Paul Bass Photo
As the Mitch Dubey murder case heads to trial, lawyers on both sides jousted over ground rules regarding a key piece of evidence — marks on the alleged murderer’s face.
The discussion took place Thursday during a hearing in Judge Jon C. Blue’s fourth-floor courtroom in state Superior Court on Church Street, where the jury trial of Tashaun Fair is set to begin on Monday.
Fair (pictured above at a previous court appearance) is accused of fatally shooting Mitch Dubey, a popular bike mechanic and vegan punk-rock musician, during a botched robbery in Dubey’s Bassett Street home on March 24, 2011. Fair has pleaded not guilty.
Blue devoted Thursday morning to the consideration of several last-minute motions in the case. Two of these concerned expected testimony and evidence about the presence or absence of certain “facial marks” on Fair’s face.
The defense referred to the alleged markings as “freckles.” The prosecution preferred to described them as “areas” around the eyes or nose where the skin is “lighter or darker.”
Those “areas” will be a key part of the prosecution’s case, since four friends of Dubey who were present at the killing said the shooter has freckles. The friends were unable to identify Fair as the shooter.
The photos would presumably be used to bolster the case that a freckled Fair committed the murder. The prosecution wants to use photos that allegedly show freckles. The defense sought Thursday to keep those photos out of the trial.
Judge Blue decided Thursday that he will allow the prosecution to present the jury with two photos taken of Fair when he was arrested for the murder in August 2012. But the prosecution may not initially present two other photos, taken when Fair was arrested two months earlier for trespassing.
Blue also ruled that the prosecution can ask Asst. Police Chief Thaddeus Reddish about Fair’s facial marks.
Turnips
NHPD Photos
Fair’s public defender, Tom Ullmann, made the argument Thursday seeking to preclude the arrest photos from being introduced. He argued that the photos were from nearly a year and a half after the murder and therefore not relevant. Ullmann objected not only to the introduction of the photos but to a police officer introducing them.
The photos — mug shots — would be introduced when the prosecution calls Reddish to the stand, said prosecutor Jack Doyle. The photos total four: A frontal and side view taken after Fair was arrested for the murder on Aug. 28, 2012, and the same views from when he was arrested on Aug. 13, 2012 on an unrelated trespassing charge.
Doyle said the photos “show certain characteristics about [Fair’s] face and eyes” that are important to the case.
Blue said the 16 months after the murder is not long enough for a suspect’s face to change significantly, so he will permit the murder arrest photos.
The photos from the trespassing arrest are a different matter, however. The jury would infer that Fair was arrested for another crime before the murder arrest, which could be prejudicial, Blue said.
Doyle said the prosecution wouldn’t present the pictures as booking photos.
Blue didn’t buy it. The jury “hasn’t just fallen off the turnip truck,” he said. Jury members will know mug shots when they see them, whether the prosecution introduces them as such or not.
“I’m inclined to split the baby,” Blue said. He decided to allow the murder arrest photos, but not the trespassing arrest photos.
Grist
Paul Bass Photo
Blue later considered a motion from Ullmann (pictured) concerning Reddish’s hypothetical testimony on Fair having freckles or not.
Doyle said Reddish would be asked about facial marks on Fair. Reddish has known Fair since Fair was 11 or 12. Reddish previously served as the district manager in Newhallville and lives in the neighborhood.
“He’ll say he has freckles?” Blue asked.
“No. That’s what Mr. Ullmann has written,” Doyle said. Doyle referred instead to “facial marks” that are “lighter or darker.”
“Why would he need a police official” to testify about facial marks? Ullmann asked. If Reddish is testifying about skin markings, he should do so as a civilian not as a cop, he argued. The jury will infer that Reddish knows Fair from being a problem in the neighborhood.
“Denied,” Blue said. “It’s all grist for the jury’s mill.”
“Latitudinarian”
Blue also ruled on a several other motions Thursday morning.
Doyle submitted a motion seeking to block the defense from asking the prosecution’s star witness about the possibility that someone other than Fair might be responsible for the murder. Doyle warned that he may seek to temporarily excuse the jury if the defense pursues that line of cross-examination.
“Cross-examination can be broad and liberal,” Blue said. “The court is extremely disinclined to limit the cross-examination. … The court is inclined to be very latitudinarian with regard to questioning.”
Blue said he’s prepared to allow Ullmann to “throw the proverbial kitchen sink at the witness.”
The witness, who told cops he acted as a lookout during the robbery, is not alleged to have been a co-conspirator, Doyle said later in Thursday morning’s hearing. The prosecution alleges that Fair acted alone, Doyle said.
An FBI report states that an informant told investigators that the alleged lookout is the person who actually committed the murder.
