A Fairfax County police officer accused of using excessive force, including deploying a Taser, against a Black man has asked a judge to dismiss the case, claiming prosecutors have not disclosed evidence that would bolster his defense.
The attorney also wrote that the issue is part of what he contends is a broader pattern with the office of Fairfax County Commonwealth’s Attorney Steve Descano not revealing potentially exculpatory evidence in the case and misrepresenting what material it has collected.
“The Commonwealth has repeatedly dragged its feet and has deprived Officer Timberlake of his due process and right to a fair trial,” Timberlake’s attorney wrote in the motion.
Descano’s office panned the claims. In a court filing, prosecutors said the office has complied with a judge’s order governing evidence, pointing out that it requires such materials only be produced no later than 60 days before the trial. The trial is scheduled for September 2022, but Timberlake is hoping to move it up to this August.
Descano’s office also wrote in its response to the motion that it has provided substantial discovery already, including two police reports, crime scene photos, hospital records and Timberlake’s disciplinary records. They say Timberlake’s motion is a ploy.
“These accusations are aimed at distracting from the fact that the defense is the party seeking to ignore the court’s timeline,” Descano’s spokesman, Benjamin Shnider, said in a statement. “Descano holds his team to the highest possible standard with regards to transparency and will continue to fight any effort to prevent a jury of Fairfax County community members from hearing this case.”
The defense claims come after a judge criticized Descano’s office and Fairfax County police for waiting months to hand over exculpatory evidence in a first-degree murder case against an 18-year-old late last year.
They are also notable because Descano won election in 2019 promising to offer defendants greater transparency about the evidence against them, saying it would make the justice system fairer and decrease the chances of wrongful convictions.
“Virginia’s rules force defendants to try to craft a defense without most of the information one would need to do so,” Descano wrote in his election platform.
Timberlake, who is White, is facing three counts of misdemeanor assault and battery for allegedly deploying a Taser and punching a Black man seconds after arriving on the scene of a call in the Mount Vernon area in June 2020.
La Monta Gladney, who did not appear to pose a threat, can be heard and seen mumbling incoherently and pacing in circles in a body-camera video of the incident that was later released by police. Paramedics and another Fairfax County police officer were attempting to coax Gladney into an ambulance before Timberlake pulled up in his cruiser.
Descano and then-Fairfax County Police Chief Edwin C. Roessler Jr. quickly condemned the use of force, and Descano’s office filed charges against Timberlake.
Timberlake plans to argue at trial that he mistook Gladney for another man, who has a history of fighting with police, was a PCP user, was known to carry weapons and had outstanding warrants for his arrest, according to the motion to dismiss.
In addition, Timberlake argues that Gladney ignored his commands and actively resisted arrest, a contention prosecutors and an attorney representing Gladney in a civil case said is not evident on the body-camera video.
Timberlake’s attorney wrote that his ability to mount a defense has been frustrated by his lack of access to the case against his client. Before the current motion, the attorney had filed two others seeking evidence that he felt Descano’s office should have disclosed.
In the new motion, the attorney wrote that Descano’s office has had a report by the lead detective in the case for months but only represented that it had two others that were produced by Fairfax County police.
He also wrote that Descano’s office represented in court that it had no statements from Gladney, but the attorney later learned prosecutors had a video of Gladney giving an interview to an amateur journalist about his encounter with Timberlake. The defense believes the video could be used to challenge Gladney’s testimony at trial.
The defense said they have also learned prosecutors have a video of the incident taken by a bystander that was posted to Snapchat. They also want a 911 call they say was made by Gladney which they contend suggests he was on PCP at the time of the encounter.
Descano’s office wrote that whether it has such evidence, Timberlake’s attorney is ignoring the basic fact that the judge has set a deadline for the material to be turned over more than a year from now. The motion accused Timberlake’s attorney of repeatedly attempting to “manufacture” violations of the order to get the case dismissed.
One unusual aspect of the motion is the defense claim that they learned from an “outside source” that prosecutors had evidence they had not disclosed. The defense did not reveal the source in its filing, or say if that person was a county employee, and the attorney, Brandon Shapiro, did not respond to requests for comment.
Under the 1963 Supreme Court decision Brady v. Maryland, prosecutors are required to turn over any evidence that might help exonerate a defendant. Timberlake’s attorney wrote in his filing that he thinks Descano is not living up to his campaign promise. A judge is set to hold a hearing on the motion Friday.