Outrage over boy's shooting must not overshadow justice

July 27, 2002|By GREGORY KANE

IF YOU'RE OLD enough, you may remember the headline from more than 30 years ago.

"Manson guilty, Nixon declares," it read. Charles Manson, accused of being the mastermind behind the murders of actress Sharon Tate and others in the late 1960s, was standing trial. President Nixon made a speech implying Manson was guilty. Manson tried, unsuccessfully, to use Nixon's gaffe to his advantage by waving the newspaper with the headline before the jury. For a while the nation debated whether our chief executive should make comments that in essence convicted a man still on trial.

"Spain guilty, O'Malley declares" could have been another headline that ran this week. With one sweeping announcement, Mayor Martin O'Malley thus went before an entire city and declared Perry Spain, charged in the shooting of 10-year-old Tevin Montrel Davis on July 15, guilty as charged.

Let's have a brief recap, in case anyone reading this has been comatose the past 12 days. On July 15, Tevin was sitting with his father on the front steps of their home in the 1900 block of W. Fairmount St. in West Baltimore.

Beyond that, the rest are allegations from one side or the other.

On a nearby corner, some young scofflaws were engaged in a craps game. Four other men pulled up in a Jeep Cherokee and tried to rob the first bunch.

Somebody from Scofflaw Group 1 whips out a handgun and starts blasting at Scofflaw Group 2. Clearly, this was not the same guy who, from across the expanse of Belvedere Avenue in Pimlico, shot and hit a Baltimore police officer earlier this month. The shooter on Fairmount Avenue misses everybody in Scofflaw Group 2 and hits Tevin in the back of the neck.

The bullet exited from Tevin's mouth. After some days in Maryland Shock Trauma Center and the Johns Hopkins Children's Center, Tevin was released. No thanks to the trigger-happy gunman, the lad survived.

The public outrage at the shooting was what it should have been. Citizens wanted an arrest, and quickly. They got one two days later, when police arrested Spain. Two days after that, Spain was back on the street, free on the $35,000 bail District Judge George M. Lipman set.

Spain's lawyer, Warren Brown, showed up to plead his client's case at the bail review hearing. No one from the state's attorney's office showed up to plead Tevin's. Representatives of the state's attorney's office passed the buck to the Police Department, who, they said, violated protocol by not telling prosecutors that Spain's bail review had been scheduled.

While you're still figuring that one, let's get back to the mayor, who took his dudgeon out on Lipman.

"The judge should have known - anyone should have known, without even going to law school - that [Spain] should not have been set free on a $35,000 bail," O'Malley is quoted in a Sun story by Allison Klein and Josh Mitchell.

Correction: We don't know diddly, except perhaps outrage, which we should all feel about Tevin's shooting. But in a court of law, it's facts that prevail. Lipman, as a judge who must deal in facts, can't afford the outrage the rest of us feel.

Those facts Lipman and other judges must carefully scrutinize come from the statement of probable cause, which, contrary to what the mayor would have us believe, is not the equivalent of a conviction. Before folks go on a rant against Lipman or State's Attorney Patricia C. Jessamy, they might want to consider exactly what's in the charging documents.

"The facts in the statement of probable cause are so skimpy," Brown said yesterday. "An anonymous witness or witnesses say they saw my client shoot somebody. It doesn't say who these witnesses are: male, female, young, old, high, sober, whether they had a criminal record. We pillory this judge because that's all he had to go on."

If, Brown continued, Lipman had seen evidence connecting Spain to a gun, it would have been different. If Spain had a criminal history, it may have been different. (Earlier Sun reports said police claimed Spain had a juvenile arrest record, but Brown said pretrial officials who appeared at the bail review hearing found "nothing" when they checked for past criminal activity.)

But all there is in the statement of probable cause are the allegations of witnesses thus far not identified. This may not be what the mayor and the rest of us want to hear right now, but it bears repeating: Eyewitness testimony and identification have been proven to be notoriously unreliable. What if some unfortunate soul were shot in the mayor's neck of the woods and some "anonymous witness" claimed O'Malley was the shooter? We know what Perry Spain would want the headline to read.

"O'Malley guilty, Spain declares."

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