Joseph Walker, Motion to Dismiss

STATE OF MARYLAND * IN THE *

* CIRCUIT COURT *

* OF MARYLAND v. * * FOR ANNE ARUNDEL COUNTY * * Case Number: 02K13001392 JOSEPH LAMONT WALKER * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

MOTION TO DISMISS THE INDICTMENT BECAUSE IT WAS OBTAINED BY PROSECUTORIAL MISCONDUCT

Detective Joseph Lamont Walker (“Det. Walker”), by and through his attorneys,

moves this Honorable Court for a dismissal of the Indictment and as grounds therefore

states as follows:

The prosecutor committed misconduct by: 1) knowingly presenting materially

false testimony to the Grand Jury thereby impairing its integrity and prejudicing Det.

Walker; 2) repeatedly characterizing the decedent as the “victim,” thereby invading the

province of the Grand Jury whose role it was to make that very determination; and 3)

intentionally concealing from, and failing to present to, the Grand Jury significant

material facts relevant to its inquiry. These material facts include, but are not limited to,

Det. Walker’s statement to law enforcement that he had feared for his life and the lives of

his family; the decedent and his co-actor had been drinking heavily for several hours

prior to their confrontation with Det. Walker’s family, a confrontation the decedent

initiated both by his threatening words and his aggressive actions; and Det. Walker’s wife

called 911 for emergency assistance prior to the shooting. Due to the irreparable

prejudice to Det. Walker, the appropriate remedy is dismissal of the Indictment.

A Memorandum in Support of this Motion to Dismiss the Indictment is filed

herewith and expressly incorporated herein.

WHEREFORE, Det. Joseph Lamont Walker respectfully requests that this

Honorable Court:

1) Dismiss the Indictment; or, in the alternative,

2) Grant such further relief as justice and the nature of this cause require.

Respectfully submitted, ______________________

Charles N. Curlett, Jr. Steven H. Levin LEVIN & CURLETT LLC 201 N. Charles Street Suite 2000 Baltimore, Maryland 21201 410-685-4444 Michael T. Cornacchia 260 Madison Avenue 22nd Floor New York, New York 10016 646-278-4297 Pro Hac Vice Attorneys for Joseph Lamont Walker

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Certificate of Service

I HEREBY CERTIFY that on this ___ day of February, 2014, a copy of the foregoing Motion to Dismiss the Indictment Because It Was Obtained by Prosecutorial Misconduct and accompanying Memorandum in Support thereof were hand delivered to the Office of the State’s Attorney for Anne Arundel County. ______________________ Charles N. Curlett, Jr.

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25th

!STATE OF MARYLAND * IN THE *

* CIRCUIT COURT *

* OF MARYLAND v. * * FOR ANNE ARUNDEL COUNTY * * Case Number: 02K13001392 JOSEPH LAMONT WALKER * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS THE INDICTMENT

BECAUSE IT WAS OBTAINED BY PROSECUTORIAL MISCONDUCT Charles N. Curlett, Jr. Steven H. Levin LEVIN & CURLETT LLC 201 N. Charles Street Suite 2000 Baltimore, Maryland 21201 410-685-4444 Michael T. Cornacchia 260 Madison Avenue 22nd Floor New York, New York 10016 646-278-4297 Pro Hac Vice Attorneys for Joseph Lamont Walker

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TABLE OF CONTENTS

TABLE OF AUTHORITIES………………………………………………………. 3 EXHIBITS…………………………………………………………………………..5 FACTS……………………………………………………………………………... 6 THE GRAND JURY PRESENTATION…………………………………………... 11 LEGAL ARGUMENT……………………………………………………………... 21 I. This Honorable Court Should Dismiss The Indictment Which Was Obtained As A Result Of Prosecutorial Misconduct Before The

Grand Jury…...................................................................................... 21 A. The prosecutor and the trooper presented materially false information to the Grand Jury………………………... 21 II. The Prosecution Invaded The Province Of The Grand Jury And Thereby Violated Detective Walker’s Fifth Amendment Rights….. 24 III. This Honorable Court Has The Inherent Supervisory Power To Dismiss The Indictment……………………………………………. 27 CONCLUSION…………………………………………………………………...... 30

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TABLE OF AUTHORITIES

CASES Whitehouse v. United States District Court for the District of Rhode Island, 53 F.3d 1349, 1356 (1st Cir. 1995)……………………………….…………………21 United States v. Strouse, 286 F.3d 767 (5th Cir. 2002)……………………………...21 Bank of Nova Scotia v. United States, 487 U.S. 250 (1988) ………………………. 21, 27 United States v. Basurto, 497 F.2d 781 (9th Cir. 1974)……………………………..22-23, 29 Baltimore Belt R.R. v. Baltzell, 75 Md. 94, 99, 23 A. 74 (1891)…………………... 22 Dept. of Transportation v. Armacost, 299 Md. 392, 474 A.2d 191 (1984)………... 22 Pitsenberger v. Pitsenberger, 287 Md. 20, 410 A.2d 1052 (1980) ……….............. 22 Barry Properties v. Fick Bros., 277 Md. 15, 22, 353 A.2d 222 (1976)…………….22 Bureau of Mines v. George's Creek, 272 Md. 143, 321 A.2d 748 (1974) …………22 Clark v. State, 364 Md. 611, 644, 774 A.2d 1136, 1155 (2001). …………………. 22 United States v. Samango, 607 F.2d 877, 882 (8th Cir. 1979)……………………... 23 Communist Party v. Subversive Activities Control Board, 351 U.S. 115, 76 S.Ct. 663 (1956)………………………………………………………………… 23 Stirone v. United States, 361 U.S. 212, 80 S. Ct. 270, 4 L. Ed2d. 252 (1960)…….. 25 U. S. v. Field, 875 F.2d 130, 133 (1989)..………………………………………….. 25 U.S. ex. rel. Toth v. Quarles, 350 U.S. 11, 76 S. Ct. 1,100 L. Ed. 8 (1955)……….. 25 Cook v. Singer Sewing Mach. Co., 138 Cal.App. 418, 32 P.2d 430……………….. 26 Sheldon v. United States, 53 F.3d 1349, 1356 (1st Cir. 1995)……………………… 27! United States v. Williams, 504 U.S. 36 (1992)…………………………………….. 27 State v. Deleon, 143 Md.App. 645, 795 A.2d 776, (2002)………………………… 27 United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983)…... 28

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United States v. Brockington, 849 F.2d 872 (4th Cir.1988)……………………….. 28 United States v. Kojayan, 8 F.3d 1315 (9th Cir. 1993)……………………………... 28 United States v. Bernal-Obeso, 989 F.2d 331 (9th Cir. 1993)………………………29 United States v. Santana, 6 F.3d 1, 10 (1st Cir. 1993)………………………………29 United States v. Gallo, 394 F. Supp. 310, 315 (D.Conn. 1975)…………………….29 United States v. Guillette, 547 F.2d 743 (2d Cir. 1976)…………………………….29 United States v. Udziela, 671 F.2d 995 (7th Cir. 1982)……………..……………… 29 CONSTITUTIONAL PROVISIONS U. S. Constitution, Fifth Amendment ………………………………………………22, 24, 26 U. S. Constitution, Fourteenth Amendment………………………………………...22 Maryland Declaration of Rights, Article 24………………………………………...22 OTHER AUTHORITIES ABA Criminal Justice Section Standards, Prosecution Function…………………...25 Maryland Rules of Professional Conduct…………………………………………...26 Black’s Law Dictionary……………………………………………………………..26 Serving on a Maryland Grand Jury, Maryland Judiciary, Jury Use and Management Committee……………………………………………...30!!

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EXHIBITS

Exhibit A Transcript of Statement of Adam Pidel Exhibit B Transcript of Statement of W.P. Exhibit C Transcript of Adam Pidel’s 911 Call Exhibit D Transcript of Elaine Walker’s 911 Call Exhibit E Maryland State Police Supplemental Report Exhibit F Maryland State Police Diagram of Scene Exhibit G Transcript of Statement of J.M. and W.M. Exhibit H Transcript of Statement of R.W. Exhibit I Transcript of Statement of M.W. Exhibit J Transcript of Statement of F.M. Exhibit K Autopsy Report Excerpt Exhibit L Transcript of the Grand Jury Proceeding

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FACTS1

On the evening of June 9, 2013, Detective Joseph Walker (“Det. Walker”), a

Detective with the Office of the Prosecutor for Hudson County, New Jersey, was returning

to his home in New Jersey from Odenton, Maryland. He was driving in his family minivan

with his wife and three young children, then ages 3, 7 and 11. While making a left hand turn

to enter onto a highway, the driver of another vehicle, Joseph Harvey (“Harvey”), allegedly

perceived that Det. Walker had cut him off. (Exh. A at 17). In response, Harvey, who was

white, pulled up alongside the passenger side of the minivan where Det. Walker’s wife was

sitting in the front right passenger seat. (Exh. A at 18). Harvey shouted obscenities, racial

epithets and physical threats at Det. Walker and his family, all of whom are African-

American. (Exh. A at 34).

Eventually, Det. Walker pulled off the road in an effort to let Harvey drive away

and abruptly came to rest on the shoulder. (Exh. B at 12; Exh. E at 4). Harvey also pulled

over, stopping 164 feet ahead of the Walkers’ minivan. (Exh. F). Harvey was accompanied

by a friend, Adam Pidel (“Pidel”), who was riding in the front passenger seat of Harvey’s

car. (Exh. A at 17-18). Once stopped, Harvey and Pidel, who had both been drinking for

several hours at a local restaurant and were en route to a local bar, stepped out of Harvey’s

vehicle and quickly advanced on the Walkers’ minivan. (Exh. A at 8-9, 34; Exh. B at 5, 6,

12). Det. Walker stepped out of his minivan and remained by his family as the men charged

him, traversing nearly the entire distance between the vehicles. (Exh. B at 14). Det. Walker

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!1!The material facts set forth in this Memorandum are based upon the discovery provided by the State. While the defense will contest certain facts at trial, the material facts are presented here as they were known or relied upon by the State at the time the case was presented to the Grand Jury, which knowledge provides the basis for the prosecutorial misconduct alleged in this motion.

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drew his service weapon. (Exh. A at 22). Det. Walker displayed his badge and identified

himself as a police officer, telling Harvey and Pidel to just “go away.” (Exh. E at 4). Pidel

told the 911 operator and later confirmed to the Maryland State Police that Harvey was

going to fight Det. Walker. (Exh. C at 8; Exh. A at 33, 52, 76). As this was occurring, Det.

Walker’s wife called 911 for help. (Exh. D at 1). When Harvey and Pidel continued

advancing towards him, Det. Walker discharged his weapon, striking Harvey, whose body

was found by the Maryland State Police no more than 6 feet from the Walkers’ minivan.

(Exh. F). Pidel was unharmed.

After local law enforcement officials arrived at the scene, Det. Walker gave a

statement to them in which he described Harvey’s actions, and his own reactions. (Exh. E).

Det. Walker also explained that immediately prior to shooting Harvey, he feared for his life

and the lives of his family. (Exh. E at 4). After the incident, but prior to the Indictment, the

Maryland State Police took over the investigation and interviewed Pidel and six other

individuals who had been passing by the scene in their automobiles and had reportedly

observed portions of the events on June 9, 2013.2

In his interview, Pidel said that it was clear that Harvey pulled his vehicle over on

the shoulder “to fight,” rhetorically asking, “Why else would he be doing that?” (Exh. A at

33, 77). Pidel admitted that Harvey was “angry” at Det. Walker. (Exh. A at 34). Harvey was

yelling “f--- you,” was “screaming” at him to “pull that mother f----- [the minivan] over,”

and calling him a “n-----.” (Exh. A at 34). Once Harvey stopped his car, Pidel said Harvey

exited the car and walked quickly toward the Walkers’ minivan while “throwing his hands

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!2!We refer to these witnesses by their initials and have redacted their names and identifying information from the transcripts to protect the witnesses’ identities. Pidel has already been identified in court filings and media reports. All interviews were recorded by the Maryland State Police and summarized in written reports.!

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up.” (Exh. A at 37). Pidel stated that Harvey and Det. Walker exchanged words but he could

not hear what they said. (Exh. A at 35). As Harvey and Pidel advanced toward the Walkers’

minivan, Pidel said he saw a gun in Det. Walker’s hand, pointed downward. (Exh. A at 41).

Pidel stopped advancing and reached for his phone. (Exh. A at 23). Pidel said he heard a

“pop” and Harvey remained standing. (Exh. A at 23). Pidel then heard more “pops” and

Harvey fell straight down. (Exh. A at 24). When asked if he could calculate the time

between seeing Det. Walker with the gun and the “pop,” Pidel said “seconds.” (Exh. A at

68). When asked if he could calculate the time that elapsed between the first “pop” and

other “pops” Pidel answered “some seconds – four or five seconds. I mean, I can’t --,” and

then conceded, “My mind was absolutely elsewhere at that point.” (Exh. A at 47). Pidel,

who had known Harvey for years, described him as a “big dude,” “rowdy,” and “definitely

the kind of guy that would finish a fight.” (Exh. A at 49). Pidel said that Harvey approached

the Walkers’ minivan “ready for a fight.” (Exh. A at 77).

One witness, W.P., described Harvey and Pidel as “aggressive” and Harvey as “the

provoker.” (Exh. B at 5, 11). W.P told the police that Harvey was “giving them [the

Walkers] the finger and all this other crap and telling them to pull over.” (Exh. B at 5).

Asked if Det. Walker responded in a similar manner, W.P. stated, “No. He was just

driving.” (Exh. B at 18). Once they exited their vehicle, W.P. described Harvey and Pidel as

appearing to be “on a mission, basically . . . ready to fight.” (Exh. B at 6). W.P. said that

Harvey had a “chance to go,” but he did not and was the “provoker.” (Exh. B at 11). W.P.

said that while Harvey and Pidel were “moving fast” toward the Walkers’ minivan, W.P.

described Det. Walker as standing by the minivan in an apparently calm manner which W.P.

characterized as Det. Walker “just wanting peace.” (Exh. B at 15). W.P. stated that Harvey

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and Pidel appeared to be “getting ready. . . to start a fight.” (Exh. B at 14, 15). W.P. heard a

“shot” but did not witness what occurred immediately prior to hearing the shot, or the

shooting itself.

Another witness, J.M., described Harvey “as a stocky, big guy.” (Exh. G at 8). J.M.

said it looked like “his [Harvey’s] hands were clenched and like in a pissed off manner [as

he] was heading towards [the Walkers] like he wanted to confront them.” (Exh. G at 8). J.M.

said that Harvey approached the Walker’s minivan “in an aggressive attitude . . . like he was

ready to rumble.” (Exh. G at 11-12). J.M. said that both Harvey and Pidel approached the

minivan together in a “faster-paced walk.” (Exh. G at 12). J.M. said that the last thing he

saw as he passed by the scene was Det. Walker reach into the minivan as Harvey and Pidel

approached. (Exh. G at 8). However, J.M. did not see if Det. Walker took anything out of

the van. (Exh. G at 8). J.M. did not see a gun or the shooting itself or what happened

immediately prior to the shooting.

J.M.’s wife, W.M., stated that she saw Det. Walker step out of his minivan, “cross his

arms, and do like a head nod kind of thing. And then we saw two gentlemen in the car in

front get out and start approaching the man at the minivan.” (Exh. G at 3, 6). W.M.

described Det. Walker as a “very large African American man . . . looked like he was bald,

very large, 6’5”, 6’6”, somewhere around there probably.” (Exh. G at 4-5).3 W.M. described

Harvey as having a “stocky, blown-up chest walk.” (Exh. G at 7). W.M. lost sight of the

scene when Harvey and Pidel were approximately halfway to the Walkers’ minivan. (Exh.

G at 7). W.M. did not see the shooting itself or the events immediately prior to the shooting.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!3!Det. Walker is actually 5 feet 11½ inches and weighs about 210 lbs.!!

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Still another witness, R.W., observed Harvey walking towards Det. Walker “probably

about 50 feet from the minivan. And he was walking in an aggressive manner, gesturing.”

(Exh. H at 3). R.W. stated that “when I see a guy approaching another guy, doing that kind

of body language, it wasn’t going to end good.” (Exh. H at 3). R.W. saw Det. Walker

“standing next to the minivan” as Harvey approached. (Exh. At 6). “He (Det. Walker)

wasn’t moving towards the guy,” as if Det. Walker was “waiting.” (Exh. H at 11). The last

thing R.W. observed was Harvey grabbing his right pant leg in a “strange” manner when

Harvey was about 50 feet from the minivan. (Exh. H at 4, 12).

M.W., R.W.’s wife, who was driving in a different car, stated that she observed

Harvey walking towards Det. Walker. (Exh. I at 3). M.W. stated that she “saw (Det. Walker)

raise his arms up in a position that you see on television or in a gun safety thing.” (Exh. I at

3). M.W. looked back at Harvey, “and he – he had stopped and brought his arms up to the

side. . .and then I heard the two shots fired, and I saw the man fall to the ground.” (Exh. I at

3). Asked how far apart Harvey and Det. Walker were when the shooting occurred, M.W.

stated, “About half the – maybe half the distance between how telephone poles would be. . .

maybe 40, 50 feet.” (Exh. I at 10, 11).4 M.W. also described the time from when Harvey

raised his hands to the time the shots were fired as “instantaneous.” (Exh. I at 14, 23).

When the trooper nevertheless sought to establish that Harvey had put his hands up (“But

the hands did go up first”), M.W. clarified, “They went up to their side. Not up over. . . So

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!4!When M.W. was interviewed by the Maryland State Police, she drew a diagram of her observations of the scene. That drawing has not been produced in discovery despite repeated requests by the defense. That missing evidence, if not ultimately produced, will be the subject of a separate motion. !

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his arms went up to about this point, not up like this, just like this.” (Exh. I at 15).5

Persisting, the trooper asked, “And I guess just again to clarify or just get a better

understanding, when the guy was walking southbound, when he stopped, from the time he

stopped until you heard the gunshots, how long was that?” (Exh. I at 22). To which M. W.

replied, “Not even a second, just a split. He raised -- he stopped and raised his arms up to

the side. And then it was boom boom. It was that quick.” (Exh. I at 22). M.W. added that

when Harvey “raised his arms up, it was lower than shoulder level, not above his head. I

can’t say if his palms were out, but both of his arms were straight by his side. I can’t say if

his palms were fists or anything, but they did go up. It just – it all happened so quick.”

(Exh. I at 23).

Finally, F.M. arrived at the scene after the shooting occurred and observed Harvey’s

body on the ground near the Walkers’ van. F.M. did not witness the shooting or the events

immediately prior to the shooting. (Exh. J).

An autopsy performed prior to the presentation to the Grand Jury determined that

Harvey was legally intoxicated. (Exh. K). As the State and Maryland State Police knew,

Harvey had been arrested for the felony assault of his girlfriend and Pidel had been

convicted of the felony assault of his wife.

THE GRAND JURY PRESENTATION

On July 26, 2013, an Assistant State’s Attorney for Anne Arundel County (the

“prosecutor”) sought an indictment against Det. Walker for Murder in the First Degree.

During the course of the Grand Jury presentation, the State’s sole witness, a Maryland State

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!5!M.W.’s physical demonstration was not otherwise described by M.W. or the trooper for the record.!

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trooper (the “trooper”), summarized the State’s version of events. (Exh. L at 3-8).6 On 31

occasions, the trooper described Harvey as “the victim” and testified that the medical

examiner concluded that “the manner of death was homicide.” (Exh. L at 9). Moreover, the

trooper’s testimony was replete with material misstatements and omissions and prejudicial

comments. Set forth below are those statements and the basis for error.

Statement #1:

TROOPER: On this day [the day of the shooting], after having lunch, Mr. Pydel [sic] and the victim stopped at WaWa located at 701 Annapolis Road, in Gambrills, Anne Arundel County, Maryland. Which [sic] is at the corner of Maryland Route 3 and 175 to get energy drinks and 5-Hour Energy drinks. (Exh. L at 4:10-14).

Error

The State’s reference to Harvey and Pidel “having lunch” omitted a material fact

critical for the Grand Jury’s consideration, i.e., Harvey and Pidel had been drinking for at

least four hours immediately prior to stopping at the WaWa. Harvey’s autopsy, which, as

the prosecutor and trooper knew, was conducted 12 hours after the incident, revealed a

blood alcohol level of .08 making him legally intoxicated under Maryland law. Harvey’s

blood alcohol level may well have been higher at the time of his attack on Det. Walker.

Statement #2:

TROOPER: All witnesses indicated that the victim [Harvey] stopped walking when the handgun was displayed and one saw the victim put his hands out to the side with his palms toward Mr. Walker. (Exh. L at 6:21-24).

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!6 The transcript is devoid of any preliminary remarks or charging instructions by the prosecutor who has represented to the defense that his charge to the Grand Jury was not transcribed. Therefore, to the extent the prosecutor charged the Grand Jury, such charge is not subject to the Court’s review.!

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Error

Following the trooper’s summary testimony, the jurors were permitted to ask

questions. One juror apparently tried to focus on the precise dynamic at the time of the

shooting. First, the juror asked that “most of these witnesses you have are fairly well in

agreement with the statement as you presented it?” (Exh. L at 14:2-3). The trooper

responded, simply, “Yes.” Id. The juror continued:

JUROR: I have a couple of questions, if I may. So, I want to go back and make sure like when the shooting actually occurred what was going on. So, you said the victim was six to twelve feet away from the vehicle and the suspect, right? . . . TROOPER: At the time of the shooting? JUROR: At the time of the shooting. TROOPER: Correct. JUROR: And three shots. Do we know where the first shot hit? Struck the victim? TROOPER: We believe it is going to be thigh. JUROR: Thigh. And did he – the victim fall on the ground, did he get up and approach like – TROOPER: No. JUROR: What happened at that moment? TROOPER: When he was shot – and the reason why we believe it is the thigh is based on the witness interviews. That once he was shot, after the first initial shot, he turned to the side and lifted a leg. And so, that is why we assume that it is going to be – that the first shot. But there is no way of determining if that is actually the first one. He did not fall until after the two further shots. JUROR: Okay, so he never –okay.

(Exh. L at 14:15-15:13).

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But it appears that the prosecutor believed that the trooper had missed the point of

the juror’s question. The juror was less interested in the order in which the shots entered

Harvey’s body than he or she was concerned with whether Harvey was continuing to pose a

threat to Det. Walker. To put the issue to rest, the prosecutor intervened, but in doing so, he

misrepresented the statements of the witnesses interviewed by the State Police.

PROSECUTOR: But after the first shot, all the witnesses who have provided statements indicate that the victim,7 Mr. Harvey, was standing still and had his hands up in -- that type of gesture?8 TROOPER: Correct. PROSECUTOR: He was not advancing on Mr. Walker in any form or fashion? TROOPER: Correct. PROSECUTOR: Okay. JUROR: That is what I wanted to make sure. (Exh. L at 15:15-24. (emphasis added)).

But this simply is not true, and it was known at that time not to be true. All the

witnesses who provided statements did not state that Harvey had surrendered and was no

longer advancing on Det. Walker “in any form or fashion.” In fact, only two witnesses said

that Harvey stopped at some point while Det. Walker displayed his weapon, but the

contradictions inherent in their statements make it wholly irresponsible for the State to

conclude that the information was reliable. First, Pidel stated in his interview that Harvey

stopped when he saw Det. Walker’s gun. (Exh. A at 22). But Pidel also stated that Det.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!7!The prosecutor also liberally used the word “victim” to describe Harvey.!!8!Although the prosecutor failed to describe his gesture so that it could be accurately captured in the record, a common sense reading of the transcript suggests that the prosecutor was making a “surrender” type gesture—both arms held above the head in an open-handed posture.!

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Walker reached into the minivan, which he assumed was to retrieve the weapon, when

Harvey was half the distance towards the Walker’s minivan. (Exh. A at 38, 40). That total

distance is 164 feet. Yet Pidel also stated that Harvey was 6 to 8 feet from Det. Walker

when Det. Walker pulled the gun. (Exh. A at 22). These contradictory statements were

certainly not sufficiently reliable for the prosecutor and the trooper to allow testimony that

every eyewitness was in agreement that Harvey stopped advancing when he saw a gun.

Similarly, M.W. stated that “the man walking south (Harvey) had stopped

progressing in his walk.” (Exh. I at 9). “He was walking towards. But as the other man

(Det. Walker) lifted his arms, he stopped. And the gentleman walking southbound raised his

arms up to his side. . . And then I heard the two shots. And he just went down.” (Exh. I at 9).

Yet, M.W. is adamant that the time from when Harvey put his hands out to when the two

shots were fired was “instantaneous.” (Exh. I at 14, 22, 23). Clearly, then, M.W. did not

observe the first shot. If Pidel is correct that seconds elapsed between the first and second

shots, then M.W.’s statement establishes that Harvey kept walking after he was shot the first

time. Thus, M.W.’s testimony cannot be taken to mean that Harvey surrendered the first

time Det. Walker pointed his gun at Harvey, as the trooper and prosecutor asserted before

the Grand Jury.9 In fact, there is no evidence that Harvey ever surrendered.

The prosecutor apparently relied on M.W.’s observations to support the position

that Harvey had raised his arms in surrender. But critically, M.W. stated “it was lower than

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!9!Moreover, M.W. is the same witness who inaccurately described the 5’10”, 299 lb. Harvey as not “look[ing] huge.” (Exh. I at 10). M.W. also estimated the distance between the men at the time of the shooting as “maybe half the distance between how two telephone polls would be.” (Exh. I at 10). M.W. elaborated that “the man (Harvey) was enough back where even if he took a run at the gentleman and lunged, it would – he was still far enough apart.” (Exh. I at 10). Asked to put a number on it, M.W. ventured “maybe 40, 50 feet.” (Exh I at 11). This was clearly factually incorrect. (Exh. F).!

! 16!

shoulder level, not above his head. I can’t say if his palms were out, but both of his arms

were straight by his side. I can’t say if his palms were fists or anything, but they did go up.

It just – it all happened so quick.” (Exh. I at 23). The prosecutor’s basis for the testimony

that Harvey held his hands up prior to the second and third shots derives from M.W. alone.

Yet, that testimony is at best ambiguous and arguably favorable to Det. Walker. M.W.’s

description of Harvey’s actions is consistent with an individual who maintains a fighting

posture.10

Certainly, whatever M.W. saw, or thought she saw, was sufficiently unreliable for

the prosecutor to characterize Harvey’s actions as a clear and unconditional surrender

corroborated by six other witnesses. Contrary to the assertion by the prosecutor that “after

the first shot, all the witnesses who have provided statements indicate that the victim, Mr.

Harvey, was standing still and had his hands up in -- that type of gesture,” a review of the

statements of the remaining witnesses demonstrate the falsity of his statement, which the

trooper adopted and endorsed.

W.P., who characterized Harvey as the aggressor and Det. Walker as appearing to

“just want peace,” said that he did not see what occurred immediately prior to hearing the

shot or the shooting itself.

J.M., who described Harvey as a stocky, big guy with clenched hands looking for a

fight, stated that the last thing he saw was Det. Walker reach into the minivan. He did not

see a gun, the shooting itself, or what happened immediately prior to the shooting.

J.M.’s wife, W.M., generally agreed with her husband’s characterization but also

did not see the shooting itself or the events immediately prior to the shooting.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!10!Inexplicably, the trooper who interviewed M.W. did not describe for the recorded statement, or ask M.W. to describe, Harvey’s hand gestures.!

! 17!

R.W. described Harvey as motioning with his arms in an animated fashion as he

aggressively approached Det. Walker. He said Det. Walker appeared to be waiting. The

last thing he said he saw was Harvey grabbing his pant leg when Harvey was only half the

distance from his car to the minivan.

F.M. only arrived after the shooting.

Notwithstanding the self-contradictory and internally inconsistent statements of

Pidel and M.W., and the failure of the five remaining witnesses to observe the shooting

itself, the prosecutor, in apparent desperation, and eager to obtain a charge of premeditated

murder, improperly characterized the witnesses statements as all consistent on the point that

Harvey had surrendered and stopped advancing on Det. Walker. Compounding this

intentional error, the prosecutor did so in response to a question by a juror that was asked

specifically to explore whether the shooting may have been justified and whether Harvey

was continuing to act aggressively towards Det. Walker.

Statement #3:

TROOPER: After the shooting Mr. Walker returned to his minivan. Mr. Pydel [sic] ran to the victim who is now lying on the shoulder of the roadway. Once Mr. Pydel [sic] reached the victim[,] the victim stated call the police. Mr. Pydel [sic] immediately called 911. (Exh. L at 7:8-12).

Error

This testimony misstated the account provided by Pidel who told the police that he

reached for his phone to call 911 as soon as he saw Det. Walker’s weapon. But more

significantly, by presenting to the Grand Jury that Pidel called 911, while omitting that Det.

Walker’s wife had also called 911 as Harvey and Pidel charged towards the minivan, the

! 18!

prosecutor unfairly permitted the Grand Jury to draw the inference that Pidel and Harvey

were “victims” while Det. Walker and his family were unconcerned aggressors.

Statement #4:

TROOPER: It was determined that Mr. Harvey, the victim, suffered three gunshot wounds ….None of these wound [sic] showed evidence at being fired at close range. (Exh. L at 8:20-25).

Error

This statement is in stark contrast to the fact that Harvey’s body was found 6 feet

from the Walkers’ minivan. (Exh. F). To suggest otherwise undermines the critical fact that

Harvey traversed a distance of approximately 158 feet, during which time Det. Walker

exercised total restraint and only discharged his weapon when he had no other recourse.

Statement #5:

JUROR: Did Mr. Walker say that he knew either of the victim [sic] or who he was with?

TROOPER: Mr. Walker?

JUROR: Yes.

TROOPER: Mr. Walker did not make any statements.

JUROR: No, I mean the –Mr. Walker was the guy who—

PROSECUTOR: He is the suspect.

JUROR: Right. He did not make any statements?

PROSECUTOR: Well, let me ask it this way, Trooper, initially the Anne Arundel County Police were--responded on scene before the Maryland State Police, correct? TROOPER: Correct.

PROSECUTOR: And it was at that time that Mr. Walker made an initial statement to an officer who arrived on the scene, correct? TROOPER: Correct.

! 19!

PROSECUTOR: And then once the investigation continued- - and during that statement Mr. Walker did not in any way indicate that he knew either the victim or Mr. Pydel [sic]? TROOPER: Right.

PROSECUTOR: And then there came a time that he [Detective Walker] was given the opportunity to provide a more detailed statement to the Maryland State Police, correct? TROOPER: Correct.

PROSECUTOR: And what was his decision on that?

TROOPER: He wanted to refer to speaking with a lawyer before providing a statement.

PROSECUTOR: And as you sit here today has a statement been provided by Mr. Walker?

TROOPER: No.

JUROR: Yeah, just because he was a police officer maybe there was some history in New Jersey or something, you know, and then—apparently not. So, he certainly had an opportunity to say that—if it was. (Exh. L at 12:6–13:17).

Error

Detective Walker had provided a statement to Corporal Robert Henry of the Anne

Arundel County Police, Western District Station. Corporal Henry, in turn, disclosed the

substance of that statement to the trooper on June 20, 2013, five weeks before the trooper’s

Grand Jury testimony.

Although the prosecutor later tried to clarify to the Grand Jury that Det. Walker had

not made a statement to the Maryland State Police, at no time did the prosecutor disclose to

the Grand Jury the substance of Det. Walker’s statement to Corporal Henry – specifically,

that he feared for his life and the lives of his family members prior to shooting Harvey, and

that Harvey had confronted him and threatened him.

! 20!

There was no reason for the prosecutor to gratuitously solicit the trooper’s

comment about Det. Walker’s failure to provide the Maryland State Police with a statement

except to prejudice Det. Walker in violation of his Fifth Amendment rights.

Statement #6:

JUROR: I think that I may have read about this in the paper the other day. Did Mr. Walker have his family with him? TROOPER: Yes. (Exh. L at 14:11-14).

Error

In this instance, the prosecutor failed in his obligation, as legal advisor to the

Grand Jury, to inquire into what information the juror had obtained outside the Grand Jury

and failed to provide an immediate instruction that the juror or any other juror must

disregard any such information.

Prior to the Grand Jury’s deliberations, the local media was replete with material

misinformation as to the facts of the case. For instance, one story published originally in

The Capital Gazette on June 10, 2014, quoted an early statement by Pidel in court records as

having “told investigators Harvey attempted to protect himself after the first shot.” 11

Pidel’s initial claim, contradicted by Pidel’s later statement to the State police, was not

presented to the Grand Jury. Therefore, its consideration by the juror would have been

improper and prejudicial.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!11!See http://www.capitalgazette.com/news/lawyer-motorist-fatally-shot-after-he-threatened-to-kill-cop/article_a286f956-1f51-55e3-8076-ec54874045d1.html?mode=jqm (last visited February 24, 2014). !

! 21!

LEGAL ARGUMENT

I. THIS HONORABLE COURT SHOULD DISMISS THE INDICTMENT WHICH WAS OBTAINED AS A RESULT OF PROSECUTORIAL MISCONDUCT BEFORE THE GRAND JURY.

A. The prosecutor and the trooper presented materially false information to the Grand Jury. The Grand Jury occupies a unique place in the American justice system. Whitehouse

v. United States District Court for the District of Rhode Island, 53 F.3d 1349, 1356 (1st Cir.

1995). The Grand Jury does not belong to the executive branch, rather it acts as a buffer or

referee between the prosecutor and the people. Id. at 1356. The knowing presentation of a

prosecuting attorney of perjurious testimony to the grand jury to obtain an indictment is

sufficient to warrant dismissal. United States v. Strouse, 286 F.3d 767 (5th Cir. 2002).

Prejudice is demonstrated by a showing that the misconduct before the grand jury

substantially influenced the grand jury’s decision to indict or where there is grave doubt that

the decision to indict was not substantially free from the misconduct. Bank of Nova Scotia,

487 U.S. at 256, 263.

The knowing presentation of materially false testimony to the Grand Jury is

precisely what occurred in Det. Walker’s case. The testimony before the Grand Jury, as

outlined in the “GRAND JURY PRESENTATION” section, supra, was part and parcel of

the efforts of the prosecutor and trooper to improperly steer the presentation.

The overwhelming evidence is that Harvey and Pidel charged at Det. Walker, who

remained by the side of his family. Det. Walker ordered the men to stop; they did not. The

purported “surrender” never happened. The trooper knew it. The prosecutor knew it.

There was absolutely no truth to the prosecutor’s false assertion, which the trooper adopted

and endorsed, that “all the witnesses who have provided statements indicate that Harvey was

! 22!

standing still and had his hands up in -- that type of gesture.” Of the six passersby

interviewed, only one described, albeit in a very confused manner, the decedent’s arms

being raised, and this is the same witness who misjudged the distance between Det. Walker

and the decedent by approximately 34-44 feet at the time of the shooting. At no time did the

State present evidence of the conflicting nature of the witnesses’ statements on precisely

that point. Even Pidel, Harvey’s friend, does not support the suggestion that Harvey

“surrendered.”

Stated simply, it was prosecutorial misconduct to present such material falsehoods to

the Grand Jury. The presentation impaired the Grand Jury’s function to Det. Walker’s

prejudice. Therefore, dismissal of the Indictment is required.

“The Due Process Clause of the Fifth Amendment is violated when a defendant has

to stand trial on an indictment which the government knows is based partially on perjured

testimony.” United States v. Basurto, 497 F.2d 781, 785 (9th Cir. 1974).12 If an indictment is

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!12!The Maryland Court of Appeals “long ago determined that the phrase, ‘the Law of the land,’ ‘mean[s] the same thing’ as ‘due process of law’ as used in the Fourteenth Amendment of the U.S. Constitution. Baltimore Belt R.R. v. Baltzell, 75 Md. 94, 99, 23 A. 74, 74 (1891); see e.g. Department of Transportation v. Armacost, 299 Md. 392, 415-16, 474 A.2d 191, 202-03 (1984) (‘The due process clause of Article 24 of the Maryland Declaration of Rights and the fourteenth amendment to the federal constitution have the same meaning; and we have said that Supreme Court interpretations of the federal provision are authority for the interpretation of Article 24.’ (Citing Pitsenberger v. Pitsenberger, 287 Md. 20, 27, 410 A.2d 1052 (1980), appeal dismissed, 449 U.S. 807, 101 S.Ct. 52, 66 L.Ed.2d 10 (1980))); Pitsenberger, 287 Md. at 27, 410 A.2d at 1056 (same) (citing Barry Properties v. Fick Bros., 277 Md. 15, 22, 353 A.2d 222 (1976); Bureau of Mines v. George's Creek, 272 Md. 143, 156, 321 A.2d 748 (1974)).” Clark v. State, 364 Md. 611, 644, 774 A.2d 1136, 1155 (2001). Further noting that prior cases enunciating this principle “were decided on the basis of the Due Process Clause of the Fifth Amendment to the U.S. Constitution, the Court of Appeals remarked, “we perceive no reason in this case to address whatever distinction there may be between the due process clause of the Fifth Amendment and that of the Fourteenth Amendment. We shall in the matter sub judice treat ‘due process,’

! 23!

based partially on perjured testimony that is material to the indictment, the defendant’s due

process rights have been violated and the indictment must be dismissed. Id.

Dismissal of an indictment is required in cases where the grand jury has been

deceived in some significant way, as where false or perjured testimony is presented. United

States v. Samango, 607 F.2d 877, 882 (8th Cir. 1979). Permitting a defendant to stand trial

on an indictment which the government knows is based on perjured testimony cannot

comport with this “fastidious regard for the honor of the administration of justice.” Basurto,

497 F.2d 781, 787, citing Communist Party v. Subversive Activities Control Board, 351 U.S.

115, 124, 76 S.Ct. 663 (1956).

In Basurto, a witness who testified before the grand jury admitted that he perjured

himself by providing testimony that was untrue. Basurto, 497 F.2d 781, 784. This witness

was the only undisputed person who had knowledge of the defendant’s activities with regard

to the conspiracy. Id. He informed the prosecutor of his false testimony prior to the

commencement of trial. Upon learning of the perjury, the prosecutor informed defense

counsel, but not the court.

The court held that it violates a defendant’s constitutional rights when he is

subjected to standing trial on an indictment which the government knows is based partially

on perjured testimony. Basurto, 497 F.2d 781, 785. The court explained that it is the

prosecutor’s duty upon learning the indictment is based in part on false testimony to correct

the cancer of injustice and insure that the defendant does not stand trial based on the

indictment. Id. at 784.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!whether in the Fifth or Fourteenth Amendment, as being equated to the ‘Law of the land.’” Id.

! 24!

In the case before this court, the State presented testimony that it knew was false. Id.

at 785. The substance of this testimony was clearly the basis for the Indictment against Det.

Walker, as a Grand Juror noted with respect to the non-existent surrender: “That is what I

wanted to make sure.” (Exh. L at 15). Other than this false testimony, there is no actual

evidence to support the charge that Det. Walker with premeditation killed Harvey, who had

threatened him and his family with obscene, violent words, and followed up those words

with threatening actions.

II. THE PROSECUTION INVADED THE PROVINCE OF THE GRAND JURY, AND THEREBY VIOLATED DETECTIVE WALKER’S FIFTH AMENDMENT RIGHTS.

Rather than simply outlining the investigative facts to justify seeking the charge, the

trooper and the prosecutor advised the Grand Jury that the underlying conduct of Det.

Walker had violated the law by labeling Harvey, rather than Det. Walker and his family, as

the victim. This is demonstrated by referring to Harvey as “the victim” 31 times during his

testimony. Thus, the Grand Jury was instructed by two law enforcement authorities that

Harvey was a victim, notwithstanding the fact that he had threatened Det. Walker while

demanding that he pull off the road, and aggressively confronted Det. Walker after exiting

his vehicle. Once the prosecutor and the trooper deemed Harvey to be the victim, they

presented materially false testimony and omitted materially relevant testimony to ensure that

there was virtually nothing left for the Grand Jury to deliberate. Compounding the error, the

trooper testified that the medical examiner determined “the manner of death to be

homicide.” (Exh. L at 9). In essence, they improperly tailored the presentation to ensure that

Det. Walker would be indicted for murder.

! 25!

The Fifth Amendment to the U. S. Constitution provides, in pertinent part, that “[n]o

person shall be held to answer for a(n) . . . otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury . . .” It further assures that no person shall “be

deprived of . . . liberty, or property, without due process of law . . .” U.S. CONST. amend V.

The purpose of the federal constitutional right to indictment is to assure that a person is not

subject to jeopardy unless infamous charges be presented to a group of one’s fellow citizens

acting independently of either the prosecuting attorney or the judge. Stirone v. United States,

361 U.S. 212, 216, 80 S. Ct. 270, 4 L. Ed2d. 252 (1960); U. S. v. Field, 875 F.2d 130, 133

(1989). See e.g. U.S. ex. rel. Toth v. Quarles, 350 U.S. 11, 14, 76 S. Ct. 1, 100 L. Ed. 8

(1955).

The ABA Criminal Justice Section Standards, approved as “black letter” standards

by the ABA House of Delegates, provides that a prosecutor, who acts as a legal advisor to

the grand jury, may “appropriately explain the law and express an opinion on the legal

significance of the evidence but should give due deference to (the grand jury’s) status as an

independent legal body.”13 Standard 3-3.6 (a) provides that “[i]n appropriate cases, the

prosecutor may present witnesses to summarize admissible evidence available to the

prosecutor which the prosecutor believes he or she will be able to present at trial. The

prosecutor should also inform the grand jurors that they have the right to hear any available

witnesses, including eyewitnesses.” Moreover, “[n]o prosecutor should knowingly fail to

disclose to the grand jury evidence which tends to negate guilt or mitigate the offense.” Id.

at Standard 3-3.6(b). Standard 3-3.6(f) further cautions that a prosecutor, in presenting a

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!13!ABA Criminal Justice Section Standards, Prosecution Function (1992), Standard 3-3.5(a)(http://www.americanbar.org/publications/criminal_justice_section_archive/crimjust_standards_pfunc_toc.html) (last accessed Feb. 24, 2014).!

! 26!

case to a grand jury, should not “intentionally interfere with the independence of the grand

jury, preempt a function of the grand jury, or abuse the processes of the grand jury.” Id. The

prosecutor must not only measure his own conduct, but that of its witness presenting

evidence to the grand jury.

Similarly, the Maryland Rules of Professional Conduct provide that a “prosecutor in

a criminal case shall refrain from prosecuting a charge that the prosecutor knows is not

supported by probable cause.” MD. CODE. ANN. §16-812, MRPC 3.8 (West 2103).

Probable cause is “[r]easonable cause; having more evidence for than against.” Black’s Law

Dictionary 1201 (6th ed. 1990). That is, “[a]n apparent state of facts found to exist upon

reasonable inquiry (that is, such inquiry as the given case renders convenient and proper),

which would induce a reasonably intelligent and prudent man to believe, in a criminal case,

that the accused person had committed the crime charged. . ..” Id. citing Cook v. Singer

Sewing Mach. Co., 138 Cal.App. 418, 32 P.2d 430, 431. In this case, the evidence available

to the prosecutor at the time of the Grand Jury presentation in no way tipped the balance in

favor of an indictment of Det. Walker for First Degree Murder.

Prosecuting attorneys, as officers of the court, are expected to present factual

evidence to the grand jury panel, instruct it as to the applicable law, and permit it free and

unobstructed deliberations in determining whether probable cause exists to return a true bill.

Neither prosecutors nor their witnesses should be instructing the jurors on what constitutes a

violation of the very statutes that the jurors are commissioned to deliberate. If they do so,

they render the Fifth Amendment right to indictment meaningless, and violate a defendant’s

right to due process. Because of the cumulative nature of the errors committed by the State

! 27!

in the presentation before the Grand Jury, dismissal of the Indictment is the appropriate

remedy.

III. THIS HONORABLE COURT HAS THE INHERENT POWER TO DISMISS THE INDICTMENT WHERE IT WAS OBTAINED BECAUSE OF THE PROSECUTOR’S MISCONDUCT.

This Court may dismiss an indictment where, as here, the prosecutor’s misconduct

has substantially prejudiced the defendant. In the federal system, a district court has the

inherent power to discipline attorneys who appear before it. Sheldon v. United States, 53

F.3d 1349, 1356 (1st Cir. 1995). Pursuant to its inherent authority, a district court may

regulate a prosecutor’s conduct. Id. at 1357. In accordance with its inherent authority to

regulate attorney conduct, as well as its supervisory powers, a district court may dismiss an

indictment upon a showing of prosecutorial misconduct before the grand jury impairing its

traditional function to a defendant’s prejudice. Bank of Nova Scotia v. United States, 487

U.S. 250, 253 & 263 (1988); United States v. Williams, 504 U.S. 36, 46 (1992).

Maryland courts have held that prosecutorial misconduct, absent prejudice to the

defendant, would not give rise to dismissal of the indictment. State v. Deleon, 143 Md.App.

645, 663 n. 4, 795 A.2d 776, 786 n. 4 (2002) (“Other remedies besides dismissal, such as a

contempt of court or attorney disciplinary proceedings, allow the court to focus on the

behavior of the prosecutor instead of granting a windfall to an unprejudiced defendant”).

But where such prejudice to the defendant is present, the Deleon court endorsed the federal

line of reasoning. “With respect to prosecutorial misconduct generally, actual prejudice

must be shown before the sanction of dismissal or reversal of a conviction can be properly

imposed.” Id. at 789 (citing Bank of Nova Scotia v. United States, 487 U.S. 250, 108 S.Ct.

! 28!

2369, 101 L.Ed.2d 228 (1988); United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76

L.Ed.2d 96 (1983); United States v. Brockington, 849 F.2d 872 (4th Cir. 1988))

Det. Walker has suffered actual prejudice as a result of the false statements presented

to the Grand Jury. The State’s violation substantially influenced the Grand Jury’s decision to

indict and provides grave doubt that the decision to indict was free from the substantial

influence of such violations. Bank of Nova Scotia v. United States, 487 U.S. 250, 256 (1988)

(“The prejudicial inquiry must focus on whether any violations had an effect on the grand

jury’s decision to indict. If violations did substantially influence this decision, or there is

grave doubt that the decision to indict was free from such substantial influence, the

violations cannot be deemed harmless.”).

The trooper’s materially false statements and equally material omissions

unquestionably influenced the Grand Jury’s decision to indict Det. Walker. This was not one

isolated false statement or omission. The false statements and omissions by the prosecutor

and trooper were made to support a tortured theory that Det. Walker committed an act of

cold-blooded, pre-meditated murder, rather that acting in self-defense. This theory

permeated the presentation but was utterly belied by the evidence available to the State

when it sought the Indictment.

But for the false material testimony and omission of material facts, the Grand Jury

would have had no evidence on which to support the charge of murder, premeditated or

otherwise. Moreover, had the Grand Jury known that Det. Walker had made a statement in

which he indicated that he had feared for his life and his family’s lives, the Grand Jury may

have refused to indict him. See United States v. Kojayan, 8 F.3d 1315 (9th Cir. 1993) (court

remanded for district court to decide whether to dismiss under supervisory powers as

! 29!

“sanction for government’s misbehavior” without referencing prejudice); United States v.

Bernal-Obeso, 989 F.2d 331, 337 (9th Cir. 1993) (without reference to harmless error or

prejudice, court remanded for inquiry into whether informant lied to DEA stating: “should

the court uncover egregious wrongdoing by the government . . . nothing in this opinion

forecloses consideration by the court of dismissing the indictment for outrageous

government conduct”); See e.g. United States v. Santana, 6 F.3d 1, 10 (1st Cir. 1993)(citing

fact that Supreme Court left open the “possibility that the goal of deterring future

misconduct would justify using the supervisory power . . .”).

Even assuming, arguendo, that the prosecutor did not know, when presenting the

case to the Grand Jury, the evidence relating to the purported surrender was false, or Det.

Walker had actually made a detailed statement, the State knows now and must take steps to

correct the injustice. For, it has been absolutely clear that the government:

...is subject to certain restrictions on its relationship with the grand jury and the type of evidence it may present to obtain an indictment. See Basurto, 497 F.2d 781, United States v. Gallo, 394 F. Supp. 310, 315 (D.Conn. 1975). For example, where the government knows that perjured testimony has been given to

the grand jury and the testimony is material to the grand jury’s deliberations, due process

requires that a prosecutor take such steps as are necessary to correct any possible injustice.

Basurto, supra. When jeopardy has not yet attached, it generally is proper for the prosecutor

to return to the grand jury and seek a new indictment untainted by the perjury. United

States v. Guillette, 547 F.2d 743 (2d Cir. 1976). See also United States v. Udziela, 671 F.2d

995 (7th Cir. 1982):

where perjured testimony supporting an indictment is discovered before trial the government has the option of either voluntarily withdrawing the tainted

! 30!

indictment and seeking a new one before the grand jury when it reconvenes, unless it is already sitting, or of appearing with defense counsel before the district court for an in camera inspection of the grand jury transcripts for a determination whether other, sufficient evidence exists to support the indictment. If other, sufficient evidence is present so that the grand jury may have indicted without giving any weight to the perjured testimony, the indictment cannot be challenged on the basis of the perjury. Here, the Grand Jury would not have indicted but for the perjured testimony, for

without it, there is no basis in the record to support the charge. Accordingly, the Indictment

must be dismissed.

CONCLUSION The facts set forth herein conclusively demonstrate the commission of prosecutorial

misconduct and corresponding prejudice to Det. Walker. This misconduct includes, but is

not limited to:

• falsely testifying before the Grand Jury in summarizing the witness statements provided to the Maryland State Police;

• repeatedly using the term “victim” in referring to Harvey as it was the Grand Jury’s role to reach any such conclusion;

• falsely informing the Grand Jury that Det. Walker had not provided a statement to law enforcement personnel when, in fact, he had done so, and then, improperly eliciting testimony about his “failure” to do so; and

• intentionally concealing and withholding material facts, including: a) Det. Walker’s statement that he feared for his life and the lives of his family prior to shooting Harvey; b) That Harvey and Pidel had been drinking heavily for several hours immediately prior to the incident and Harvey was legally intoxicated during the incident; c) Pidel’s admission to law enforcement personnel that Harvey purposely stopped his car, left it and advanced on the Walker’s minivan with the specific intent and purpose to physically assault Det. Walker; d) Mrs. Walker’s 911 call for assistance, as Harvey and Pidel approached the Walkers’ minivan; and

! 31!

e) Harvey’s body having been found by the Maryland State Police six (6) feet from the Walkers’ minivan.

In sum, the prosecutorial misconduct here was of such a qualitative and quantitative

nature that it undermined the Grand Jury’s integrity and its deliberative process, usurped its

role in protecting Det. Walker and the public from an unwarranted prosecution, and resulted

in the denial of Det. Walker’s right to basic due process. See Serving on a Maryland Grand

Jury, Maryland Judiciary, Jury Use and Management Committee, at 2, 5 and 9

(http://mdcourts.gov/juryservice/pdfs/grandjuryservice.pdf). The State failed to fulfill its

obligation to the Grand Jury to render appropriate guidance as its legal advisor and present

to its members, in good faith, evidence which the State has scrutinized for its reliability and

relevance. Id.

Accordingly, it is respectfully requested that the Indictment be dismissed. Should

the State seek to obtain a new indictment, it is further requested that the State be ordered to

present material evidence to the Grand Jury, to include, but not be limited to, Detective

Walker’s statement to law enforcement, the Walker family’s 911 call, Harvey’s heavy

drinking prior to his threatening conduct and words, all the statements of Pidel and the six

witnesses who were passers-by, and Det. Walker’s passing of a polygraph examination

confirming that after Det. Walker displayed his weapon, Harvey indicated that he was going

to try to harm or injure him.14

[Signature block on next page]

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!14!The admissibility of the polygraph evidence at trial is the subject of a motion filed contemporaneously herewith.!

! 32!

Respectfully submitted, ______________________

Charles N. Curlett, Jr. Steven H. Levin LEVIN & CURLETT LLC 201 N. Charles Street Suite 2000 Baltimore, Maryland 21201 410-685-4444 Michael T. Cornacchia 260 Madison Avenue 22nd Floor New York, New York 10016 646-278-4297 Attorneys for Joseph Lamont Walker