Top court reviews denial of video footage for closing arguments

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ANNAPOLIS – In this high-tech age, trial judges should be required to permit defense counsel during closing argument to replay trial testimony via video unless it would be too time consuming or mislead the jury, a defense attorney said Wednesday in urging Maryland’s top court to overturn a Baltimore police officer’s conviction for shooting an unarmed man.

The judge’s rejection of a request for video replay of the eyewitness testimony denied now-former officer Wesley Cagle a fair trial because the video would have provided a more accurate and compelling depiction than defense counsel reading from the trial transcript, attorney Chaz R. Ball told the Court of Appeals.

“This is a case of technology outpacing the (Maryland Judiciary) rules,” said Ball, of Schlachman, Belsky & Weiner P.A. “In sports, we have an opportunity for a replay. Let the jury get and listen to the evidence.”

Cagle’s counsel had argued at trial the video was necessary to highlight for the jury inconsistencies in the testimony of eyewitnesses, including that of victim Michael Johansen. But Baltimore City Circuit Judge Wanda K. Heard rejected the argument, saying the video would leave jurors with the impression some witnesses were more important than others.

Appearing before the high court, Assistant Maryland Attorney General Carrie J. Williams said Heard validly exercised judicial discretion in prohibiting the video. Permitting snippets of testimony at closing would have confused the jury and been matched by snippets from the prosecution that would have only added to the confusion, said Williams, who heads the attorney general’s criminal-appeals division.

Trial judges have discretion to prevent such a “battle of the excerpts,” she told the Court of Appeals.

During the argument session Wednesday, judges on the seven-member high court appeared divided on the breadth of judicial discretion.

Judge Joseph M. Getty stuck with the sports theme Ball introduced, saying a trial judge could bar such “an instant replay of trial testimony” because it would be “an entirely different leap” than the evidentiary recap historically permitted during closing arguments.

Judge Sally D. Adkins said a trial judge can have a general rule against prohibiting video replays of trial testimony so long as he or she is willing to make exceptions in appropriate cases. Judge Michele D. Hotten said judicial discretion includes the conduct of closing arguments.

But Judge Robert N. McDonald and Chief Judge Mary Ellen Barbera said trial judges should be more attune to the times and perhaps treat video replays during closing arguments in the same way they permit defense counsel and prosecutors to show jurors physical evidence that was introduced at trial.

McDonald joked that “in the old days, before video,” prosecutors and defense counsel would routinely read back trial testimony to the jury.

Barbera said technology has advanced, so trial judges must be receptive to permitting video replays during closing arguments. To illustrate her point, the chief judge noted the high court’s argument sessions are streamed live and recorded for future viewing.

Inconsistent testimony

Cagle’s trial counsel sought to show video of Johansen’s in-court testimony to illustrate how it allegedly differed from what he had earlier told police. The defense attorney also wanted to show video of the testimony of officers Kevin Leary and Isiah Smith, who Cagle alleged were more culpable in the shooting of Johansen at about 4 a.m. on Dec. 28, 2014.

According to prosecutors, the officers were responding to a silent alarm from a convenience store on East Monument Street when they saw Johansen running from the building. Johansen was shot when he reached toward his waistband after being ordered to show his hands, prosecutors said, adding that Johansen was lying injured in the building’s doorway when Cagle shot him.

Cagle was convicted of first-degree assault and using a firearm in committing a felony or crime of violence. He was sentenced to 12 years in prison.

The intermediate Court of Special Appeals affirmed Heard’s decision prohibiting the video, saying the judge provided a fair trial by allowing Cagle’s defense counsel to refer, summarize, restate and draw the jury’s attention to the testimony during closing argument.

Cagle then sought review by the Court of Appeals. The high court is expected to render its decision by Aug. 31 in Wesley Cagle v. State of Maryland, No. 39, September Term 2018.