LI: "Freddie Gray: Officer Nero trial starts May 11 on novel prosecution legal theory"

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From my post over at Legal Insurrection:

The second of the Freddie Gray trials is scheduled to being this Wednesday, May 11, this time of Police Officer Edward Nero, one of the three officers involved in Freddie Gray’s initial stop and arrest. Nero was charged with second-degree assault, two counts of misconduct in office, and reckless endangerment.

Nero is being tried on charges of second-degree assault, two counts of misconduct in office and reckless endangerment.

All the parties involved remain under a gag order imposed by trial Judge Barry Williams (transparency, much?). Nevertheless, news reports are indicating that the prosecution has essentially conceded that they’re simply making up the legal theory under which they are bringing Nero’s prosecution.

The Baltimore Sun uses the phrase “novel legal theory” to describe the State Attorney Marilyn Mosby’s prosecution of Nero, which is simply a more polite way of saying “they’re making up the law as they go along.”

The actual law in question is well-established, and applied in the same manner at all levels of law enforcement in the United States: when an officer has a good faith belief there there exists probable cause for an arrest, he is not subject to criminal prosecution if it is later determined by prosecutors or courts that probable cause was, in fact, lacking.

Indeed, it is routine for arrests made in good faith to later be determined, after deliberate examination, to lack probable cause. Back in the days when the Baltimore PD still made arrests in meaningful numbers as many as one-third of these arrests were routinely dismissed afterwards for lack of probable cause.

This is not surprising. After all, police officers are not professionally trained in the law to the degree that prosectors and trial judges are so trained, nor do they have an open-ended time frame in which to make a probable cause determination.

In such cases where probable cause is later found to be lacking the criminal charges are dismissed, and the arresting officer might theoretically be subject to departmental discipline (although in my experience this is rare, absent egregious misconduct or stupidity in making the arrest).

There is no American jurisdiction, however, in which an officer who in good faith made an arrest later found to lack probable cause is subject to criminal prosecution. Given that in recent Baltimore history as many as one-third of police arrests were dismissed for lack of probable cause, this theory would mean that a huge proportion of the department was subject to criminal prosecution.

There's plenty more where that came from. Click here to read the whole thing at Legal Insurrection.