Mosby, a sacrificial police victim for the mob.