Off-duty “Road Rage” Cop lawyer: Grand Jury given “materially false and misleading testimony”

ANDREW BRANCA FEB 26, 2014 1:30 PM

The lawyer representing New Jersey Detective Joseph Walker, awaiting trial for first degree murder in the Maryland shooting death of Joseph Dean Harvey Jr., has filed a motion to have the charges dismissed on the grounds that “the assistant state’s attorney and the Maryland state trooper, who led the investigation, presented materially false and misleading testimony to the grand jury,” according to a report by WMAR, the Baltimore, MD affiliate of ABC.  

Defense attorney Michael T. Cornacchia provided several detailed examples to illustrate his claim, including:

• The Maryland State Trooper told the grand jury that Walker did not make any statements.  In fact, claims Cornacchia, Walker told a responding officer that he had feared for both his own life and that of his family.
• The Trooper testified that none of Harvey’s gun shot wounds were caused at close range, but he failed to tell the grand jury that Harvey’s body was found only six feet from Walker’s Kia minivan, the position from which Walker fired the shots.
• The Trooper also failed to disclose to the grand jury that Harvey crossed 158 feet to reach Walker, during which Walker held fire until he had no other choice.
• The assistant state attorney and the MD Trooper also told the grand jury that “after the first shot, all witnesses who have provided statements indicated Harvey was standing still and had his hands up.” In fact, Cornacchia claims, five of the witnesses did not see the shooting at all and did not say Harvey had stopped after the first shot.
• In addition, one of the only two witnesses who actually saw the shooting provided an inconsistent statement that itself was contradicted by the second witness of the shooting.
• In addition, although the Trooper testified that Harvey “had lunch”  before the shooting, no mention was made of the fact that Harvey had been drinking for four hours and was legally intoxicated when shot.

Defense attorney Cornacchia also claims additional critical facts were withheld from the grand jury.

Cornaccia also filed a second motion seeking to admit into evidence a passing polygraph in which Walker stated he acted in self-defense in shooting Harvey.

With Walker’s trial scheduled for May 21, and Maryland’s institutional contempt for armed guns in general and armed self-defense in particular, it seems unlikely that the motion to dismiss charges would be granted.

I’m not sufficiently familiar with Maryland’s evidentiary rules to guess at the prospects for a polygraph being admitted.  In most jurisdictions they are not, and in any case the polygraph could at best evidence Walker’s belief that he acted in lawful self-defense.  I personally get letters with unfortunate frequency written by people serving long prison terms who also honestly believe that they acted in lawful self-defense.  It doesn’t matter if you think you acted in lawful self-defense, it matters if you actually did.  Here, the polygraph could have relevancy only to Walker’s subjective reasonable belief that he necessarily acted in lawful self-defense, and it seems likely that other evidence will be sufficient on that point.

But we’ll keep an eye on it, right here at Legal Insurrection.

–-Andrew, @LawSelfDefense

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Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog, Amazon.com (paperback and Kindle), Barnes & Noble (paperback and Nook), and elsewhere.

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