“I have a great deal of concern regarding the reliability of and appearance of the misrepresentation of statements made by the Commonwealth to a circuit court judge as it relates to exculpatory evidence,” Kassabian said.
Kassabian said it was even “more disturbing” that the Office of Commonwealth’s Attorney Steve Descano had not turned over evidence that might help the defendant at a trial scheduled for the fall of 2022.
Timberlake’s attorney Brandon Shapiro filed a motion to dismiss the case earlier this month, saying he had learned prosecutors had not turned over a lengthy report by the lead detective, a 911 call, bystander video of the incident and an interview with the victim posted on YouTube.
The lead detective, Fairfax County police Lt. Ryan Lazisky, testified at the hearing Friday that he had given all of that evidence to prosecutors months ago.
Shapiro said in court that prosecutors had disclosed the existence of two police reports — but not Lazisky’s — and told the defense they had no statements from the victim despite having the YouTube interview. He said there were other misleading statements, too.
“Each misrepresentation, you lose faith in the system,” Shapiro told Kassabian. “There have been so many misrepresentations in this case the fundamental fairness goes out the window.”
Fairfax County Senior Assistant Commonwealth’s Attorney Dennis Somech argued prosecutors had so far met their obligations to turn over evidence, saying they were only required to disclose the material no later than 60 days before a trial more than a year away. He pointed out they had disclosed a lot of evidence already.
Somech also accused Shapiro of trying to invent issues to get the case dismissed.
“They are artfully creating the look of problems that don’t exist,” Somech said in court.
Timberlake is accused of three misdemeanor counts for using a Taser and punching a disoriented Black man seconds after arriving on the scene of a call in the Mount Vernon area in June 2020. Video of the incident captured by body camera and later released by police did not show any apparent provocation by the man, La Monta Gladney.
Timberlake’s attorney has indicated the officer plans to argue at trial that he mistook Gladney for another man, who had been violent with police, was a PCP user and was known to carry weapons. He also argues Gladney did not comply with his commands and resisted arrest, something prosecutors and Gladney’s attorney say is not evident on the video.
Descano’s office was previously rebuked by another judge for failing to turn over exculpatory evidence in a first-degree murder case to an 18-year-old defendant. That critique and Kassabian’s are notable because Descano was elected in 2019 on a platform of bringing greater transparency to prosecutions.