Credit: Darrow Montgomery/file

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As convicted murderer and erstwhile Metropolitan Police Department officer Terence Sutton and his lieutenant, former MPD officer Andrew Zabavsky, remain out of custody following their convictions, their attorneys have filed appeals seeking to throw out the jury’s verdict and grant them a new trial.

Sutton was convicted in December 2022 of second degree murder in the death of Karon Hylton-Brown; he and Zabavsky were each convicted of obstruction of justice and conspiracy. Hylton-Brown died in October 2020 following a vehicle pursuit in which Sutton chased him in an unmarked police vehicle as he rode a moped throughout Brightwood Park. In the final seconds of the pursuit, Hylton-Brown rode through an alley, with Sutton accelerating behind him, onto Kennedy Street NW where he was struck by an oncoming vehicle. He was thrown from the moped and later died of his injuries at a local hospital.

Following the guilty verdicts, U.S. District Court Judge Paul Friedman allowed Sutton and Zabavsky to remain out of custody. This week, the officers each filed two motions appealing on evidentiary and jurisdictional grounds, respectively. They are unlikely to succeed, in part, legal experts say, because the motions largely rehash arguments that Friedman has already rejected and ask him to reverse rulings he made leading up to and during trial.

The filings are fairly routine, and necessary, steps on the officers’ way to making their case to the Court of Appeals. It’s the phase of the case where defense lawyers present every conceivable argument.

“It’s a Hail Mary,” says Jonathan Smith, executive director of the Washington Lawyers’ Committee for Civil Rights and Urban Affairs. “They’re throwing everything against the wall in the hopes that something might stick.”

Judge Friedman, for one, should not be surprised to see them. Throughout the two-month trial, he repeatedly exclaimed from the bench, often after issuing a ruling against the defense team: If you don’t like it, appeal me, or words to that effect.

Together, the four motions run nearly 150 pages. The lawyers object to everything from Karon’s mother, Karen Hylton, being present in the courtroom to alleged deceitfulness from prosecutors.

Here is a sampling of some of the arguments the officers’s lawyers are making:

Sutton Never Engaged in a Vehicle Pursuit

Sutton’s attorney Michael Hannon asserts that the government’s entire case was built around Sutton’s violation of MPD’s general orders for vehicle pursuits. But, he claims in a motion asking the judge to throw out the jury’s verdict, Sutton never engaged in a vehicle pursuit in the first place.

To support his claim, Hannon cites a definition of a pursuit, as “an attempt … to apprehend a fleeing felon while in an authorized emergency vehicle with all emergency warnings [sic] devices activated.”

Hylton-Brown was not a “fleeing felon” and Sutton only used his emergency equipment sporadically throughout the three-minute chase. His lights and siren were not activated in the final seconds leading up to the collision.

“Hence, no rational jury could find that Ofc. Sutton was engaged in a vehicular pursuit under MPD General Policy because he did neither of these two things which define a pursuit,” Hannon writes.

Carl Messineo, legal director for the national civil rights org the Partnership for Civil Justice Fund, calls that assertion “deeply disingenuous.”

“The argument turns reality on its head—that the chase could not have been a vehicular pursuit because the definition requires pursuit of a fleeing felon, which Hylton-Brown was not, and with emergency lights and siren engaged to stop traffic, which Sutton did not do,” Messineo says. “This is upside-down reasoning, an argument that because Sutton violated the general order, the order must not have applied.”

Notably, MPD’s current general order on vehicle pursuits, which went into effect in December 2021, uses a different definition of vehicle pursuit: “Attempt by a law enforcement officer in an emergency vehicle to apprehend a suspect who is actively attempting to elude apprehension while operating a motor vehicle.”

The 2021 version also says officers “may engage in a vehicle pursuit to apprehend a fleeing felon only when every other reasonable means of affecting the arrest or preventing the escape have been exhausted,” and officers “shall not pursue a vehicle for the sole purpose of affecting a stop for a traffic violation.” Sutton’s initial draft report on the fatal collision said he had tried to stop Hylton-Brown for a traffic violation: riding on the sidewalk without a helmet.

MPD’s General Orders Are Really More Like Guidelines

Hannon argues in the same motion that the government cannot prove any violation of the general orders because they are “entirely subjective” and “all involve judgment calls.” (He makes a similar argument in Sutton’s other motion, for a new trial, writing that “both determinations [of violations of the general orders] are completely subjective and incapable of proof.”)

Messineo says it is not uncommon to use police general orders to demonstrate how officers are trained and what risks they would have been aware of. “The jury agreed with the government, that Sutton knew that giving chase posed an extreme risk of death or serious bodily injury to Karon, and he did it anyway,” Messineo says. “General orders are put into place to govern police conduct and to protect the civilian population. The fact that, even at this stage, Sutton is expressing such extreme disregard for these protections is notable.”

The U.S. Attorney’s Theory of Criminal Liability Will ‘Up-end’ Policing

In the motion for a new trial, Hannon calls the prosecutors’ theory of criminal liability—that is, their decision to charge Sutton under the D.C. murder statute, rather than the federal code—“unprecedented.”

“Should this case become a standard, it will have far-reaching and enormously costly effects on law enforcement,” Hannon writes. “This new standard would up-end the standard of Constitutional Policing that emanated from the Supreme Court’s decision in Graham v. Connor.

Sutton was charged and convicted in federal court of second-degree murder under local, D.C. law. (Prosecutors were allowed to bring the local charge into federal court because the other counts, obstruction of justice and conspiracy, were brought under federal statutes.)

As a police officer, Sutton is typically afforded certain constitutional protections when he uses force in carrying out the responsibilities of his job. But prosecutors in this case did not accuse Sutton of using excessive force as a police officer so he was not entitled to those same protections that the Supreme Court has laid out. Instead, they charged him under the local law that governs civilians’ actions.

Therefore, the question facing the jury on the murder charge was basically whether Sutton acted in conscious disregard of extreme risk of death or serious injury, and knew his behavior created the risk that ultimately ended in Hylton-Brown’s death, instead of whether Sutton acted in accordance with a reasonable officer on the scene.

Hannon also points out that the D.C. Council enacted a local law that governs an officer’s use of deadly force and argues that Sutton should have been charged under that section of the law. It requires a judge or jury to evaluate the officer’s actions “from the perspective of a reasonable law enforcement officer,” and consider whether the subject had a deadly weapon or refused to comply with commands, and whether the officer tried to de-escalate the situation or whether the officer’s actions increased the risk of a confrontation.

“The government is correct that when an officer is not acting within the scope of his employment, common law crimes apply,” Hannon writes. “However, where the City Council codifies express criminal statutes related to conduct of law enforcement officers, that constitutes the law that must apply when they are acting within the constitutional scope of their employment.”

Smith believes this argument—whether the law provides Sutton more of a shield than the judge allowed him—is one the Court of Appeals may take up. “But everything else is unlikely to get attention from the appeals court,” he says.

Messineo, for his part, says the prosecution is indeed unprecedented. But “just because there is an unprecedented measure of justice is not a legal basis for overturning the guilty verdict of an officer found to have committed murder while on duty.”

Judge Friedman Improperly Excluded Evidence of Hylton-Brown’s Past

Hannon argues that the judge erred in prohibiting the jury from hearing evidence about Hylton-Brown’s involvement with the criminal justice system, including his prior arrests. “There is no question of the incredible scope of criminality in which this 20-year-old has engaged,” Hannon claims in his motion.

In the list of evidence to support his claim, Hannon says Hylton-Brown was found with more than $3,000 in small bills strapped to his legs under his pants when the medics cut his clothes off to treat him.

In court, Friedman said the jury could not hear that, and other, pieces of evidence because the question before them was about Sutton’s state of mind, not Hylton-Brown’s. There was no evidence Sutton knew about the cash before the fatal collision, so it could not have been a factor in the officer’s motivation to chase him, Friedman reasoned.

In his motion, Hannon counters: “How can a suspects [sic] motive to flee be logically irrelevant to an offier’s decision to follow him, when criminal courts everyday led some credence to flight as arousing suspicion.”

Sutton, of course, could have testified to his state of mind on the night in question, but instead chose to remain silent.

Zabavsky Was Selectively Prosecuted

Zabavsky’s attorney, Christopher Zampogna, argues that the White lieutenant was singled out and prosecuted due to his race. To support his argument, Zampogna writes: “After trial, the government wrote a letter officially declining to prosecute the other members of the CST unit … This new evidence proves that the government selectively and vindictively prosecuted officer Zabavsky.” Plus, Zampogna adds, he filed a Freedom of Information Act request that has been delayed “due to the government attorneys [sic] lack of cooperation with the request.”

Specifically, Zampogna is referring to two other non-White members of the Crime Suppression Team, who were riding in the car with Sutton: officers Carlos Tejera and Ahmed Al-Shrawi, both of whom testified for the prosecution. The fourth CST officer in the car that night, Corey Novick, is White and has not been charged, though Zampogna says prosecutors “treated [him] as hostile.”

Zabavsky, who was supervising the team, drove in a separate, marked SUV. He was charged and convicted of obstruction and conspiracy, in part, due to his supervisory role of the CST team and his misleading statements to the watch commander following the collision.

Friedman’s Conduct Toward Hannon Could be Problematic

From time to time leading up to and throughout the trial, Friedman got a little impatient with the lawyers from the prosecution and the defense. But Hannon, in particular, seemed to have a knack for pissing off the judge.

In his motion for a new trial, Hannon recounts two tense exchanges between himself and Friedman. In one exchange, Hannon and the judge argued over how attorneys for each side could characterize Hylton-Brown’s toxicology in front of the jury.

“You’re viewing it in once sense, and you want me to adopt your characterization of what is this relevant to, and I’m not going to buy it,” Friedman said in court. “I’m not going to walk into your trap. You make your arguments. The government will make their arguments.”

“I’m setting a trap?” Hannon asked.

“… Don’t argue with me,” Friedman replied. “Make your goddamn argument and sit down.”

As Hannon walked slowly back to his seat, Friedman stood from his chair, waved his finger in the air, and exclaimed: “Not now! You don’t have to sit down now! I am not cutting off your argument, Mr. Hannon! I am not cutting off your argument …”

Friedman apologized soon after, saying, “It is difficult for judges as well as for lawyers to maintain their cool every single minute, and after an eight-week trial, I have some moments that I’m not—there’s some things that I have said or the way I’ve said it that perhaps I shouldn’t have.”

He continued: “You can argue to the Court of Appeals if there’s a conviction, but I think I’ve been eminently fair to both sides. … But the question before the Court of Appeals will be whether I’ve been fair to both sides on the merits and on the substance. … Those things that they think I did that caused prejudice, if there were such, that affected the fairness of the verdict, they’ll do what they do.”