The prosecution and defense were back in court Tuesday to debate what evidence should be shown to jurors in the case of Metro Nashville Police Department Officer Andrew Delke. He stands trial for murder next month, for shooting and killing Daniel Hambrick during a foot chase in 2018.
The series of pre-trial hearings could have a major impact on the outcome of the case. The prosecution and defense spent three days arguing over what evidence they think should be presented at trial — and what should be left out.
More: Learn more about the case in our podcast, Deadly Force
A judge’s upcoming ruling on the arguments will shape the story jurors hear about the fatal 2018 shooting.
The two sides disagreed about multiple potential pieces of evidence, including Hambrick’s criminal record and data from his cellphone. The evidence in question essentially comes down to the narrative that each side plans to present at trial and how they will portray both the police officer and the man who was killed.
Prosecutor says they won’t refer to Delke as “decommissioned” even though it would be accurate. But ADA Roger Moore says Hambrick was subjected to homicide and that he is a victim. He says there should be no name calling on either side.
— Samantha Max (@samanthaellimax) June 15, 2021
Prosecutors don’t want jurors to see any evidence that could prejudice them against Hambrick, who they consider to be a victim who was wrongly killed. The defense, on the other hand, hopes to present any information that could help jurors to see why Delke decided to chase Hambrick and shoot him.
But perhaps the biggest sticking point was whether the jury will be allowed to see video of the shooting, which has already been shared publicly.
Prosecutors say their entire case rests on the surveillance footage. They want to show that Delke used excessive force when he shot Hambrick. They say the video of the shooting clearly shows it, and that’s all they need to make their case.
But defense attorney David Raybin told Judge Monte Watkins that none of it should be shown, because a piece of the chase is missing.
“If you’re going to show some of the video, you’re going to show all of the video,” he said. “And if you’re going show some — all of it, you want to acquire all of it, every bit of it, so that it’s in possession of all parties and the jury can see what the facts are.”
The so-called “void space” is about 36 feet of the foot pursuit that’s not shown in any of the footage obtained by state agents. Raybin said this is when Hambrick pointed his gun at Delke, making the officer fear for his life.
Raybin says the state has to prove without a reasonable doubt that Delke should be convicted. If they can’t do that, Raybin says, he gets acquitted. In other words, if there’s video missing of Hambrick pointing his gun, it’s up to the jury to decide whether to believe Delke.
— Samantha Max (@samanthaellimax) June 15, 2021
Without that clip, Raybin said jurors won’t get the full picture of why Delke fired his weapon.
“A trial is a search for the truth. That’s the point of it,” he said. “There can be no truth if some of the facts are kept from the jury.”
Raybin said the state’s failure to obtain all of the video of the incident could be grounds for complete dismissal of the indictment, though he doesn’t expect the judge to agree to that. He also said jurors could be given special instructions about the video, so they can weigh what they see against what might be missing. But his preference would be to have any footage of the incident completely suppressed.
Prosecutors balked at all of Raybin’s suggestions. Deputy District Attorney Roger Moore said the defense had found “one missing needle in the haystack of evidence” and that it’s unlikely the footage agents didn’t acquire would have shown anything exculpatory. He said suppressing the video would be equivalent to dismissing the case altogether.
“The void area is just that — a matter of a few feet, a second or two, whatever time, if we get into that,” Moore said. “But, as far as sanctions, suppression of the video is dismissal of the case.”
Expert witness
The defense and prosecution also disagreed about what witnesses should be called to testify at trial, particularly those considered experts.
The defense wants to prove that Delke was just following his training and that he did what any reasonable officer would have done under the circumstances. To prove that point, they plan to call a host of expert witnesses, including use of force trainers, legal scholars and forensic specialists.
“Experts are crucial,” Raybin said. “Lay people do not understand the police practices, protocols. That’s why we have experts.”
Prosecutors, however, said the video shows everything jurors need to see. They would have agreed to an earlier trial date with no expert witnesses called at all, Moore told the judge.
“This is a matter that the jury does not need any expert proof, any expert testimony,” he said. “In watching the video what happened, this is something that anyone can make a determination on without experts from either side.”
But if the defense team is going to call expert witnesses, the prosecution said they want to have the same opportunity to counter that testimony with their own experts. They hope to question Sgt. Jody Stiger, a use of force specialist from the Los Angeles Police Department who testified at Derek Chauvin’s trial in Minneapolis earlier this year.
Raybin challenged prosecutors’ decision to call Stiger as a witness, partially because they announced their decision to do so after the deadline. But Raybin also questioned their motives. He said the defense was merely using him as “a stunt” to try to replicate the guilty verdict in the trial of the officer who killed George Floyd, even though the circumstances in this case are “completely different.”
“Daniel Hambrick is no George Floyd. Officer Delke is no Derek Chauvin,” Raybin told the judge. “Mr. Funk says he want to be transparent. We can see right through it.”
The judge says he’ll mull over their arguments and make a decision by early next week. Jury selection is slated to begin July 6.
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