After spending most of Tuesday deciding what evidence could be part of the first-degree murder trial of Baltimore police officer Gahiji Tshamba, Judge Edward R.K. Hargadon learned that he, not a jury, would also be deciding the ultimate evidentiary question: Tshamba’s guilt or innocence.
Even though Hargadon sided with prosecutors on the majority of pretrial motions, lead defense lawyer James L. Rhodes felt his client would get a fairer shake from the judge than from a panel of city residents.
“I believe the state’s case will be based purely on emotion,” Rhodes said, alluding to the conventional wisdom that a judge is better able to segregate proof from hot air.
And then there’s Tshamba’s profession, which can be a polarizing one among potential jurors.
“It’s Baltimore City, so … ” Rhodes trailed.
The identity of the fact-finder was just one of the important variables solved on the eve of the much-anticipated trial, which is scheduled to begin Wednesday morning in Baltimore City Circuit Court.
The trial, expected to last a couple of weeks, will intersect with the one-year anniversary of the June 5 incident, which allegedly began when Tyrone Brown touched Tshamba’s female companion outside a Mount Vernon nightclub and ended moments later when the officer shot the former Marine nine times with his service weapon.
Tshamba has claimed he responded in his role as a police officer. The prosecution wants to introduce evidence that he had been drinking.
After hearing argument on at least a half-dozen motions Tuesday morning, Hargadon ruled that Tshamba’s refusal to take a Breathalyzer test in the hours after the early-morning shooting will be admissible at trial. Rhodes had argued the defendant officer’s choice shouldn’t be held against him, but Assistant State’s Attorney Kevin Wiggins said Tshamba’s refusal “suggests that he was, in fact, drinking” and therefore not following proper police procedure when he fired his weapon.
Hargadon also ruled that the officer who drove Tshamba to the hospital after the shooting, Laron Wilson, could testify about the defendant officer’s apparent intoxication, even though Wilson made no mention of the defendant’s glassy eyes or scent of alcohol until recently. (Another officer, Eric Russell, also noticed Tshamba’s eyes and slurred speech and reported it more promptly, Hargadon noted.)
Hargadon also will allow a bullet trajectory expert to testify concerning what his lab results say about how and where Tshamba fired his Glock pistol.
While Hargadon left the prosecution’s presentation largely intact, he limited the defense’s expert testimony.
The judge ruled that a Dateline NBC television segment featuring police practices expert Charles J. Key, which he watched over Tuesday’s lunch break, would not be considered during the trial. In the video clip Key is holding a knife as he demonstrates how quickly an assailant could reach an officer. Brown, 32, was unarmed when he was shot in the alley off East Eager Street.
Hargadon also ruled that Key could not testify based on Tshamba’s version of what happened at the scene unless Tshamba, 37, took the stand and subjected himself to cross-examination.
But the lone defense victory could loom large: Hargadon found that any privilege concerning Brown’s extensive mental health records had been waived.
The judge did not say the voluminous records were admissible, but if they are, Hargadon will have to weigh accounts of what happened June 5 against Brown’s previous confessions of violent behavior.
Brown, an East Baltimore native, joined the Marines in 1997 and served in Kosovo and Iraq.
His medical records, according to Rhodes’ co-counsel, Adam Sean Cohen, are “very telling” and show “the forces the victim was contending with, the issues that he was contending with.”
According to the court file, Brown was arrested for disorderly conduct in 2005 and for marijuana possession in 2008. The medical records, Cohen said, show much more of the same. There, Cohen said, Brown admitted to throwing a knife at his ex-wife, beating up a relative and quitting a job because he was worried he would hit his employer.
Tshamba, who is in protective custody, attended Tuesday’s hearing wearing glasses and a dark suit and gold tie; his family and friends sat behind him in the courtroom gallery.
Brown’s family, which also attended the hearing, filed a megamillion-dollar civil suit against Tshamba and the police department in January, citing a September 2005 incident in which Tshamba shot a man in the foot while he was intoxicated.
It also remains to be seen whether Hargadon will accept Wiggins’ suggestion, which Rhodes did not oppose, that he visit the crime scene.
“I’m hoping that he will do that,” Rhodes said.