Ex-Officer's Trial Hangs On What Jury Hears
Judge Excludes Washington's Past

By Ruben Castaneda
Washington Post Staff Writer
Monday, February 11, 2008

When a jury sits down this week to consider the murder case against Keith A. Washington, there are certain things they may never learn about the Prince George's County homeland security official accused of shooting two unarmed furniture delivery men.

Evidence about a psychiatrist's report in 1995 that said Washington, then a police officer, had "fleeting homicidal and suicidal thoughts" and "fits of internal rage" will not be admitted, a judge has ruled. Allegations that Washington used excessive force during his more than 16 years as an officer, including two incidents that led two lawsuits, will probably not be mentioned, except to rebut other evidence, legal experts said.

But the jury will hear that Robert White, the surviving deliveryman and chief witness against Washington, has a criminal record that includes first-degree burglary, grand larceny and receiving stolen goods, Circuit Judge Michael P. Whalen has decided.

The rules of evidence, which weigh relevance against possible prejudice, could complicate what legal experts say is already a difficult task for prosecutors: Trying to convict a law enforcement officer who says he fired in self-defense in his own home.

"It does complicate matters for the state's case in chief," the portion of the trial when the prosecution presents its evidence, said Abraham Dash, a criminal law professor at the University of Maryland School of Law and former federal prosecutor.

"But the defense has to be very careful, too," he said. "I don't see how the defense can avoid putting Washington on the stand. That can open a lot of problems."

As jury selection begins today, Washington's attorneys say they are confident that testimony will support his version of the Jan. 24, 2007, shootings.

"We expect the evidence to show that Mr. Washington defended himself and his family while under attack in his home and that the story being told by the other side simply isn't true," defense attorney Michael Starr said in an interview. "We ask that everyone keep an open mind until Mr. Washington's side of the story has been presented in court."

State's Attorney Glenn F. Ivey (D) declined to comment on the trial or the evidence the prosecution will present. Court papers do not say what forensic evidence the state has collected or what prosecutors believe it shows.

Washington, 46, is charged with second-degree murder, attempted second-degree murder and other crimes in connection with the shootings at his home in Accokeek.

White, 37, has told police that Washington was combative almost from the moment the movers arrived at his home, and that Washington fired without provocation after ordering the men to leave. White's co-worker, Brandon Clark, 22, died nine days later.

Washington, who retired from the police department as a corporal several months ago, has told reporters he fired only after the workers entered his 6-year-old daughter's bedroom and attacked him when he ordered them to leave.

In one pretrial ruling, Whalen held that the defense could introduce evidence of three of White's criminal convictions for offenses that occurred in the mid-1990s. Whalen, however, excluded evidence of two other convictions from the same period -- pointing a firearm and assault and battery -- after finding that they were not relevant to White's credibility.

Whalen ruled that the defense could question White about his burglary conviction because it was relevant to his credibility because it involves "acts of a covert and deceitful nature."

Under state law, defense attorneys are generally entitled to introduce into evidence previous convictions only if the trial judge decides that the convictions relate to the credibility of the witness, Dash and veteran defense attorneys said.

Washington's attorneys, Starr and Vincent H. Cohen Jr., are expected to assail White's credibility, since he will be the prosecution's key witness.

Washington, who was a driver for Jack B. Johnson (D) in 2002 during Johnson's successful campaign for county executive and who was later appointed the county's deputy director of homeland security, has no criminal convictions. He has another trial pending on charges that he brandished a gun at a real estate appraiser who said he had knocked on Washington's door by mistake.

But that cannot be brought up at trial, nor can previous incidents in which he reportedly has lost his temper. These include four instances in which he came under investigation by the Prince George's police department for allegations of assault or "unbecoming conduct." Each allegation was deemed unfounded.

In two of the cases, he was sued. Once, a D.C. police officer said Washington assaulted him and had him falsely arrested. That case was dismissed after the plaintiff was fatally shot in 1997 during a traffic dispute. The plaintiff in the other lawsuit was awarded $260,000, but the verdict was overturned on appeal.

Such incidents are inadmissible in court unless they can be tied directly to the charge at hand, legal experts said.

Or unless Washington's attorneys, or his own words, create an opening.

"The defense has to be very careful not to go too much into [Washington's] personality," Dash said. "If they try to make him into a very good character, then they open the door. For example, if Washington were to testify that he has always been calm and never lost his temper, that could allow prosecutors to question him about previous incidents where he became angry."

In general, Dash said, it is difficult to persuade a jury to convict a police officer of a crime committed while the officer is carrying out his duties, legal experts said.

But the circumstances in this case -- the shootings occurred at Washington's home, during a furniture delivery -- might mitigate the deference that jurors often give to officers. "I don't know how much weight they will give to him being a police officer," Dash said. "I think they'll go with the facts."

Washington has been granted a medical disability retirement from the police department, The Washington Post reported in September.

Judge Whalen rejected a prosecution request for access to Washington's psychiatric records from the mid-1990s. Washington was placed on restricted duty for more than a year in the mid-1990s when doctors and department officials concluded that his inability to handle the stress of regular police work made him a potential danger.

"The state has not shown a relationship between the charges, the information sought, and the likelihood that relevant information will be obtained as a result of reviewing the defendant's psychological records," Whalen wrote in his ruling.