STATE OF MARYLAND

v.

JOSEPH LAMONT WALKER *

* * * * * * * * * * *

IN THE CIRCUIT COURT OF MARYLAND FOR ANNE ARUNDEL COUNTY Case Number: 02K13001392

* * * * * * * * * * * * * * * * * * * * * * * * * * * MOTION TO DISMISS THE INDICTMENT BECAUSE IT WAS OBTAINED BY PROSECUTORIAL MISCONDUCT Detective Joseph Lamont Walker (Det. Walker), by and through his attorneys,

moves this Honorable Court for a dismissal of the Indictment and as grounds therefore states as follows: The prosecutor committed misconduct by: 1) knowingly presenting materially false testimony to the Grand Jury thereby impairing its integrity and prejudicing Det. Walker; 2) repeatedly characterizing the decedent as the victim, thereby invading the province of the Grand Jury whose role it was to make that very determination; and 3) intentionally concealing from, and failing to present to, the Grand Jury significant material facts relevant to its inquiry. These material facts include, but are not limited to, Det. Walkers statement to law enforcement that he had feared for his life and the lives of his family; the decedent and his co-actor had been drinking heavily for several hours prior to their confrontation with Det. Walkers family, a confrontation the decedent initiated both by his threatening words and his aggressive actions; and Det. Walkers wife called 911 for emergency assistance prior to the shooting. Due to the irreparable

prejudice to Det. Walker, the appropriate remedy is dismissal of the Indictment.

A Memorandum in Support of this Motion to Dismiss the Indictment is filed herewith and expressly incorporated herein. WHEREFORE, Det. Joseph Lamont Walker respectfully requests that this Honorable Court: 1) Dismiss the Indictment; or, in the alternative, 2) Grant such further relief as justice and the nature of this cause require. Respectfully submitted,

______________________ Charles N. Curlett, Jr. Steven H. Levin LEVIN & CURLETT LLC 201 N. Charles Street Suite 2000 Baltimore, Maryland 21201 410-685-4444 Michael T. Cornacchia 260 Madison Avenue 22nd Floor New York, New York 10016 646-278-4297 Pro Hac Vice Attorneys for Joseph Lamont Walker ! ! !

Certificate of Service
!"#$ day of February, 2014, a copy of the I HEREBY CERTIFY that on this ___ foregoing Motion to Dismiss the Indictment Because It Was Obtained by Prosecutorial Misconduct and accompanying Memorandum in Support thereof were hand delivered to the Office of the States Attorney for Anne Arundel County.

______________________ Charles N. Curlett, Jr.

!STATE OF MARYLAND

v.

JOSEPH LAMONT WALKER * *

* * * * * * * * * * *

IN THE CIRCUIT COURT OF MARYLAND FOR ANNE ARUNDEL COUNTY Case Number: 02K13001392

* * * * * * * * * * * * * * * * * * * * * * * * * *

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS THE INDICTMENT BECAUSE IT WAS OBTAINED BY PROSECUTORIAL MISCONDUCT

Charles N. Curlett, Jr. Steven H. Levin LEVIN & CURLETT LLC 201 N. Charles Street Suite 2000 Baltimore, Maryland 21201 410-685-4444 Michael T. Cornacchia 260 Madison Avenue 22nd Floor New York, New York 10016 646-278-4297 Pro Hac Vice Attorneys for Joseph Lamont Walker

TABLE OF CONTENTS TABLE OF AUTHORITIES. 3 EXHIBITS..5 FACTS... 6 THE GRAND JURY PRESENTATION... 11 LEGAL ARGUMENT... 21 I. This Honorable Court Should Dismiss The Indictment Which Was Obtained As A Result Of Prosecutorial Misconduct Before The Grand Jury......................................................................................21 A. II. III. The prosecutor and the trooper presented materially false information to the Grand Jury... 21

The Prosecution Invaded The Province Of The Grand Jury And Thereby Violated Detective Walkers Fifth Amendment Rights.. 24 This Honorable Court Has The Inherent Supervisory Power To Dismiss The Indictment. 27

CONCLUSION...... 30

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TABLE OF AUTHORITIES CASES Whitehouse v. United States District Court for the District of Rhode Island, 53 F.3d 1349, 1356 (1st Cir. 1995).21 United States v. Strouse, 286 F.3d 767 (5th Cir. 2002)...21 Bank of Nova Scotia v. United States, 487 U.S. 250 (1988) . 21, 27 United States v. Basurto, 497 F.2d 781 (9th Cir. 1974)..22-23, 29 Baltimore Belt R.R. v. Baltzell, 75 Md. 94, 99, 23 A. 74 (1891)... 22 Dept. of Transportation v. Armacost, 299 Md. 392, 474 A.2d 191 (1984)... 22 Pitsenberger v. Pitsenberger, 287 Md. 20, 410 A.2d 1052 (1980) .............. 22 Barry Properties v. Fick Bros., 277 Md. 15, 22, 353 A.2d 222 (1976).22 Bureau of Mines v. George's Creek, 272 Md. 143, 321 A.2d 748 (1974) 22 Clark v. State, 364 Md. 611, 644, 774 A.2d 1136, 1155 (2001). . 22 United States v. Samango, 607 F.2d 877, 882 (8th Cir. 1979)... 23 Communist Party v. Subversive Activities Control Board, 351 U.S. 115, 76 S.Ct. 663 (1956) 23 Stirone v. United States, 361 U.S. 212, 80 S. Ct. 270, 4 L. Ed2d. 252 (1960).. 25 U. S. v. Field, 875 F.2d 130, 133 (1989)....25 U.S. ex. rel. Toth v. Quarles, 350 U.S. 11, 76 S. Ct. 1,100 L. Ed. 8 (1955).. 25 Cook v. Singer Sewing Mach. Co., 138 Cal.App. 418, 32 P.2d 430.. 26 Sheldon v. United States, 53 F.3d 1349, 1356 (1st Cir. 1995)27! United States v. Williams, 504 U.S. 36 (1992).. 27 State v. Deleon, 143 Md.App. 645, 795 A.2d 776, (2002) 27 United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983)... 28

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United States v. Brockington, 849 F.2d 872 (4th Cir.1988).. 28 United States v. Kojayan, 8 F.3d 1315 (9th Cir. 1993)... 28 United States v. Bernal-Obeso, 989 F.2d 331 (9th Cir. 1993)29 United States v. Santana, 6 F.3d 1, 10 (1st Cir. 1993)29 United States v. Gallo, 394 F. Supp. 310, 315 (D.Conn. 1975).29 United States v. Guillette, 547 F.2d 743 (2d Cir. 1976).29 United States v. Udziela, 671 F.2d 995 (7th Cir. 1982).. 29 CONSTITUTIONAL PROVISIONS U. S. Constitution, Fifth Amendment 22, 24, 26 U. S. Constitution, Fourteenth Amendment...22 Maryland Declaration of Rights, Article 24...22 OTHER AUTHORITIES ABA Criminal Justice Section Standards, Prosecution Function...25 Maryland Rules of Professional Conduct...26 Blacks Law Dictionary..26 Serving on a Maryland Grand Jury, Maryland Judiciary, Jury Use and Management Committee...30! !

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EXHIBITS Exhibit A Exhibit B Exhibit C Exhibit D Exhibit E Exhibit F Exhibit G Exhibit H Exhibit I Exhibit J Exhibit K Exhibit L Transcript of Statement of Adam Pidel Transcript of Statement of W.P. Transcript of Adam Pidels 911 Call Transcript of Elaine Walkers 911 Call Maryland State Police Supplemental Report Maryland State Police Diagram of Scene Transcript of Statement of J.M. and W.M. Transcript of Statement of R.W. Transcript of Statement of M.W. Transcript of Statement of F.M. Autopsy Report Excerpt Transcript of the Grand Jury Proceeding

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FACTS1 On the evening of June 9, 2013, Detective Joseph Walker (Det. Walker), a Detective with the Office of the Prosecutor for Hudson County, New Jersey, was returning to his home in New Jersey from Odenton, Maryland. He was driving in his family minivan with his wife and three young children, then ages 3, 7 and 11. While making a left hand turn to enter onto a highway, the driver of another vehicle, Joseph Harvey (Harvey), allegedly perceived that Det. Walker had cut him off. (Exh. A at 17). In response, Harvey, who was white, pulled up alongside the passenger side of the minivan where Det. Walkers wife was sitting in the front right passenger seat. (Exh. A at 18). Harvey shouted obscenities, racial epithets and physical threats at Det. Walker and his family, all of whom are AfricanAmerican. (Exh. A at 34). Eventually, Det. Walker pulled off the road in an effort to let Harvey drive away and abruptly came to rest on the shoulder. (Exh. B at 12; Exh. E at 4). Harvey also pulled over, stopping 164 feet ahead of the Walkers minivan. (Exh. F). Harvey was accompanied by a friend, Adam Pidel (Pidel), who was riding in the front passenger seat of Harveys car. (Exh. A at 17-18). Once stopped, Harvey and Pidel, who had both been drinking for several hours at a local restaurant and were en route to a local bar, stepped out of Harveys vehicle and quickly advanced on the Walkers minivan. (Exh. A at 8-9, 34; Exh. B at 5, 6, 12). Det. Walker stepped out of his minivan and remained by his family as the men charged him, traversing nearly the entire distance between the vehicles. (Exh. B at 14). Det. Walker !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! '!The material facts set forth in this Memorandum are based upon the discovery provided by the State. While the defense will contest certain facts at trial, the material facts are presented here as they were known or relied upon by the State at the time the case was presented to the Grand Jury, which knowledge provides the basis for the prosecutorial misconduct alleged in this motion. ! &!

drew his service weapon. (Exh. A at 22). Det. Walker displayed his badge and identified himself as a police officer, telling Harvey and Pidel to just go away. (Exh. E at 4). Pidel told the 911 operator and later confirmed to the Maryland State Police that Harvey was going to fight Det. Walker. (Exh. C at 8; Exh. A at 33, 52, 76). As this was occurring, Det. Walkers wife called 911 for help. (Exh. D at 1). When Harvey and Pidel continued advancing towards him, Det. Walker discharged his weapon, striking Harvey, whose body was found by the Maryland State Police no more than 6 feet from the Walkers minivan. (Exh. F). Pidel was unharmed. After local law enforcement officials arrived at the scene, Det. Walker gave a statement to them in which he described Harveys actions, and his own reactions. (Exh. E). Det. Walker also explained that immediately prior to shooting Harvey, he feared for his life and the lives of his family. (Exh. E at 4). After the incident, but prior to the Indictment, the Maryland State Police took over the investigation and interviewed Pidel and six other individuals who had been passing by the scene in their automobiles and had reportedly observed portions of the events on June 9, 2013.2 In his interview, Pidel said that it was clear that Harvey pulled his vehicle over on the shoulder to fight, rhetorically asking, Why else would he be doing that? (Exh. A at 33, 77). Pidel admitted that Harvey was angry at Det. Walker. (Exh. A at 34). Harvey was yelling f--- you, was screaming at him to pull that mother f----- [the minivan] over, and calling him a n-----. (Exh. A at 34). Once Harvey stopped his car, Pidel said Harvey exited the car and walked quickly toward the Walkers minivan while throwing his hands !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! "!We refer to these witnesses by their initials and have redacted their names and identifying information from the transcripts to protect the witnesses identities. Pidel has already been identified in court filings and media reports. All interviews were recorded by the Maryland State Police and summarized in written reports.! ! (!

up. (Exh. A at 37). Pidel stated that Harvey and Det. Walker exchanged words but he could not hear what they said. (Exh. A at 35). As Harvey and Pidel advanced toward the Walkers minivan, Pidel said he saw a gun in Det. Walkers hand, pointed downward. (Exh. A at 41). Pidel stopped advancing and reached for his phone. (Exh. A at 23). Pidel said he heard a pop and Harvey remained standing. (Exh. A at 23). Pidel then heard more pops and Harvey fell straight down. (Exh. A at 24). When asked if he could calculate the time between seeing Det. Walker with the gun and the pop, Pidel said seconds. (Exh. A at 68). When asked if he could calculate the time that elapsed between the first pop and other pops Pidel answered some seconds four or five seconds. I mean, I cant --, and then conceded, My mind was absolutely elsewhere at that point. (Exh. A at 47). Pidel, who had known Harvey for years, described him as a big dude, rowdy, and definitely the kind of guy that would finish a fight. (Exh. A at 49). Pidel said that Harvey approached the Walkers minivan ready for a fight. (Exh. A at 77). One witness, W.P., described Harvey and Pidel as aggressive and Harvey as the provoker. (Exh. B at 5, 11). W.P told the police that Harvey was giving them [the Walkers] the finger and all this other crap and telling them to pull over. (Exh. B at 5). Asked if Det. Walker responded in a similar manner, W.P. stated, No. He was just driving. (Exh. B at 18). Once they exited their vehicle, W.P. described Harvey and Pidel as appearing to be on a mission, basically . . . ready to fight. (Exh. B at 6). W.P. said that Harvey had a chance to go, but he did not and was the provoker. (Exh. B at 11). W.P. said that while Harvey and Pidel were moving fast toward the Walkers minivan, W.P. described Det. Walker as standing by the minivan in an apparently calm manner which W.P. characterized as Det. Walker just wanting peace. (Exh. B at 15). W.P. stated that Harvey

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and Pidel appeared to be getting ready. . . to start a fight. (Exh. B at 14, 15). W.P. heard a shot but did not witness what occurred immediately prior to hearing the shot, or the shooting itself. Another witness, J.M., described Harvey as a stocky, big guy. (Exh. G at 8). J.M. said it looked like his [Harveys] hands were clenched and like in a pissed off manner [as he] was heading towards [the Walkers] like he wanted to confront them. (Exh. G at 8). J.M. said that Harvey approached the Walkers minivan in an aggressive attitude . . . like he was ready to rumble. (Exh. G at 11-12). J.M. said that both Harvey and Pidel approached the minivan together in a faster-paced walk. (Exh. G at 12). J.M. said that the last thing he saw as he passed by the scene was Det. Walker reach into the minivan as Harvey and Pidel approached. (Exh. G at 8). However, J.M. did not see if Det. Walker took anything out of the van. (Exh. G at 8). J.M. did not see a gun or the shooting itself or what happened immediately prior to the shooting. J.M.s wife, W.M., stated that she saw Det. Walker step out of his minivan, cross his arms, and do like a head nod kind of thing. And then we saw two gentlemen in the car in front get out and start approaching the man at the minivan. (Exh. G at 3, 6). W.M. described Det. Walker as a very large African American man . . . looked like he was bald, very large, 65, 66, somewhere around there probably. (Exh. G at 4-5).3 W.M. described Harvey as having a stocky, blown-up chest walk. (Exh. G at 7). W.M. lost sight of the scene when Harvey and Pidel were approximately halfway to the Walkers minivan. (Exh. G at 7). W.M. did not see the shooting itself or the events immediately prior to the shooting.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! #!Det. Walker is actually 5 feet 11! inches and weighs about 210 lbs.!! ! *!

Still another witness, R.W., observed Harvey walking towards Det. Walker probably about 50 feet from the minivan. And he was walking in an aggressive manner, gesturing. (Exh. H at 3). R.W. stated that when I see a guy approaching another guy, doing that kind of body language, it wasnt going to end good. (Exh. H at 3). R.W. saw Det. Walker standing next to the minivan as Harvey approached. (Exh. At 6). He (Det. Walker) wasnt moving towards the guy, as if Det. Walker was waiting. (Exh. H at 11). The last thing R.W. observed was Harvey grabbing his right pant leg in a strange manner when Harvey was about 50 feet from the minivan. (Exh. H at 4, 12). M.W., R.W.s wife, who was driving in a different car, stated that she observed Harvey walking towards Det. Walker. (Exh. I at 3). M.W. stated that she saw (Det. Walker) raise his arms up in a position that you see on television or in a gun safety thing. (Exh. I at 3). M.W. looked back at Harvey, and he he had stopped and brought his arms up to the side. . .and then I heard the two shots fired, and I saw the man fall to the ground. (Exh. I at 3). Asked how far apart Harvey and Det. Walker were when the shooting occurred, M.W. stated, About half the maybe half the distance between how telephone poles would be. . . maybe 40, 50 feet. (Exh. I at 10, 11).4 M.W. also described the time from when Harvey raised his hands to the time the shots were fired as instantaneous. (Exh. I at 14, 23). When the trooper nevertheless sought to establish that Harvey had put his hands up (But the hands did go up first), M.W. clarified, They went up to their side. Not up over. . . So

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! $!When M.W. was interviewed by the Maryland State Police, she drew a diagram of her observations of the scene. That drawing has not been produced in discovery despite repeated requests by the defense. That missing evidence, if not ultimately produced, will be the subject of a separate motion. ! ! '+!

his arms went up to about this point, not up like this, just like this. (Exh. I at 15).5 Persisting, the trooper asked, And I guess just again to clarify or just get a better understanding, when the guy was walking southbound, when he stopped, from the time he stopped until you heard the gunshots, how long was that? (Exh. I at 22). To which M. W. replied, Not even a second, just a split. He raised -- he stopped and raised his arms up to the side. And then it was boom boom. It was that quick. (Exh. I at 22). M.W. added that when Harvey raised his arms up, it was lower than shoulder level, not above his head. I cant say if his palms were out, but both of his arms were straight by his side. I cant say if his palms were fists or anything, but they did go up. It just it all happened so quick. (Exh. I at 23). Finally, F.M. arrived at the scene after the shooting occurred and observed Harveys body on the ground near the Walkers van. F.M. did not witness the shooting or the events immediately prior to the shooting. (Exh. J). An autopsy performed prior to the presentation to the Grand Jury determined that Harvey was legally intoxicated. (Exh. K). As the State and Maryland State Police knew, Harvey had been arrested for the felony assault of his girlfriend and Pidel had been convicted of the felony assault of his wife. THE GRAND JURY PRESENTATION On July 26, 2013, an Assistant States Attorney for Anne Arundel County (the prosecutor) sought an indictment against Det. Walker for Murder in the First Degree. During the course of the Grand Jury presentation, the States sole witness, a Maryland State

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! %!M.W.s physical demonstration was not otherwise described by M.W. or the trooper for the record.! ! ''!

trooper (the trooper), summarized the States version of events. (Exh. L at 3-8).6 On 31 occasions, the trooper described Harvey as the victim and testified that the medical examiner concluded that the manner of death was homicide. (Exh. L at 9). Moreover, the troopers testimony was replete with material misstatements and omissions and prejudicial comments. Set forth below are those statements and the basis for error. Statement #1: TROOPER: On this day [the day of the shooting], after having lunch, Mr. Pydel [sic] and the victim stopped at WaWa located at 701 Annapolis Road, in Gambrills, Anne Arundel County, Maryland. Which [sic] is at the corner of Maryland Route 3 and 175 to get energy drinks and 5-Hour Energy drinks. (Exh. L at 4:10-14). Error The States reference to Harvey and Pidel having lunch omitted a material fact critical for the Grand Jurys consideration, i.e., Harvey and Pidel had been drinking for at least four hours immediately prior to stopping at the WaWa. Harveys autopsy, which, as the prosecutor and trooper knew, was conducted 12 hours after the incident, revealed a blood alcohol level of .08 making him legally intoxicated under Maryland law. Harveys blood alcohol level may well have been higher at the time of his attack on Det. Walker. Statement #2: TROOPER: All witnesses indicated that the victim [Harvey] stopped walking when the handgun was displayed and one saw the victim put his hands out to the side with his palms toward Mr. Walker. (Exh. L at 6:21-24). !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! & The transcript is devoid of any preliminary remarks or charging instructions by the prosecutor who has represented to the defense that his charge to the Grand Jury was not transcribed. Therefore, to the extent the prosecutor charged the Grand Jury, such charge is not subject to the Courts review.! ! '"!

Error Following the troopers summary testimony, the jurors were permitted to ask questions. One juror apparently tried to focus on the precise dynamic at the time of the shooting. First, the juror asked that most of these witnesses you have are fairly well in agreement with the statement as you presented it? (Exh. L at 14:2-3). responded, simply, Yes. Id. The juror continued: JUROR: I have a couple of questions, if I may. So, I want to go back and make sure like when the shooting actually occurred what was going on. So, you said the victim was six to twelve feet away from the vehicle and the suspect, right? . . . TROOPER: At the time of the shooting? JUROR: At the time of the shooting. TROOPER: Correct. JUROR: And three shots. Do we know where the first shot hit? Struck the victim? TROOPER: We believe it is going to be thigh. JUROR: Thigh. And did he the victim fall on the ground, did he get up and approach like TROOPER: No. JUROR: What happened at that moment? TROOPER: When he was shot and the reason why we believe it is the thigh is based on the witness interviews. That once he was shot, after the first initial shot, he turned to the side and lifted a leg. And so, that is why we assume that it is going to be that the first shot. But there is no way of determining if that is actually the first one. He did not fall until after the two further shots. JUROR: Okay, so he never okay. (Exh. L at 14:15-15:13). The trooper

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But it appears that the prosecutor believed that the trooper had missed the point of the jurors question. The juror was less interested in the order in which the shots entered Harveys body than he or she was concerned with whether Harvey was continuing to pose a threat to Det. Walker. To put the issue to rest, the prosecutor intervened, but in doing so, he misrepresented the statements of the witnesses interviewed by the State Police. PROSECUTOR: But after the first shot, all the witnesses who have provided statements indicate that the victim,7 Mr. Harvey, was standing still and had his hands up in -- that type of gesture?8 TROOPER: Correct. PROSECUTOR: He was not advancing on Mr. Walker in any form or fashion? TROOPER: Correct. PROSECUTOR: Okay. JUROR: That is what I wanted to make sure. (Exh. L at 15:15-24. (emphasis added)). But this simply is not true, and it was known at that time not to be true. All the witnesses who provided statements did not state that Harvey had surrendered and was no longer advancing on Det. Walker in any form or fashion. In fact, only two witnesses said that Harvey stopped at some point while Det. Walker displayed his weapon, but the contradictions inherent in their statements make it wholly irresponsible for the State to conclude that the information was reliable. First, Pidel stated in his interview that Harvey stopped when he saw Det. Walkers gun. (Exh. A at 22). But Pidel also stated that Det. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! (!The prosecutor also liberally used the word victim to describe Harvey.! ! )!Although the prosecutor failed to describe his gesture so that it could be accurately captured in the record, a common sense reading of the transcript suggests that the prosecutor was making a surrender type gestureboth arms held above the head in an open-handed posture.! ! '$!

Walker reached into the minivan, which he assumed was to retrieve the weapon, when Harvey was half the distance towards the Walkers minivan. (Exh. A at 38, 40). That total distance is 164 feet. Yet Pidel also stated that Harvey was 6 to 8 feet from Det. Walker when Det. Walker pulled the gun. (Exh. A at 22). These contradictory statements were certainly not sufficiently reliable for the prosecutor and the trooper to allow testimony that every eyewitness was in agreement that Harvey stopped advancing when he saw a gun. Similarly, M.W. stated that the man walking south (Harvey) had stopped progressing in his walk. (Exh. I at 9). He was walking towards. But as the other man (Det. Walker) lifted his arms, he stopped. And the gentleman walking southbound raised his arms up to his side. . . And then I heard the two shots. And he just went down. (Exh. I at 9). Yet, M.W. is adamant that the time from when Harvey put his hands out to when the two shots were fired was instantaneous. (Exh. I at 14, 22, 23). Clearly, then, M.W. did not observe the first shot. If Pidel is correct that seconds elapsed between the first and second shots, then M.W.s statement establishes that Harvey kept walking after he was shot the first time. Thus, M.W.s testimony cannot be taken to mean that Harvey surrendered the first time Det. Walker pointed his gun at Harvey, as the trooper and prosecutor asserted before the Grand Jury.9 In fact, there is no evidence that Harvey ever surrendered. The prosecutor apparently relied on M.W.s observations to support the position that Harvey had raised his arms in surrender. But critically, M.W. stated it was lower than !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! *!Moreover, M.W. is the same witness who inaccurately described the 510, 299 lb. Harvey as not look[ing] huge. (Exh. I at 10). M.W. also estimated the distance between the men at the time of the shooting as maybe half the distance between how two telephone polls would be. (Exh. I at 10). M.W. elaborated that the man (Harvey) was enough back where even if he took a run at the gentleman and lunged, it would he was still far enough apart. (Exh. I at 10). Asked to put a number on it, M.W. ventured maybe 40, 50 feet. (Exh I at 11). This was clearly factually incorrect. (Exh. F).! ! '%!

shoulder level, not above his head. I cant say if his palms were out, but both of his arms were straight by his side. I cant say if his palms were fists or anything, but they did go up. It just it all happened so quick. (Exh. I at 23). The prosecutors basis for the testimony that Harvey held his hands up prior to the second and third shots derives from M.W. alone. Yet, that testimony is at best ambiguous and arguably favorable to Det. Walker. M.W.s description of Harveys actions is consistent with an individual who maintains a fighting posture.10 Certainly, whatever M.W. saw, or thought she saw, was sufficiently unreliable for the prosecutor to characterize Harveys actions as a clear and unconditional surrender corroborated by six other witnesses. Contrary to the assertion by the prosecutor that after the first shot, all the witnesses who have provided statements indicate that the victim, Mr. Harvey, was standing still and had his hands up in -- that type of gesture, a review of the statements of the remaining witnesses demonstrate the falsity of his statement, which the trooper adopted and endorsed. W.P., who characterized Harvey as the aggressor and Det. Walker as appearing to just want peace, said that he did not see what occurred immediately prior to hearing the shot or the shooting itself. J.M., who described Harvey as a stocky, big guy with clenched hands looking for a fight, stated that the last thing he saw was Det. Walker reach into the minivan. He did not see a gun, the shooting itself, or what happened immediately prior to the shooting. J.M.s wife, W.M., generally agreed with her husbands characterization but also did not see the shooting itself or the events immediately prior to the shooting. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! '+!Inexplicably, the trooper who interviewed M.W. did not describe for the recorded statement, or ask M.W. to describe, Harveys hand gestures.! ! '&!

R.W. described Harvey as motioning with his arms in an animated fashion as he aggressively approached Det. Walker. He said Det. Walker appeared to be waiting. The last thing he said he saw was Harvey grabbing his pant leg when Harvey was only half the distance from his car to the minivan. F.M. only arrived after the shooting. Notwithstanding the self-contradictory and internally inconsistent statements of Pidel and M.W., and the failure of the five remaining witnesses to observe the shooting itself, the prosecutor, in apparent desperation, and eager to obtain a charge of premeditated murder, improperly characterized the witnesses statements as all consistent on the point that Harvey had surrendered and stopped advancing on Det. Walker. Compounding this

intentional error, the prosecutor did so in response to a question by a juror that was asked specifically to explore whether the shooting may have been justified and whether Harvey was continuing to act aggressively towards Det. Walker. Statement #3: TROOPER: After the shooting Mr. Walker returned to his minivan. Mr. Pydel [sic] ran to the victim who is now lying on the shoulder of the roadway. Once Mr. Pydel [sic] reached the victim[,] the victim stated call the police. Mr. Pydel [sic] immediately called 911. (Exh. L at 7:8-12). Error This testimony misstated the account provided by Pidel who told the police that he reached for his phone to call 911 as soon as he saw Det. Walkers weapon. But more significantly, by presenting to the Grand Jury that Pidel called 911, while omitting that Det. Walkers wife had also called 911 as Harvey and Pidel charged towards the minivan, the

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prosecutor unfairly permitted the Grand Jury to draw the inference that Pidel and Harvey were victims while Det. Walker and his family were unconcerned aggressors. Statement #4: TROOPER: It was determined that Mr. Harvey, the victim, suffered three gunshot wounds .None of these wound [sic] showed evidence at being fired at close range. (Exh. L at 8:20-25). Error This statement is in stark contrast to the fact that Harveys body was found 6 feet from the Walkers minivan. (Exh. F). To suggest otherwise undermines the critical fact that Harvey traversed a distance of approximately 158 feet, during which time Det. Walker exercised total restraint and only discharged his weapon when he had no other recourse. Statement #5: JUROR: Did Mr. Walker say that he knew either of the victim [sic] or who he was with? TROOPER: Mr. Walker? JUROR: Yes. TROOPER: Mr. Walker did not make any statements. JUROR: No, I mean the Mr. Walker was the guy who PROSECUTOR: He is the suspect. JUROR: Right. He did not make any statements? PROSECUTOR: Well, let me ask it this way, Trooper, initially the Anne Arundel County Police were--responded on scene before the Maryland State Police, correct? TROOPER: Correct. PROSECUTOR: And it was at that time that Mr. Walker made an initial statement to an officer who arrived on the scene, correct? TROOPER: Correct.

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PROSECUTOR: And then once the investigation continued- - and during that statement Mr. Walker did not in any way indicate that he knew either the victim or Mr. Pydel [sic]? TROOPER: Right. PROSECUTOR: And then there came a time that he [Detective Walker] was given the opportunity to provide a more detailed statement to the Maryland State Police, correct? TROOPER: Correct. PROSECUTOR: And what was his decision on that? TROOPER: He wanted to refer to speaking with a lawyer before providing a statement. PROSECUTOR: And as you sit here today has a statement been provided by Mr. Walker? TROOPER: No. JUROR: Yeah, just because he was a police officer maybe there was some history in New Jersey or something, you know, and thenapparently not. So, he certainly had an opportunity to say thatif it was. (Exh. L at 12:613:17). Error Detective Walker had provided a statement to Corporal Robert Henry of the Anne Arundel County Police, Western District Station. Corporal Henry, in turn, disclosed the substance of that statement to the trooper on June 20, 2013, five weeks before the troopers Grand Jury testimony. Although the prosecutor later tried to clarify to the Grand Jury that Det. Walker had not made a statement to the Maryland State Police, at no time did the prosecutor disclose to the Grand Jury the substance of Det. Walkers statement to Corporal Henry specifically, that he feared for his life and the lives of his family members prior to shooting Harvey, and that Harvey had confronted him and threatened him.

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There was no reason for the prosecutor to gratuitously solicit the troopers comment about Det. Walkers failure to provide the Maryland State Police with a statement except to prejudice Det. Walker in violation of his Fifth Amendment rights. Statement #6: JUROR: I think that I may have read about this in the paper the other day. Did Mr. Walker have his family with him? TROOPER: Yes. (Exh. L at 14:11-14). Error In this instance, the prosecutor failed in his obligation, as legal advisor to the Grand Jury, to inquire into what information the juror had obtained outside the Grand Jury and failed to provide an immediate instruction that the juror or any other juror must disregard any such information. Prior to the Grand Jurys deliberations, the local media was replete with material misinformation as to the facts of the case. For instance, one story published originally in The Capital Gazette on June 10, 2014, quoted an early statement by Pidel in court records as having told investigators Harvey attempted to protect himself after the first shot. 11 Pidels initial claim, contradicted by Pidels later statement to the State police, was not presented to the Grand Jury. Therefore, its consideration by the juror would have been improper and prejudicial.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! ''!See http://www.capitalgazette.com/news/lawyer-motorist-fatally-shot-after-he-threatenedto-kill-cop/article_a286f956-1f51-55e3-8076-ec54874045d1.html?mode=jqm (last visited February 24, 2014). ! ! "+!

LEGAL ARGUMENT I. THIS HONORABLE COURT SHOULD DISMISS THE INDICTMENT WHICH WAS OBTAINED AS A RESULT OF PROSECUTORIAL MISCONDUCT BEFORE THE GRAND JURY.

A. The prosecutor and the trooper presented materially false information to the Grand Jury. The Grand Jury occupies a unique place in the American justice system. Whitehouse v. United States District Court for the District of Rhode Island, 53 F.3d 1349, 1356 (1st Cir. 1995). The Grand Jury does not belong to the executive branch, rather it acts as a buffer or referee between the prosecutor and the people. Id. at 1356. The knowing presentation of a prosecuting attorney of perjurious testimony to the grand jury to obtain an indictment is sufficient to warrant dismissal. United States v. Strouse, 286 F.3d 767 (5th Cir. 2002). Prejudice is demonstrated by a showing that the misconduct before the grand jury substantially influenced the grand jurys decision to indict or where there is grave doubt that the decision to indict was not substantially free from the misconduct. Bank of Nova Scotia, 487 U.S. at 256, 263. The knowing presentation of materially false testimony to the Grand Jury is precisely what occurred in Det. Walkers case. The testimony before the Grand Jury, as outlined in the GRAND JURY PRESENTATION section, supra, was part and parcel of the efforts of the prosecutor and trooper to improperly steer the presentation. The overwhelming evidence is that Harvey and Pidel charged at Det. Walker, who remained by the side of his family. Det. Walker ordered the men to stop; they did not. The purported surrender never happened. The trooper knew it. The prosecutor knew it. There was absolutely no truth to the prosecutors false assertion, which the trooper adopted and endorsed, that all the witnesses who have provided statements indicate that Harvey was

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standing still and had his hands up in -- that type of gesture. Of the six passersby interviewed, only one described, albeit in a very confused manner, the decedents arms being raised, and this is the same witness who misjudged the distance between Det. Walker and the decedent by approximately 34-44 feet at the time of the shooting. At no time did the State present evidence of the conflicting nature of the witnesses statements on precisely that point. Even Pidel, Harveys friend, does not support the suggestion that Harvey

surrendered. Stated simply, it was prosecutorial misconduct to present such material falsehoods to the Grand Jury. The presentation impaired the Grand Jurys function to Det. Walkers prejudice. Therefore, dismissal of the Indictment is required. The Due Process Clause of the Fifth Amendment is violated when a defendant has to stand trial on an indictment which the government knows is based partially on perjured testimony. United States v. Basurto, 497 F.2d 781, 785 (9th Cir. 1974).12 If an indictment is

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
'"!The

Maryland Court of Appeals long ago determined that the phrase, the Law of the land, mean[s] the same thing as due process of law as used in the Fourteenth Amendment of the U.S. Constitution. Baltimore Belt R.R. v. Baltzell, 75 Md. 94, 99, 23 A. 74, 74 (1891); see e.g. Department of Transportation v. Armacost, 299 Md. 392, 415-16, 474 A.2d 191, 202-03 (1984) (The due process clause of Article 24 of the Maryland Declaration of Rights and the fourteenth amendment to the federal constitution have the same meaning; and we have said that Supreme Court interpretations of the federal provision are authority for the interpretation of Article 24. (Citing Pitsenberger v. Pitsenberger, 287 Md. 20, 27, 410 A.2d 1052 (1980), appeal dismissed, 449 U.S. 807, 101 S.Ct. 52, 66 L.Ed.2d 10 (1980))); Pitsenberger, 287 Md. at 27, 410 A.2d at 1056 (same) (citing Barry Properties v. Fick Bros., 277 Md. 15, 22, 353 A.2d 222 (1976); Bureau of Mines v. George's Creek, 272 Md. 143, 156, 321 A.2d 748 (1974)). Clark v. State, 364 Md. 611, 644, 774 A.2d 1136, 1155 (2001). Further noting that prior cases enunciating this principle were decided on the basis of the Due Process Clause of the Fifth Amendment to the U.S. Constitution, the Court of Appeals remarked, we perceive no reason in this case to address whatever distinction there may be between the due process clause of the Fifth Amendment and that of the Fourteenth Amendment. We shall in the matter sub judice treat due process, ! ""!

based partially on perjured testimony that is material to the indictment, the defendants due process rights have been violated and the indictment must be dismissed. Id. Dismissal of an indictment is required in cases where the grand jury has been deceived in some significant way, as where false or perjured testimony is presented. United States v. Samango, 607 F.2d 877, 882 (8th Cir. 1979). Permitting a defendant to stand trial on an indictment which the government knows is based on perjured testimony cannot comport with this fastidious regard for the honor of the administration of justice. Basurto, 497 F.2d 781, 787, citing Communist Party v. Subversive Activities Control Board, 351 U.S. 115, 124, 76 S.Ct. 663 (1956). In Basurto, a witness who testified before the grand jury admitted that he perjured himself by providing testimony that was untrue. Basurto, 497 F.2d 781, 784. This witness was the only undisputed person who had knowledge of the defendants activities with regard to the conspiracy. Id. He informed the prosecutor of his false testimony prior to the commencement of trial. Upon learning of the perjury, the prosecutor informed defense counsel, but not the court. The court held that it violates a defendants constitutional rights when he is subjected to standing trial on an indictment which the government knows is based partially on perjured testimony. Basurto, 497 F.2d 781, 785. The court explained that it is the prosecutors duty upon learning the indictment is based in part on false testimony to correct the cancer of injustice and insure that the defendant does not stand trial based on the indictment. Id. at 784. !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! whether in the Fifth or Fourteenth Amendment, as being equated to the Law of the land. Id.

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In the case before this court, the State presented testimony that it knew was false. Id. at 785. The substance of this testimony was clearly the basis for the Indictment against Det. Walker, as a Grand Juror noted with respect to the non-existent surrender: That is what I wanted to make sure. (Exh. L at 15). Other than this false testimony, there is no actual evidence to support the charge that Det. Walker with premeditation killed Harvey, who had threatened him and his family with obscene, violent words, and followed up those words with threatening actions. II. THE PROSECUTION INVADED THE PROVINCE OF THE GRAND JURY, AND THEREBY VIOLATED DETECTIVE WALKERS FIFTH AMENDMENT RIGHTS.

Rather than simply outlining the investigative facts to justify seeking the charge, the trooper and the prosecutor advised the Grand Jury that the underlying conduct of Det. Walker had violated the law by labeling Harvey, rather than Det. Walker and his family, as the victim. This is demonstrated by referring to Harvey as the victim 31 times during his testimony. Thus, the Grand Jury was instructed by two law enforcement authorities that Harvey was a victim, notwithstanding the fact that he had threatened Det. Walker while demanding that he pull off the road, and aggressively confronted Det. Walker after exiting his vehicle. Once the prosecutor and the trooper deemed Harvey to be the victim, they presented materially false testimony and omitted materially relevant testimony to ensure that there was virtually nothing left for the Grand Jury to deliberate. Compounding the error, the trooper testified that the medical examiner determined the manner of death to be homicide. (Exh. L at 9). In essence, they improperly tailored the presentation to ensure that Det. Walker would be indicted for murder.

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The Fifth Amendment to the U. S. Constitution provides, in pertinent part, that [n]o person shall be held to answer for a(n) . . . otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . . It further assures that no person shall be deprived of . . . liberty, or property, without due process of law . . . U.S. CONST. amend V. The purpose of the federal constitutional right to indictment is to assure that a person is not subject to jeopardy unless infamous charges be presented to a group of ones fellow citizens acting independently of either the prosecuting attorney or the judge. Stirone v. United States, 361 U.S. 212, 216, 80 S. Ct. 270, 4 L. Ed2d. 252 (1960); U. S. v. Field, 875 F.2d 130, 133 (1989). See e.g. U.S. ex. rel. Toth v. Quarles, 350 U.S. 11, 14, 76 S. Ct. 1, 100 L. Ed. 8 (1955). The ABA Criminal Justice Section Standards, approved as black letter standards by the ABA House of Delegates, provides that a prosecutor, who acts as a legal advisor to the grand jury, may appropriately explain the law and express an opinion on the legal significance of the evidence but should give due deference to (the grand jurys) status as an independent legal body.13 Standard 3-3.6 (a) provides that [i]n appropriate cases, the prosecutor may present witnesses to summarize admissible evidence available to the prosecutor which the prosecutor believes he or she will be able to present at trial. The prosecutor should also inform the grand jurors that they have the right to hear any available witnesses, including eyewitnesses. Moreover, [n]o prosecutor should knowingly fail to disclose to the grand jury evidence which tends to negate guilt or mitigate the offense. Id. at Standard 3-3.6(b). Standard 3-3.6(f) further cautions that a prosecutor, in presenting a !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! '#!ABA Criminal Justice Section Standards, Prosecution Function (1992), Standard 33.5(a)(http://www.americanbar.org/publications/criminal_justice_section_archive/crimjust_ standards_pfunc_toc.html) (last accessed Feb. 24, 2014).! ! "%!

case to a grand jury, should not intentionally interfere with the independence of the grand jury, preempt a function of the grand jury, or abuse the processes of the grand jury. Id. The prosecutor must not only measure his own conduct, but that of its witness presenting evidence to the grand jury. Similarly, the Maryland Rules of Professional Conduct provide that a prosecutor in a criminal case shall refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause. MD. CODE. ANN. 16-812, MRPC 3.8 (West 2103). Probable cause is [r]easonable cause; having more evidence for than against. Blacks Law Dictionary 1201 (6th ed. 1990). That is, [a]n apparent state of facts found to exist upon reasonable inquiry (that is, such inquiry as the given case renders convenient and proper), which would induce a reasonably intelligent and prudent man to believe, in a criminal case, that the accused person had committed the crime charged. . .. Id. citing Cook v. Singer Sewing Mach. Co., 138 Cal.App. 418, 32 P.2d 430, 431. In this case, the evidence available to the prosecutor at the time of the Grand Jury presentation in no way tipped the balance in favor of an indictment of Det. Walker for First Degree Murder. Prosecuting attorneys, as officers of the court, are expected to present factual evidence to the grand jury panel, instruct it as to the applicable law, and permit it free and unobstructed deliberations in determining whether probable cause exists to return a true bill. Neither prosecutors nor their witnesses should be instructing the jurors on what constitutes a violation of the very statutes that the jurors are commissioned to deliberate. If they do so, they render the Fifth Amendment right to indictment meaningless, and violate a defendants right to due process. Because of the cumulative nature of the errors committed by the State

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in the presentation before the Grand Jury, dismissal of the Indictment is the appropriate remedy. III. THIS HONORABLE COURT HAS THE INHERENT POWER TO DISMISS THE INDICTMENT WHERE IT WAS OBTAINED BECAUSE OF THE PROSECUTORS MISCONDUCT.

This Court may dismiss an indictment where, as here, the prosecutors misconduct has substantially prejudiced the defendant. In the federal system, a district court has the inherent power to discipline attorneys who appear before it. Sheldon v. United States, 53 F.3d 1349, 1356 (1st Cir. 1995). Pursuant to its inherent authority, a district court may regulate a prosecutors conduct. Id. at 1357. In accordance with its inherent authority to regulate attorney conduct, as well as its supervisory powers, a district court may dismiss an indictment upon a showing of prosecutorial misconduct before the grand jury impairing its traditional function to a defendants prejudice. Bank of Nova Scotia v. United States, 487 U.S. 250, 253 & 263 (1988); United States v. Williams, 504 U.S. 36, 46 (1992). Maryland courts have held that prosecutorial misconduct, absent prejudice to the defendant, would not give rise to dismissal of the indictment. State v. Deleon, 143 Md.App. 645, 663 n. 4, 795 A.2d 776, 786 n. 4 (2002) (Other remedies besides dismissal, such as a contempt of court or attorney disciplinary proceedings, allow the court to focus on the behavior of the prosecutor instead of granting a windfall to an unprejudiced defendant). But where such prejudice to the defendant is present, the Deleon court endorsed the federal line of reasoning. With respect to prosecutorial misconduct generally, actual prejudice must be shown before the sanction of dismissal or reversal of a conviction can be properly imposed. Id. at 789 (citing Bank of Nova Scotia v. United States, 487 U.S. 250, 108 S.Ct.

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2369, 101 L.Ed.2d 228 (1988); United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983); United States v. Brockington, 849 F.2d 872 (4th Cir. 1988)) Det. Walker has suffered actual prejudice as a result of the false statements presented to the Grand Jury. The States violation substantially influenced the Grand Jurys decision to indict and provides grave doubt that the decision to indict was free from the substantial influence of such violations. Bank of Nova Scotia v. United States, 487 U.S. 250, 256 (1988) (The prejudicial inquiry must focus on whether any violations had an effect on the grand jurys decision to indict. If violations did substantially influence this decision, or there is grave doubt that the decision to indict was free from such substantial influence, the violations cannot be deemed harmless.). The troopers materially false statements and equally material omissions unquestionably influenced the Grand Jurys decision to indict Det. Walker. This was not one isolated false statement or omission. The false statements and omissions by the prosecutor and trooper were made to support a tortured theory that Det. Walker committed an act of cold-blooded, pre-meditated murder, rather that acting in self-defense. This theory permeated the presentation but was utterly belied by the evidence available to the State when it sought the Indictment. But for the false material testimony and omission of material facts, the Grand Jury would have had no evidence on which to support the charge of murder, premeditated or otherwise. Moreover, had the Grand Jury known that Det. Walker had made a statement in which he indicated that he had feared for his life and his familys lives, the Grand Jury may have refused to indict him. See United States v. Kojayan, 8 F.3d 1315 (9th Cir. 1993) (court remanded for district court to decide whether to dismiss under supervisory powers as

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sanction for governments misbehavior without referencing prejudice); United States v. Bernal-Obeso, 989 F.2d 331, 337 (9th Cir. 1993) (without reference to harmless error or prejudice, court remanded for inquiry into whether informant lied to DEA stating: should the court uncover egregious wrongdoing by the government . . . nothing in this opinion forecloses consideration by the court of dismissing the indictment for outrageous government conduct); See e.g. United States v. Santana, 6 F.3d 1, 10 (1st Cir. 1993)(citing fact that Supreme Court left open the possibility that the goal of deterring future misconduct would justify using the supervisory power . . .). Even assuming, arguendo, that the prosecutor did not know, when presenting the case to the Grand Jury, the evidence relating to the purported surrender was false, or Det. Walker had actually made a detailed statement, the State knows now and must take steps to correct the injustice. For, it has been absolutely clear that the government: ...is subject to certain restrictions on its relationship with the grand jury and the type of evidence it may present to obtain an indictment. See Basurto, 497 F.2d 781, United States v. Gallo, 394 F. Supp. 310, 315 (D.Conn. 1975). For example, where the government knows that perjured testimony has been given to the grand jury and the testimony is material to the grand jurys deliberations, due process requires that a prosecutor take such steps as are necessary to correct any possible injustice. Basurto, supra. When jeopardy has not yet attached, it generally is proper for the prosecutor to return to the grand jury and seek a new indictment untainted by the perjury. United

States v. Guillette, 547 F.2d 743 (2d Cir. 1976). See also United States v. Udziela, 671 F.2d 995 (7th Cir. 1982): where perjured testimony supporting an indictment is discovered before trial the government has the option of either voluntarily withdrawing the tainted

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indictment and seeking a new one before the grand jury when it reconvenes, unless it is already sitting, or of appearing with defense counsel before the district court for an in camera inspection of the grand jury transcripts for a determination whether other, sufficient evidence exists to support the indictment. If other, sufficient evidence is present so that the grand jury may have indicted without giving any weight to the perjured testimony, the indictment cannot be challenged on the basis of the perjury. Here, the Grand Jury would not have indicted but for the perjured testimony, for without it, there is no basis in the record to support the charge. Accordingly, the Indictment must be dismissed. CONCLUSION The facts set forth herein conclusively demonstrate the commission of prosecutorial misconduct and corresponding prejudice to Det. Walker. This misconduct includes, but is not limited to: falsely testifying before the Grand Jury in summarizing the witness statements provided to the Maryland State Police; repeatedly using the term victim in referring to Harvey as it was the Grand Jurys role to reach any such conclusion; falsely informing the Grand Jury that Det. Walker had not provided a statement to law enforcement personnel when, in fact, he had done so, and then, improperly eliciting testimony about his failure to do so; and intentionally concealing and withholding material facts, including: a) Det. Walkers statement that he feared for his life and the lives of his family prior to shooting Harvey; b) That Harvey and Pidel had been drinking heavily for several hours immediately prior to the incident and Harvey was legally intoxicated during the incident; c) Pidels admission to law enforcement personnel that Harvey purposely stopped his car, left it and advanced on the Walkers minivan with the specific intent and purpose to physically assault Det. Walker; d) Mrs. Walkers 911 call for assistance, as Harvey and Pidel approached the Walkers minivan; and

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e) Harveys body having been found by the Maryland State Police six (6) feet from the Walkers minivan. In sum, the prosecutorial misconduct here was of such a qualitative and quantitative nature that it undermined the Grand Jurys integrity and its deliberative process, usurped its role in protecting Det. Walker and the public from an unwarranted prosecution, and resulted in the denial of Det. Walkers right to basic due process. See Serving on a Maryland Grand Jury, Maryland Judiciary, Jury Use and Management Committee, at 2, 5 and 9 (http://mdcourts.gov/juryservice/pdfs/grandjuryservice.pdf). The State failed to fulfill its

obligation to the Grand Jury to render appropriate guidance as its legal advisor and present to its members, in good faith, evidence which the State has scrutinized for its reliability and relevance. Id. Accordingly, it is respectfully requested that the Indictment be dismissed. Should the State seek to obtain a new indictment, it is further requested that the State be ordered to present material evidence to the Grand Jury, to include, but not be limited to, Detective Walkers statement to law enforcement, the Walker familys 911 call, Harveys heavy drinking prior to his threatening conduct and words, all the statements of Pidel and the six witnesses who were passers-by, and Det. Walkers passing of a polygraph examination confirming that after Det. Walker displayed his weapon, Harvey indicated that he was going to try to harm or injure him.14 [Signature block on next page]

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! '$!The admissibility of the polygraph evidence at trial is the subject of a motion filed contemporaneously herewith.! ! #'!

Respectfully submitted,

______________________ Charles N. Curlett, Jr. Steven H. Levin LEVIN & CURLETT LLC 201 N. Charles Street Suite 2000 Baltimore, Maryland 21201 410-685-4444 Michael T. Cornacchia 260 Madison Avenue 22nd Floor New York, New York 10016 646-278-4297 Attorneys for Joseph Lamont Walker

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