Md. prosecutors request appeal, hoping to use video of a victim’s blink in murder trial

Maryland prosecutors want another chance to include video of a victim’s blink in an upcoming murder trial.

Officials with the Prince George’s County State’s Attorney’s Office said Tuesday they will request an appeal to overturn a judge’s recent decision barring video of a paralyzed man identifying his shooter by blinking his eyes two years before he died.

Last week a Maryland judge ruled it would be unconstitutional to include the video in the murder trial of 23-year-old Jermaine Hailes, accused of fatally shooting Melvin Pate during an armed robbery in 2010. Judge Leo E. Green Jr. said including the video would not allow Hailes to confront his accuser, as guaranteed in the Sixth Amendment.

But the State’s Attorney’s Office says the video should be allowed because it represents a dying declaration.

“The state argued that a dying declaration is exempt from the confrontation clause in the 6th amendment that gives the accused the right to confront his accuser and cross examine him at trial,” according to a news release from Prince George’s County State’s Attorney Angela Alsobrooks’s office. “The state contends that a dying declaration was in existence prior to the creation of the 6th amendment and has always been exempt from the confrontation clause.”

If the Maryland Attorney General’s Office approves fighting Green’s decision, the case would go to the Maryland Court of Special Appeals for a ruling.

The legal issues in the case are unusual. If the video were approved, it would be the fourth time in U.S. history that a blink testimony from a now-deceased man would be allowed in a murder trial. Other recent cases in Florida and Ohio — which resulted in convictions — are currently being appealed.

In issuing his decision, Green addressed four major legal questions.

*Was Pate a competent witness when he was identifying his shooter? The judge decided Pate was competent. Pate was shot in the face and paralyzed, with blinking as his only form of communication in his first days in the hospital. It was clear in the video that Pate’s blinking was a reliable form of communication, and Pate understood questions nurses and investigators were asking him in the hospital room, the judge ruled.

*Was the photo lineup set up in a way that would have unduly influenced Pate? During the hearing, Hailes’s lawyer suggested the lineup police showed Pate may have been suggestive. Green said, however, that while the circumstances were un­or­tho­dox as the photos flashed before Pate in his hospital bed, the photo array featured men who all had similar hairstyles and facial features to Hailes.

*Should Pate’s statements be considered a “dying declaration”? This question is complicated. Typically, statements made outside of court are barred as evidence or testimony because they’re considered hearsay. But dying declarations — given when someone believes death is imminent — are exempt. Green decided that Pate’s statements were dying declarations. Even though Pate didn’t die until two years after he gave the testimony, Pate was told he had about 24 hours to live when he blinked at Hailes’s picture during the photo line up.

*Does the video count as testimony, violating Hailes’s Sixth Amendment right to cross examine his accuser? This is where Green decides the video should be tossed. Hailes’s defense team can’t question Pate’s statements or cross examine Pate as a witness if his testimony is included in the trial, Green ruled. The State’s Attorney’s Office says this should not be a factor any more because the video has been ruled a “dying declaration.”

State prosecutors have requested Hailes’s murder trial, set for Dec. 11, be postponed as they seek the appeal.

Lynh Bui is a Prince George's County public safety reporter and former Montgomery County education reporter.

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