At least for now, the Ryan Frederick Case will remain in Chesapeake.
I attended the rescheduled hearing today in Judge Marjorie Arrington’s court. The judge ruled that the trial would remain in Chesapeake unless it proves impossible to seat a jury when the trial begins in January.
Special Prosecutor Paul Ebert appeared to know that was coming and rambled on in his argument that bloggers appearing as sources on television had poisoned the atmosphere in Chesapeake. More on the real effect of blogging on this case in a later, separate post.
There were other motions to be decided, including discovery issues, the identity of the informant, and a challenge to the initial search warrant.
There were two unresolved areas of discovery, the process in which the prosecution is required to reveal evidence which may support the defense’s case, one being the identity of the confidential informant. This issue was resolved between the prosecutor and defense attorney James Broccoletti. The identity of the informant was revealed to the court and the defense in a sealed document, but was not made public nor was it made available to the press. Of course, we think we know who he/they are, but this allows the prosecution and police to still not admit it. However, the defense can now take a sworn statement from the informant which may be of some use to them in other motions.
One area of discovery still in dispute relates to a later search of Frederick’s home on March 20, 2008. In that “search” the police made measurements, took pictures, and and videotaped a re-enactment of the raid and shooting. The prosecution has maintained that these results are not subject to discovery. The defense maintains that because they are results of a search warrant and because the prosecution maintains that Frederick knew police, rather than burglars, were outside his home, they are.
The police have given conflicting statements as to how many police were there and where they were, so knowing exactly where everyone was standing and what Frederick could, and could not, have seen from where he was is vitally important in determining the truth of what happened.
Judge Arrington requested memos form both sides and will rule on Dec. 5th.
Broccoletti had asked that the results of the initial search warrant be suppressed, on grounds that the warranthad been obtained by misleading the issuing magistrate by not telling the informant had been on Frederick’s property committing a felony(burglary). This is one of those areas where law and common sense part company.
Apparently the guiding law on that issue is a Supreme Court decision in “Frank vs. Delaware” which allowed for a hearing with sworn testimony if the defense can prove the officer obtaining a warrant defrauded the issuing judge. However, the burden of proof in this case is on the defense, which must prove without the benefit of questioning the officer who obtained the warrant that he knowingly lied to obtain the warrant. That is very difficult to accomplish when you can’t even get sworn testimony from the officer and the identity of the informant has been withheld.
It is not enough that the warrant was issued based on a burglary, it would have to be proved that the officer who got the warrant knew that was the case. It is OK if the informant lies to the police, the warrant would still be valid.
So, without questioning Det. Kyle Roberts, who obtained the warrant, or the up to this point, unconfirmed informant, Broccoletti would have had to be able to prove strictly from statements made in court by the prosecutor that Roberts knew the informant had burglarized Frederick’s garage at the time he obtained the warrant. Though that may eventually prove to be the case, Prosecutor Conway had not quite said that at the last hearing. Arrington ruled that Broccoletti had not accomplished that as yet, but left open throwing out the warrant later on, in the course of the trial, if proof that Roberts misled the magistrate surfaces. Of course, by that time, the jury will have seen the results of the warrant and would just be told to disregard what they knew.
One odd note: When Judge Arrington paraphrased what Conway had said in her decision, Conway interrupted her to correct her on his exact wording. That raises suspicions that he had chosen hos words very carefully to mislead without actually lying in court. I will be watching that Clintonesque parsing of words very carefully as this unfolds.
One personal observation I would offer is that Frederick, who stands to spend his youth in prison if convicted, and his attorney, seemed relaxed and confident, while the prosecutors seemed weary and worried as though they were the ones with a great weight on their shoulders.
I like to think I have played a small part in that.