Despite harsh criticism of Fairfax County, Virginia, prosecutors, a circuit court judge has denied a defense motion to drop assault and battery charges against police officer Tyler Timberlake, who used a Taser on a disoriented man on June 5, 2020.
Timberlake’s lawyer, Brandon Shapiro, argued the three misdemeanor counts against his client should be dropped because prosecutors failed to turn over evidence the suspended officer could use in his defense.
In a July 2 ruling, Circuit Court Judge Brett Kassabian said prosecutors, in the office of Commonwealth’s Attorney Steve Descano, “failed to promptly and timely disclose exculpatory evidence,” and didn’t turn over the names or statements of any expert witnesses who support Timberlake’s argument that he used the stun gun on a man he mistook for another Black man who he knew was a PCP user with a history of fighting police.
However, the judge said the prosecution’s shortcomings in this case didn’t meet the standard required to throw out the case.
“Fifteen months remain between now and Defendant’s trial, and the court cannot find that defendant was prejudiced by the delay,” Kassabian wrote.
Kassabian said, “The Commonwealth has failed to meet its duty to disclose exculpatory evidence timely.”
While not meriting dismissing the case, Kassabian said prosecutors should be disciplined.
“To turn a blind eye and acquiesce in prosecutorial pronouncements of purported open file discovery not only adversely affects defendant’s rights to a fair trial, but also shakes the public’s confidence in a process that is based on justice and fairness,” Kassabian wrote.
In crafting a measure, Kassabian said prosecutors will not be allowed to have an expert witness — who is allowed to offer opinions — talk about Timberlake’s tactics.
“The Commonwealth shall be prohibited from introducing any expert testimony in its case in chief related to the purported unreasonableness and excessiveness of the Defendant’s actions or deviation from general orders,” Kassabian wrote.
However, jurors would likely be able to hear from a fact witness — for instance, a member of the county police department — who could describe officers’ training.
Descano issued a statement to WTOP and said he’s glad the judge found his office didn’t commit a violation resulting in a dismissal.
“I look forward to providing a jury of Fairfax County residents an opportunity to decide the outcome on the case’s merits. I take seriously the issues raised in the order, have reorganized the team working on this case, and directed them to immediately reexamine all potential discovery elements,” Descano said.
Timberlake remains on administrative leave. A police spokesman said the department’s internal affairs investigation will continue after Timberlake’s criminal case is resolved.