Judge Arrington denied two defense motions and handled a procedural matter regarding jury selection.
The first motion was on a request by the defense for a videotape of a police recreation of the raid recorded under a search warrant executed last spring. The Defense contended that it is entitled to anything produced under a search warrant. The Prosecution that the videotape is not evidence, and cannot be used at trial, and is merely an internal aid to the prosecution in understanding how things occurred and thus not subject to disclosure. Judge Arrington agreed with the Prosecution and allowed them to withhold the tape. She did point out that the Defense could conduct its own reenactment, but how that could be accomplished without the cooperation of the police is difficult to imagine. It is also difficult to imagine an innocent reason for the Prosecution to want to obscure from the Defense the positions and actions of the police as the incident unfolded.
There is no public purpose in securing a conviction whether a defendant is guilty or not. It makes no sense to conceal from the defense, or the public at large, the simple facts of the case such as the number and positions of the police. That may perhaps be to the Prosecutions advantage but it does not serve justice. This is not a game.
Judge Arrington also declined to reconsider her earlier decision to not hold a hearing with testimony on the validity of the initial search warrant. This is apparently one of those places where the rules of evidence and sanity diverge.
At issue is whether the police knew that their informant gathered his alleged information by committing the crime of burglary at the time the warrant was obtained. A hearing can only be held prior to trial if some evidence of this police wrongdoing is before the court. At the prior hearing, the Prosecution’s statements which seemed to confirm that the information was obtained by burglary was seen as insufficient reason for a hearing because the Prosecution claimed they were not so informed until after the raid.
However, at the time of Frederick’s arrest, he spoke to detectives in the police car and that conversation was recorded. In that conversation Frederick said he had been burglarized three days earlier, and the police are on the tape telling Frederick they already knew of the burglary. Since Frederick had not reported the burglary, the logical assumption is that the police could only have learned of the burglary from their informant. That, however, was not enough for the judge, since it does not prove the police knew their informant was the burglar when the warrant was obtained. Keep in mind that the judge knows who the informant is, though that has been withheld from the public, but since there has not yet been testimony as to when the police knew these details, she holds that there is not cause to hold a hearing to determine when they knew.
Of course, when it comes time for the police to testify at trial, those questions can be asked, and the warrant excluded at that time if testimony indicates the police did, indeed, know it was their informant who burglarized Frederick’s garage, but by then, the jury will have heard things they will not be able to un-hear.
In the course of the discussions of this motion, the Prosecution mentioned an article from the VA Pilot in which Richard Turnbull, one of the alleged burglars made some statements to reporter John Hopkins to the effect that the burglary was done with police knowledge. The Prosecution then asked that Hopkins be removed from the courtroom to avoid tainting potential testimony from him, though he is not on either the Prosecution or Defense witness lists. The judge agreed and Mr. Hopkins was ordered to leave. He was not amused.
We then learned, in response to a question by the defense, that the alleged marijuana plants which were claimed to have been removed from the garage in the burglary were not turned over to the police, and have not been verified to have even been marijuana or even to have existed at all.
No plants were recovered at the time of the raid.
Beyond those motions, there was negotiation over juror questionnaires and little else of importance.
I did speak to a policeman, who did not give his name but claimed to have been there, regarding press and blog coverage so far. As to be expected, he was somewhat defensive and unhappy over it.
I understand those feelings. These guys are hurting. One of their own was killed, and each of them knows it could have been them instead. There has to be a lot of survivor guilt and anger swirling around in them. I think also the realization that the policies they followed played a large part in Det. Shiver’s death is beginning to sink in. All that has to be hard to deal with.
Still, these questions have to be asked, and if the trust we formerly enjoyed in our police is to be restored, they must be answered. We need to know why they thought such a violent method of serving a warrant was proper for a non-violent suspect, if they have reconsidered that choice, and if their procedures will change as a result. No one expects the police to be infallible. But we do expect them to concede when mistakes are made and tell us what they will do to avoid them in the future. After all, the greatest tragedy here is the death of a good man, and it is a true dishonor to him if we let it happen again because we do not learn from his loss.