No theatrics: Actors can’t perform 1992 Baltimore trial for civil suit jury, judge rules

Paid actors won’t be allowed to reenact portions of a 1992 murder trial in court for a civil jury charged with deciding whether Baltimore Police are liable for violating the now-exonerated defendant’s right to due process.

U.S. District Judge Stephanie A. Gallagher handed down her ruling at the outset of Clarence Shipley Jr.’s civil trial. Shipley, who was convicted of murder and served 27 years in prison before a judge found him innocent in 2018, had sought the use the actors to read trial transcripts after attorneys were unable to agree about instead summarizing the state court testimony, which Gallagher had previously said would’ve been her preference.

“Use of retained actors creates ample potential to distract from the actual evidence (the transcripts themselves) and to introduce issues about credibility, likability, demeanor, or intonation of the readers that will infect the presentation of transcript evidence,” Gallagher wrote in an order last week, saying she was “inclined to reject” the proposal to have actors read the 1992 trial testimony.

She formally rejected the proposal Monday, the first day of trial, said Shipley’s attorney, Kobie Flowers of Flowers Keller LLP.

Courts generally rely on live testimony at trial, but certain transcripts of proceedings and depositions are typically read out in court by attorneys or their staff if a witness is deceased or otherwise unavailable. Although attorneys sometimes use actors behind the scenes to rehearse high-stakes matters, some litigants have also turned to hiring them for trial testimony, often under the assumption that actors are better at keeping jurors’ attention. Some firms have even leveraged connections to the entertainment industry to make it a side business.

In Shipley’s case, attorneys said in a status report last week that the plaintiff had “hired four actors to read the relevant portions of the transcripts to the jury.” They described a potential stage plan, including the actor playing the witness being seated in the witness stand while other actors playing the prosecution or defense reading from the podium.

The exoneree’s lawyer believed that the dynamic would “better recreate what the original jury heard” and make it easier to follow. The defendants, who are represented by the city’s law department and attorneys from Chicago-based Nathan & Kamionski LLP, did not object.

Shipley, 54, was convicted of murder, robbery and firearms offenses in 1992 and sentenced to life plus 20 years for the killing of Kevin Smith, 29, in Baltimore’s Cherry Hill neighborhood. Helped by the Mid-Atlantic Innocence Project and the Office of the Public Defender, he and then-Baltimore City State’s Attorney Marilyn Mosby’s administration filed a joint petition for a writ of actual innocence, which a Baltimore judge granted in 2018.

Shipley, who had maintained his innocence since his arrest, had served 27 years in prison before his release.

He filed the civil lawsuit in 2021 against the Baltimore Police Department and several officers who investigated the homicide, alleging they violated his right to due process by fabricating evidence and concealing exculpatory notes.

One of the state’s key witnesses, Smith’s brother, had called police the morning after the homicide and said the killer was a man named Larry Davis, though a note memorializing that call was never provided to prosecutors or the defense, according to the complaint.

The lawsuit also alleges that officers beat and coerced an 18-year-old to make statements placing Shipley at the scene; that witness has since recanted his testimony.

Attorneys representing the three officers did not return requests for comment, and a Baltimore Police spokesperson said Monday that the department doesn’t comment on pending litigation.

At the present trial, Shipley’s attorney is seeking to convince the jury that three ex-officers are liable for punitive damages for violating Shipley’s constitutional rights and that they and the department are liable for compensatory damages.

In addition to alleging that the fabrication of testimony caused his loss of liberty and continuing emotional distress, Shipley’s complaint also says the officers failed to intervene and prevent his rights from being violated, and that his injuries stemmed from a pattern of “illegal policies and practices” at the department. It also seeks for the department to indemnify the officers for any judgement against them.

Jury selection began Monday morning and continued into the afternoon in U.S. District Court for Maryland. The trial is set to conclude by July 24.

This story has been updated.