Unable to talk or communicate otherwise, Pate blinked. That is how he identified Jermaine Hailes, 23, as the man who allegedly shot him in November 2010. Two years later, Pate, 29, died of complications from the gunshot wound.
Now, a Prince George’s judge is to decide whether Pate’s blinks, recorded on video, can be used as evidence at Hailes’s murder trial, set for next month. If Judge Leo E. Green Jr. allows the video, it would be just the fourth time in U.S. history that a deceased victims’ nonverbal identification — in the form of blinking — would be admitted as evidence in a murder case, Maryland prosecutors say.
State prosecutors and Hailes’s attorney argued Friday over whether Pate’s communication in the video is credible and reliable enough for a jury’s consideration. After hours of debate and witness testimony, Green said that because of the case’s “extraordinary circumstances,” he would deliberate for two weeks before issuing a decision.
“This is off the beaten path,” the judge said.
The video aired at Friday’s hearing shows investigators asking Pate to “blink hard once for ‘yes,’ ” as they showed him six photos. After flashing each picture, a detective asked, “Is this the person who shot you?” She asked the same question two more times. When Pate saw the third photo — a picture of Hailes — he blinked.
Robert Moskov, Hailes’s attorney, argued that Pate’s blink could have been a natural movement to keep his eyes from drying out. Moskov also questioned whether Pate was competent during his interview with investigators.
“We don’t know what he is blinking at or why he is blinking,” Moskov said.
Prince George’s County Assistant State’s Attorney Christine Murphy countered that the video clearly shows which blinks are intentional responses and which are natural.
“This was a deliberate closing of his eyes, then opening of his eyes,” Murphy said.
The use of Pate’s hospital interview is further complicated by whether it should be legally considered a “dying declaration.” In most cases, statements made outside of court to another person are barred because they are considered hearsay and unreliable. But dying declarations are often exempt because there is a presumption that people on their deathbeds are more compelled to tell the truth.
Pate, however, didn’t die right after he gave his blinking testimony to detectives. He was in and out of the hospital before dying in 2012.
Moskov argued that the information detectives collected from Pate was “simply evidence gathering” on the part of police and should be considered hearsay. He also said police may have unduly influenced Pate’s answers by the way they interviewed him.
Pate’s mother testified that her son believed he was going to die in the days after he was shot, which is what doctors had told her.
“Tears came out of his eyes,” Felicia Pate of her son’s reaction to the news.
Investigators believe that Pate was shot after a drug sale gone bad, according to court documents. Pate had agreed to sell a half-pound of marijuana, but the buyers tried to rob him instead. At least one gun was drawn, and shots were fired. A bullet went through Pate’s cheek, lodging at the top of his spine.
While legal experts say it is extremely rare for lawyers to rely on someone who has since died for evidence, it is not unheard of. Similar cases have been recorded in Ohio, Florida and Indiana.
In June, an Ohio man was sentenced for the murder of David Chandler. In October 2010, Chandler was shot in the face and neck while in his car, leaving him paralyzed from the neck down. As Chandler lay dying, strapped to a ventilator in the hospital, he blinked three times to indicate that Ricardo Woods shot him. Woods is appealing the case.
In 2009, a Florida jury convicted a man of first-degree murder. Marc Thibault was shot in the neck during an armed robbery in front of his home. When police interviewed Thibault at the hospital, they asked him to blink once for “no” and twice for “yes” after seeing a picture of Leotis Lester Jr. Thibault blinked twice. Lester was sentenced to life in prison.
And in Indiana, a jury convicted Luis Briones
for the 2009 murder of Delvon Davidson, who identified Briones as his shooter after Davidson learned that he was going to die. A videotaped police interview of Davidson blinking, moving his head and mouthing words was included in the case.
Georgetown Law professor Paul Rothstein said trials in which gestures and other forms of nonverbal communication are admitted are uncommon. The communication can be a grunt, a nod, a raised finger — or in Pate’s case — a blink.
Generally at issue is whether a judge thinks the communication is reliable or whether there could be some other explanation for certain gestures and movements. Was the witness mentally competent at the time an identification was made? Did the witness understand the questions? Was the interview conducted in a controlled environment so that the gestures provided were clear answers to questions?
Basically, “can the jury interpret something as meaningful when it isn’t?” Rothstein said.
Rothstein said there’s a reason such use of evidence is rare.
“It is not real frequent because the prosectors try to offer more meaningful evidence that can’t be challenged,” Rothstein said.
Murphy, however, said the state is confident in the strength of its case against Hailes aside from the video.
“We have three co-defendants identifying Mr. Hailes as the shooter,” Murphy said.
The other men charged in Pate’s killing are Ramel Douglass Sanders, Ciree Antonio Petty and Mark Anderson. Sanders, Petty and Anderson, all 23, have struck plea deals with the county state’s attorney’s office and agreed to testify against Hailes.
After Friday’s hearing, Pate’s mother insisted that her son had been alert and competent. She said they had communicated through his blinks.
“There was nothing wrong with his brain,” Felicia Pate said. “He understood everything.”
Jennifer Jenkins contributed to this report.