Lawyers claim Jewish brothers can't get fair trial in Baltimore

Avi Werdesheim, 20, and Eliyahu Werdesheim, 23, arrive at the Clarence M. Mitchell Jr. Courthouse.
Avi Werdesheim, 20, and Eliyahu Werdesheim, 23, arrive at the Clarence M. Mitchell Jr. Courthouse. (Kim Hairston, Baltimore Sun)

Attorneys for two Jewish brothers, who are accused of beating a black teen while patrolling their Northwest Baltimore neighborhood, argued Monday that their trial should be delayed or transferred because African-American leaders and the news media have inextricably linked it to the Florida killing of Trayvon Martin.

The similarities between the cases "are conspicuous," defense lawyers for Avi and Eliyahu Werdesheim wrote in an eight-page motion filed in Baltimore Circuit Court, shortly before the brothers' trial was set to begin after six postponements.

"Both involve young African-American males walking along on public thoroughfares, who supposedly were accosted by one or more Caucasian members of citizen patrol groups who felt they didn't belong in the area, and allegedly subjected to unprovoked attacks," the motion said. The Werdesheims can't get a fair trial in Baltimore amid all the publicity, defense attorneys said.

The brothers were told to report Tuesday morning for trial on charges related to the November 2010 incident, because no judge was available Monday. Their lawyers expect to argue the motion fully then.

Eliyahu Werdesheim, now 24, was a member of Shomrim, an Orthodox Jewish citizens' watch group, when he allegedly confronted a 15-year-old boy in the Park Heights area, telling him, "You don't belong around here," while his brother, now 21, threw the boy to the ground, according to a police account.

George Zimmerman, described as Hispanic in media accounts, was the captain of his gated Florida community's neighborhood patrol when he shot 17-year-old Trayvon Martin in February. The hoodie-wearing young man was walking to a relative's home, reportedly talking to his girlfriend on a cellphone.

The defendants in both cases claim they were acting in self-defense, but others have charged that racism played a role, leading to public protests and significant media attention. Coverage of the Werdesheims was largely local until Martin's death, however, when the two cases were symbolically linked by various publications.

"Cases that are polarizing nationally can have a polarizing impact locally," said Kendall Coffey, an adjunct professor at the University of Miami School of Law who recently published a book about the media's impact on trials. "The concerns that something that is every day in the news and as emotional as the Trayvon Martin case could be fueling [unease] hundreds of miles away from Central Florida are not fanciful."

Martin's death has led to protests and rallies around the country, including in Baltimore, where roughly 1,200 people — many wearing hoodie sweatshirts to show solidarity with Martin — gathered outside City Hall last month chanting "Justice now."

One of the speakers there was J. Wyndal Gordon, who has filed a civil lawsuit against the Werdesheims on behalf of the teen they allegedly assaulted. Police said at the time that the teen was not under investigation in the incident.

Gordon urged the ralliers to attend the Werdesheims' trial, the defense motion claims, contaminating the brothers' "right to a fair and impartial jury here."

In an interview Monday, Gordon said he encouraged people to show "their support" for the boy by attending the trial.

"The court, from my understanding, is open to everybody," he said, adding that he didn't believe the Martin case would taint the Werdesheims' criminal trial. "They are desperately grasping at straws to inject me into the case."

Werdesheim defense attorneys Andrew I. Alperstein and Susan Green declined to comment Monday, saying it wouldn't be "appropriate to discuss the case while there's a pending motion to transfer based on too much publicity."

In court Monday, Alperstein told the judge in charge of assigning trial courtrooms that delaying the Werdesheim case until the "Zimmerman matter settles down would be in the best interests of justice." He didn't discuss a change of venue, which is outlined in his motion.

The motion includes affidavits from the brothers saying they don't believe they can "receive a fair and impartial trial in Baltimore City, due to the extensive pretrial publicity in this case, as well as the recent developments in the Trayvon Martin matter."

The motion also claims that the incident involving the brothers "ignited a firestorm of controversy, recriminations and protests in the greater Baltimore metropolitan region and has served to polarize various segments of the community." The motion adds that "widespread media coverage of the case" has "exacerbated" the tensions.

Assistant State's Attorney Kevin Wiggins argued in court Monday that the two cases were "separate and distinct" and urged that the trial go forward. All previous postponement requests have been made by the defense, a spokesman had noted earlier.

Doug Colbert, a professor at the University of Maryland School of Law, said it's "always a valid concern to ensure that the rights of an accused are not placed in jeopardy by any outside event."

But he added that measures can be taken during jury selection to ensure a fair trial, such as asking questions about "jurors' attitudes about what allegedly happened here and whether there's any reason [or] outside factor that would make it difficult for them to be fair and impartial."

Criminal defense attorney Andrew Levy, based in Baltimore, said the selection of an unbiased jury can be something of a legal fiction in reality, however, even though the "whole system is sort of premised upon it."

"Obviously, what they want to have happen is that it be moved out of the city, where I'm sure they perceive the Trayvon Martin case as resonating particularly deeply," Levy said. He added that the Martin case "isn't going away any time soon" and questioned how long the Werdesheims' lawyers would want to postpone.

"Years?" he said. "That's not going to happen."