FAIRFAX, Va. (AP) — Defense lawyers say they will seek a mistrial for a former police officer on trial in the fatal shooting a shoplifting suspect outside a busy northern Virginia mall after prosecutors’ closing argument Wednesday included evidence that was never introduced at trial.
The jury heard prosecutors’ closing argument against former Fairfax County Police officer Wesley Shifflett, who is charged with involuntary manslaughter. But the judge sent them home for the day after defense lawyers objected to the argument by Assistant Commonwealth’s Attorney Natheena Tyler.
Shifflett fatally shot Timothy McCree Johnson in February 2023 following a brief foot chase outside Tysons Corner Center, a busy shopping mall, after Johnson was identified stealing sunglasses from a Nordstrom department store.
Jurors have seen bodycam video of the shooting, in which Shifflett yells “get on the ground” before firing two shots at Johnson. After the shots were fired, Shifflett immediately yelled “stop reaching” and told other officers that he saw Johnson reaching in his waistband.
The shooting occurred at night, and the dimly lit video is unclear as to whether Johnson, who turned out to be unarmed, ever reached for his waistband.
Shifflett, who was fired after the shooting, is white, and Johnson was Black.
While jurors saw much of the bodycam video, they had not seen a snippet from a couple minutes after the shooting in which Shifflett recounts to officers that he told Johnson to “show me your hands,” something he never actually said to Johnson before or after firing the shots.
Tyler went on to argue that Johnson made up the quote in his explanation to officers because he already knew that “he messed up.”
Defense lawyer Matthew Noel said the error is highly prejudicial to his client, portraying him as a liar and denying him the ability defend against it with evidence of his own. He said that the defense had an expert lined up who could have explained how an officer might make excited utterances like that, but that the expert’s testimony was barred because the “show me your hands” clip was not going to be presented at trial.
Another defense lawyer, Caleb Kershner, said after Wednesday’s hearing that he expects to seek a mistrial with prejudice, meaning that the case would be tossed out and prosecutors would be barred from seeking a new trial.
But it is unclear how Judge Randy Bellows will address the issue. While it was significant enough for him to stop the trial and send the jury home, he also said the defense erred by waiting to object until the conclusion of the prosecutor’s closing. He said they should have objected as soon as the clip played.
Defense lawyers said they hesitated to object immediately in part because they weren’t entirely sure in the moment that the clip hadn’t been introduced as evidence.
Bellows will rule on how to proceed when the trial resumes Thursday.
Prosecutors have struggled to present their case against Shifflett. Initially, a grand jury declined to indict Shifflett. At that point, Fairfax County Commonwealth’s Attorney Steve Descano, who won office on a campaign platform that included holding police officers accountable for misconduct, convened a special grand jury that operated under rules that gave Descano more oversight over the process.
The special grand jury returned indictments on charges including involuntary manslaughter and reckless handling of a firearm.
The trial was delayed for several days when the lead prosecutor suffered a serious medical issue. A different prosecutor stepped in after several days.