In this trial, maybe judge makes call

June 02, 2000|By Ken Rosenthal

It's a long shot, but attorneys for Ray Lewis plan to argue that the case against the Ravens linebacker is so flimsy, he should be acquitted sooner rather than later.

In fact, attorneys for all three defendants in Lewis' double-murder trial are expected to ask Judge Alice D. Bonner for a directed verdict - known in Maryland as a motion for judgment of acquittal - once the prosecution's case is complete.

The chances of Bonner's releasing any of the defendants at that point is "very slight," according to Baltimore criminal defense attorney Warren Brown. But the fact that the possibility is even being discussed tells you all you need to know about how the prosecution's case is going.

Defense attorneys routinely ask for directed verdicts, going on record to protect themselves in the event of an appeal. The goal in this case is more ambitious, said Ron Cherry, Lewis' Baltimore-based attorney.

"We're cautiously optimistic," Cherry said last night. "But from the talk in the counsel's room today, the co-defendants' counsel seemed to believe that it's a very good possibility. I wouldn't discount it. We're going to certainly move hard for it. With what they have on him, he certainly deserves it."

If this were a boxing match, the referee would stop the fight. If this were a Little League game, the umpire would invoke the 10-run rule. But this is a legal proceeding, and Bonner actually has to take the Bad News Bears from Fulton County seriously.

When considering a request for a directed verdict, the judge must consider the evidence in "the light most favorable to the state" - an exacting standard that makes such dismissals extremely rare.

"More often than not, the motion is denied," Cherry said. "But in a situation like this, I would not be surprised if she granted it. There's still more testimony to come. But right now, I think it would be 50-50, maybe even better odds than that."

Right now, "the light most favorable to the state" appears to be a glimmer at best. Jack Rubin, a Baltimore criminal defense attorney, said he believes Lewis stands a "damn good" chance of being set free.

"It sounds to me like they haven't even talked to their witnesses," Rubin said. "They're giving them immunity as they go. It's been very amateurish."

The prosecution failed to deliver testimony it promised from one of its star witnesses, limousine driver Duane Fassett. Now it wants a second round of testimony from Fassett, a do-over. Alas, the driver is in a hospital somewhere in the great state of Maryland, according to his employer.

Fassett might indeed be sick; he sure looked it on the stand last week. He also could be exaggerating his condition, like a fringe major-leaguer who would rather go on the disabled list than get sent back to the minors.

Prosecutors have asked Maryland authorities to issue another subpoena to Fassett, but an Anne Arundel County circuit court judge might determine that ordering him back to Atlanta would constitute an undue hardship.

Oops!

Then there is the state's other star witness - admitted con man Chester Anderson, the only witness to allege that Lewis struck a victim.

Anderson testified that a companion, John DiSiena of Cleveland, told him of Lewis' involvement in the fight leading to the murders. But the defense entered a statement from DiSiena yesterday in which he denies seeing Lewis kick anyone or saying that he had and admits he was drunk on the evening of the fight.

Double oops!

Brown, the Baltimore criminal defense attorney, said it is difficult to imagine the jury's finding Lewis guilty beyond a reasonable doubt, based on the evidence the prosecution has presented.

But again, that isn't the standard Bonner must apply when considering a request for a directed verdict.

"If they have to look at the glass half-empty or half-full, the court will look at it as half-full," Brown said.

Thus, Bonner might have every legal reason to reject the defense's motion - and every political reason as well. Acquittals would be a major embarrassment for Fulton County District Attorney Paul Howard, who is running for re-election. Why would Bonner want to influence Howard's political future when the jury could do it for her?

A directed verdict for Lewis but not one of the other co-defendants also could send the rest of the trial into turmoil, giving Reginald Oakley and Joseph Sweeting grounds for a mistrial, Rubin said.

If Bonner rejects the motions, the defense will get another shot after all the evidence is presented. The standard then will be lower, but Bonner will be obligated to permit the trial to continue if she determines that a reasonable juror could find the defendants guilty.

"I think a reasonable juror could find guilt," Brown said. "I don't think these jurors will, at least as far as Ray."

If they do, Bonner then could overturn the verdict, citing insufficient evidence. But until then, she need not act.

"It really does take a lot for a judge to just take it away from a jury," Brown said.

But in a case this flimsy, who knows?

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