Discovery of evidence prompts delay of trial


Less than 48 hours before a man's trial was to begin in the shooting death in July of Officer Brian D. Winder, the prosecutor and the defense attorney learned about hours of video footage from the crime scene, evidence that had gone undiscovered for almost a year and could complicate the case.

The trial of Jermaine Gaines, charged with handgun violations, had been scheduled to begin today. Yesterday, a judge delayed it until Monday to give lawyers a chance to review five videotapes made by Baltimore police, each of which could be up to two hours long.

Failure to turn over information to defense attorneys violates evidentiary discovery rules. The state's attorney's office came under scrutiny in 2001 for discovery violations that resulted in the dismissal of charges in several high-profile cases, including murder cases.

Gaines' attorney, Bridget Duffy Shepherd, said she might ask the judge for sanctions after reviewing the footage. Meanwhile, she said, she is scouring the videotapes for anything that could help her client's defense.

"It's very disconcerting to have something come out of the blue and land on your desk like this," Shepherd said. "This case has been postponed several times, yet I'm still getting discovery on the eve of picking a jury."

Prosecutors said they did not know about the tapes until a police officer mentioned them to Assistant State's Attorney Andrea Mason during routine trial preparation Monday night.

"It was a surprise for the prosecutor," said Margaret T. Burns, spokeswoman for the city state's attorney's office.

It was unclear yesterday why police did not notify prosecutors earlier. Matt Jablow, a spokesman for the Baltimore Police Department, declined to comment.

Gaines, 32, is charged with being a felon in possession of a handgun and a misdemeanor weapons violation in connection with events preceding the fatal shooting of Winder, 36, at an Edmondson Village liquor store.

The man accused of pulling the trigger, Charles Bennett, killed himself as police closed in on him days after the shooting.

Because Gaines is linked to the death of an officer, his trial is expected to draw a large police presence. A judge ruled this month that officers cannot wear their uniforms when they sit in the courtroom gallery, saying it might prejudice the jury.

Prosecutors said they do not plan to use the videotapes as evidence. Shepherd said she has no idea what the footage shows or whether it could help her defense.

Shepherd, the Circuit Court chief of Baltimore's public defenders, said discovery has been a problem for city prosecutors. "This has been a pet peeve of mine for 20 years," she said.

In fall 2001, The Sun documented numerous cases that were dismissed or badly damaged in a two-month span because of evidence problems. One man charged with first-degree murder went free when police said they couldn't find his case file.

State's Attorney Patricia C. Jessamy began an "open-door" policy in January 2002, which her spokeswoman said allows defense attorneys to view everything in the prosecutor's file except the prosecutor's personal notes.

Prosecutors and police undergo training on the legal obligations of disclosing evidence to defense attorneys.

Burns said that because of those changes, discovery violations such as the one in Gaines' case are "virtually unheard of."

Shepherd said public defenders frequently spar with prosecutors over disclosure of evidence.

"Have there been improvements in recent years? I guess so," she said. "But the problem has not been solved."

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