A Prince George’s County jury will not be allowed to see video that prosecutors say showed a slain man identifying his shooter by blinking his eyes before his death, a judge decided Thursday.
In a written decision, Judge Leo E. Green Jr. barred the evidence from a trial set for December, ruling that showing the video to jurors would have violated the defendant’s Sixth Amendment right to face his accuser.
Had the blink testimony been allowed, it would have been the first time such evidence appeared in a Maryland murder case and the fourth time in the United States.
Green spent two weeks deciding whether video of Melvin Nathaniel Pate blinking at a photo lineup should be included in Jermaine Hailes’s murder trial. Pate, 29, died in 2012, two years after the video was recorded.
The crux of the debate lies in whether the video would have violated Hailes’s constitutional right to confront his accuser. “The inability of Hailes’s defense team to explore Pate’s viewing and recollection of the shooting runs afoul of Hailes’s Sixth Amendment right of confrontation,” Green wrote in his ruling.
Prosecutors will spend the evening reviewing the judge’s 33-page decision before offering a detailed comment, said John Erzen, a spokesman for the Prince George’s County Office of the State’s Attorney.
“We are disappointed in the court’s ruling, but we feel that the remaining evidence will still allow us to present a strong case and we look forward to proceeding to trial on December ninth,” Erzen said in an e-mail statement.
Hailes’s attorney, Robert Moskov, did not immediately return calls Thursday night.
The case presented highly unusual legal questions for the judge and the attorneys. During a hearing two weeks ago, prosecutors argued that the video should be considered a “dying declaration,” one of the unique circumstances under which such material could be allowed at a trial. But Pate died two years after the video was made, complicating whether his blink was really a “dying” declaration.
According to police, Pate was shot during a drug sale gone bad in November 2010. He had planned to sell a half-pound of marijuana to people who ended up robbing him instead. A bullet fired during the robbery hit him in the face and lodged at the top of his spine, leaving Pate paralyzed from the neck down.
The video in question shows police detectives flashing six photos to Pate days after he was shot. He is asked to “blink hard” to indicate which of the photos resembles the person who shot him. Pate blinks at Hailes’s picture.
There was dispute over whether Pate’s blinking was a legitimate form of communication. During the hearing, Hailes’s attorney argued that the blinking could be confused with Pate’s natural impulse to keep his eyes moist. The prosecutor insisted that Pate was deliberately blinking during the lineup with police.
The judge found that Pate was competent when he gave statements to the police, that blinking was an acceptable form of communication and that the blink could be considered a “dying declaration.”
But in the end, Green ruled, Pate’s video should be considered court testimony that would have to be reviewed critically and questioned. Because Pate is dead, there is no way to scrutinize the reliability of the statement he gave to police when he blinked.
“The only way that we can assure that Pate’s identification of Hailes was accurate is through examination and most importantly cross-examination,” Green wrote. “The video tape depicting Pate’s identification is less than 2 minutes and consists of Pate viewing 6 photos. The court has nothing more.”