Court Battle Continues Over Video of Dying Man Blinking to ID His Shooter

Defense lawyers are asking Maryland's highest court to overturn a ruling that a blink by a dying, paralyzed man can be used as evidence that he identified his attacker to police.

Prosecutors and defense attorneys have been wrangling in court for nearly a year over whether a video of a blink that reportedly identified an injured man's shooter could be shown to a Prince George’s County jury. The victim later died from his injuries.

In May, the Maryland Court of Special Appeals overturned a November 2013 ruling by Judge Leo Green Jr. that said showing the video to jurors would have violated the defendant’s Sixth Amendment right to face his accuser, reports The Washington Post.

The appellate court’s decision, if allowed to stand, would allow the blink testimony to be shown as evidence for the first time in a Maryland murder case and the fourth time in the United States.

The video of Melvin Nathaniel Pate blinking at a photo lineup can be included in Jermaine Hailes’s murder trial if the state's highest court lets the lower court ruling stand. Pate, 29, was shot and paralyzed in 2010; he died in 2012, two years after the video was recorded.

Appeals court Judge Charles E. Moylan Jr. ruled in May that Pate’s blinks should be considered a “dying declaration,” which is exempt from the legal requirement that criminal defendants have the right to face their accusers, the newspaper reports.

But the appeals process is not yet over.

The attorney for Hailes filed a petition this month asking that the Maryland Court of Appeals overturn the decision that would allow jurors to watch the video of Pate blinking, reports The Washington Post. Pate’s statement does not constitute a dying declaration, argues the defense, because Pate lived for two years after the shooting.

The defense also argues that the Sixth Amendment gives Hailes the right to cross-examine his accuser, which is no longer possible.

After prosecutors respond to the request for an appeal, the court will decide whether or not to hear the case, the Post says.