Didn't see Lewis hit anyone, limo driver testifies

Statement appears damaging to case of Ga. prosecutors

Evidence withheld

May 26, 2000|By Jon Morgan and Marego Athans | Jon Morgan and Marego Athans,SUN STAFF

ATLANTA - On a bad day for prosecutors in the murder trial of Ray Lewis, the judge scolded them yesterday for violating evidence-handling laws, and their key witness testified that he never saw the Ravens star kill or even hit anyone.

The witness, Duane Fassett of Severn, drove the limousine used by Lewis and his two co-defendants on the morning of the killings.

It was his description of the early-morning fight, and Lewis' role in it, that led police to arrest and charge Lewis, 25, and two other men with assault and murder.

The linebacker's co-defendants are Reginald Oakley, 31, of Baltimore and Joseph Sweeting, 34, of Miami.

Fassett initially told investigators he saw Lewis throw a punch in the Jan. 31 brawl that left Jacinth Baker, 21, and Richard Lollar, 24, dead of stab wounds to the heart.

Yesterday, Fassett said he saw Lewis cock his fist during the fight, but didn't see whether he landed a blow because the driver was distracted by another fight down the street.

He joined other witnesses who have described Lewis as trying, early in the fight, to end it peacefully.

On the other hand, he testified that after the fight was over and the black stretch limo had left the scene, Lewis said that "his football career wasn't going to end like this." Fassett also said Lewis told him to "keep your mouth shut" about what he had seen.

Lewis' chief attorney, Edward T.M. Garland, said afterward, "We think Mr. Fassett was a very positive witness for the defense. ... His testimony exonerates Ray Lewis from the charges."

Fulton County District Attorney Paul Howard expressed satisfaction with Fassett's performance. "I thought he explained the acts and the coverup well," Howard said.

A Georgia attorney and former prosecutor not involved in the case was among legal experts who say the prosecution is off to a very bad start.

"It sounds like every witness so far has exploded on them," said Dan Summer of Gainesville, Ga.

"They clearly rushed this case. They are the authors of their own misery."

Summer said the failure of prosecutors to turn over evidence to the defense appears to be a serious ethical breach.

Doug Colbert, a law professor at the University of Maryland, said that even though the judge did not throw out the case over the evidence lapse, the matter could still be grounds for a later appeal of any conviction.

Fulton County Superior Court Judge Alice D. Bonner ruled that Howard's office should have promptly given the defense important evidence that pointed toward the innocence of Lewis.

The evidence concerned statements by Jeff Gwen, a friend of the victims who testified yesterday and the day before about what he saw.

In his first statement to police, said he saw Lewis hit Lollar. He later corrected that statement, telling prosecutors - and the jury Wednesday - that he only saw the two men "tussling."

Prosecutors furnished the original statement to defense attorneys but never informed them of the subsequent correction.

The change is significant because in order to convict Lewis of murder, the prosecution needs to show he was an active participant in the fight that led to the deaths.

Howard said his office had made the witness available to the defense, and that should have been sufficient. Bonner disagreed.

"The state has an obligation to disclose all exculpatory evidence to the defense," she said, ruling that a violation of the "Brady rule" had occurred.

The rule stems from a 1968 Supreme Court decision, Brady vs. Maryland, that established the obligation of prosecutors to turn over to defendants evidence discovered that is favorable to them.

But Bonner stopped short of declaring a mistrial or throwing out testimony, as defense attorneys urged.

After her ruling, the prosecutors gave the defense another document that suggested they had withheld information about Fassett's ability to hear.

In previous questioning by police, he had said he heard Oakley and Sweeting say "I stabbed mine" and "I stabbed mine, too" as they sped from the scene in the limo with Fassett at the wheel.

Trouble understanding

But he also told police his hearing is not very good and he has a hard time understanding the speech of young black men.

That fact emerged from notes taken by a prosecutor during a March interview with Fassett. The notes were not given to the defense attorneys until yesterday.

With the jury out of the room, Steven Sadow, an attorney for Sweeting, asked the judge to declare the prosecutor who took the notes, Assistant District Attorney Sheila Finley, a witness and order her out of the courtroom until she testified.

Bonner asked the two sides to come up with a less drastic solution, and, when the jury returned, Sadow read a statement about Fassett's hearing troubles.

Howard then completed questioning of Fassett but never asked him about the "stabbing" conversation. As a result, jurors might never hear the potentially damning evidence that Howard had signaled was so important in his opening statement Tuesday.

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