Three men convicted in a Baltimore murder are seeking a new trial after a prosecutor made an issue of a white witness' living in a predominantly black neighborhood — a comment that the judge in the case said "smacks of racism."
In closing arguments this month, Assistant State's Attorney Theresa M. Shaffer asked the jury to carefully consider the words of a witness who testified that the victim of a West Baltimore killing might have been armed.
"He don't want to be involved," she said. "He's a white man in a neighborhood that makes him stand out. He is not nondescript."
The final arguments focused on how closely the witness — who was called by the defense — had observed the moments before the shooting. He testified that the victim reached for his waistband, indicating he might have had a gun. The defense argued the shooting was an act of self-defense.
Nonetheless, Judge Wanda K. Heard said it was "wrong" for a prosecutor to highlight a white man's decision to live in a West Baltimore neighborhood.
"I resented it as a judge; I resented it as a black woman in Baltimore City, and it was wrong," Heard said.
The judge had previously held Shaffer in contempt twice during the trial, imposing two $200 fines after the prosecutor asked questions that had been ruled out of bounds. Heard said after the jury rendered its verdict that Shaffer came "close to being incarcerated."
Shaffer declined to comment. State's Attorney Gregg L. Bernstein said his office would respond to the new trial motion and that he was confident the comment would appear "appropriate" in "the full context in which the remarks were made."
The case involved Antoine Dorsey, Edward Ellis and Zebary Pearson, who were convicted of second-degree murder this month for shooting Jermaine Blue 22 times following an argument. Several people were charged with witness intimidation during the lengthy trial, according to the state's attorney's office.
In a recent court filing, lawyers for the three men argued that Shaffer's racial comments and other missteps were serious enough that their clients should get a new trial.
Defense attorney Ivan J. Bates said in his closing argument that the witness was "sitting back doing his own thing" but had a "sixth sense" for danger that led him to keep one eye on the events leading up to the murder.
Shaffer was responding to those comments when she brought up the race of the witness.
Bates had raised the issue of the witness' race during questioning earlier in the trial, drawing an interjection from Heard. But it was Shaffer's remark that attracted the most attention from the judge.
"The fact that a white kid would move into a black neighborhood should not be held out as a negative or even used as an example or a demonstration of anything but the strength of our neighborhoods," Heard said.
Shaffer responded that she agreed.
"But that's not how you were using it," Heard said.
Heard withdrew the fines after Shaffer apologized for the questions that drew the contempt findings.
After the trial, the defense lawyers objected in court documents to Shaffer's continued line of questioning.
"Ms. Shaffer's lack of regard for the trial court's ruling and refusal to change her tactics after being found in contempt on the first occasion show her willingness to do whatever it takes to win and affected the defendant's right to a fair trial," the lawyers wrote.
In the motion, the defense attorneys also questioned whether prosecutors had helped a witness in the case get a lower bail when he was arrested on a handgun violation in the middle of the trial. The defense attorneys suggested the gun he allegedly possessed could have been the murder weapon.
They also raised concerns about the way evidence was turned over to them before the trial began.
Because of the "cumulative effect of all the improper actions," the judge should grant a new trial, the lawyers wrote.
It was the second recent murder trial in which prosecutors' actions have drawn in a contempt finding and protests by the defense.
In the previous case, according to a memo from Baltimore Circuit Judge Emanuel Brown, the judge signed a writ for prosecutors to bring one of the witnesses to court to testify, when in fact he was transported from jail to meet another witness, his sister, for lunch.
"The state should not have presented another witness writ to this court," Brown wrote.
Brown wrote that the prosecutors' actions put the "case in jeopardy" but rejected attempts by the defense to have the case thrown out, and three men were convicted. The two prosecutors in that case, members of the major investigations unit in the state's attorney's office, were fined $100 apiece.
A spokesman for Bernstein has said the office is conducting an internal review of the prosecutors' actions in that case.
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