Prosecutorial indiscretion [Commentary]

On an evening in June 2013, New Jersey Det. Joseph Walker was driving his minivan along Route 3 near Interstate 97 with his wife and three young children when he accidentally drifted into Joseph Harvey Jr.'s lane of traffic. Harvey, who was with a passenger, Adam Pidel, responded by yelling racial slurs at Detective Walker and his family, who are African-American, and issuing a death threat. Harvey eventually forced the Walkers from the road and sped off only to pull over 50 yards ahead. Harvey and Mr. Pidel jumped from the car and quickly moved on the Walker family, clearly looking to fight. Harvey was carrying a tactical flip knife. Detective Walker told his wife to call 911, stood in front of his minivan, displayed his badge and ordered the men to stop. They ignored his warning. Detective Walker drew and displayed his service-issued handgun. Mr. Pidel finally stopped, but Harvey continued his charge.

Detective Walker fired three shots and Harvey fell to the ground approximately 6 feet in front of the Walkers' minivan.

The case was assigned to Anne Arundel County Assistant State's Attorney Michael Dunty, who in his apparent determination to obtain an indictment on murder charges, presented evidence to the grand jury that was not supported by the facts. Through the testimony of a Maryland state trooper, Mr. Dunty represented that all witnesses to the shooting were in agreement that Harvey was standing still and surrendering when Detective Walker shot him.

In fact, none of the eyewitnesses had reported seeing Harvey surrender, nor would they. All of them eventually testified at trial, and none corroborated the account offered by Mr. Dunty to the grand jury.

We had the privilege of defending Joe Walker and combating what we believe was prosecutorial misconduct.

When transcripts of the witness interviews and the grand jury testimony were produced, we were shocked by the discrepancy between the evidence and the grand jury presentation. We immediately moved to dismiss the indictment based on prosecutorial misconduct. After a pre-trial hearing, Circuit Court Judge J. Michael Wachs found that Mr. Dunty had indeed "misled" the grand jury in securing Detective Walker's indictment but that it did not rise to the level of being perjurious, and he declined to dismiss the indictment. Judge Wachs also declined to dismiss the indictment after the state violated its discovery obligations by, among other things, failing to turn over an exculpatory ballistics report until the day before trial.

During jury selection, Mr. Dunty used seven of his 10 preemptory challenges to remove African-Americans from the panel. We objected. Judge Wachs then recalled an African American juror who had been challenged by Mr. Dunty and substituted her onto the jury in the place of a white juror who was then removed.

During the trial, Mr. Dunty also failed to call the only independent eyewitness to the automotive pursuit of the Walkers by Harvey and Mr. Pidel along the highway before the family was forced from the road. Fortunately, we called the witness, and his testimony proved critical.

And in his closing argument, Mr. Dunty unabashedly demonstrated the same "surrender gesture" to the jury that he used to secure the indictment, when there was absolutely no testimony that Harvey had ever assumed this position.

Ultimately, the jury found that Joe Walker shot Harvey to defend his family and himself and acquitted him of all charges on July 30.

However, Anne Arundel County State's Attorney Anne Colt Leitess, Mr. Dunty's boss, could not accept the result. She conducted a press conference and publicly besmirched Joe Walker by stating that she was "concerned" that he "is a very aggressive person." In so doing, she referenced unsubstantiated information from Joe Walker's personnel file, in contravention to her ethical obligations. Finally, ignoring the jury's unequivocal rejection of her office's prosecution, Ms. Leitess repeated Mr. Dunty's unavailing argument that Detective Walker "chose to engage in a road rage incident with Joe Harvey." Incredibly, Ms. Leitess then repeated the baseless allegation that "witnesses said that [Harvey] stopped and put his hands up before he was shot two more times."

Such callous and misleading prosecutorial conduct can succeed when not vigorously contested, and the impact can be terrifying. This time, however, in an Annapolis courtroom, justice prevailed.

Steven H. Levin and Charles N. Curlett Jr. are members of Levin & Curlett LLC, a white collar litigation boutique with offices in Baltimore, Washington, D.C. and Manhattan. Their emails are and Michael T. Cornacchia is a Manhattan-based criminal defense attorney; his email is

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