By Stephanie Barry | MassLive
BOSTON – While the prosecution of former Springfield police officer Jeffrey Asher focused on a chaotic, violent clash between Asher and motorist Melvin Jones III, the former patrolman’s appeal of his criminal conviction will be decided largely on academics.
Asher, convicted of assault and assault with a dangerous weapon in connection with a 2009 traffic stop during which he beat Jones with a metal flashlight, has appealed that verdict to the state Supreme Judicial Court. Seven justices last week heard 30 minutes of arguments from Asher’s appellate lawyer and Assistant Hampden District Attorney Elizabeth Dunphy Farris.
While Asher already was sentenced to 18 months in jail after being convicted by a jury in 2012, setting aside his conviction could prompt a new trial and impact Asher’s employment status with the department. He was allowed to retire, but lost his pension in the wake of the criminal conviction.
Asher is appealing the conviction on the grounds that Chicopee District Judge Maura Walsh erred when reversing her own decision to deliver a specific jury instruction as the panel readied to begin its deliberations. Asher’s lawyer has argued his client was entitled to a so-called “police privilege” instruction flagging the right for an officer to employ “deadly force with deadly force” while arresting a suspect considered to be dangerous.
Dunphy Farris has countered that the instruction would have been inappropriate given that Asher’s trial lawyer never argued Jones was resisting arrest.
Jones was a passenger in a car police pulled over on Rifle Street because its muffler was dragging as it drove. Officers ordered Jones out of the car; he attempted to wheel away and ran for about 15 seconds until a group of officers subdued him on the hood of a police cruiser, according to testimony.
Asher’s lawyer, Andrew J. Gambaccini, said another officer yelled: “‘He’s got my f***ing gun! Smash him!'” which led Asher to believe he was protecting himself and his fellow officers by wielding the flashlight.
Justices peppered the lawyers with questions and observations throughout their arguments.
“He did not have a weapon; never had it in his hand; there’s no evidence that he did,” Judge Barbara Lenk interjected during Gambaccini’s presentation.
“What is important, your honor, is what was officer Asher’s perception .. We’re not dealing with 20/20 hindsight; we’re dealing with an officer who had to make a split second decision. He thought the next sounds he would hear would be gunshots,” he argued.
A grand jury rejected allegations that Jones resisted arrest or went for any of the officers’ weapons. Drug possession charges against him were later dropped, though Jones picked up fresh charges all on his own including shoplifting, domestic assault and drug trafficking. The last earned Jones a conviction and he was sentenced to three to five years in prison. In the meantime, however, Jones won a $575,000 civil settlement from the city over the Asher assault.
The incident was caught on amateur video and the confrontation exploded into the public eye, sparking renewed debate over local police relations with people of color. The officers involved in the arrest were white while Jones is black.
Dunphy Farrris argued that – even if Asher initially believed Jones had grabbed an officer’s gun – that assumption was dispelled once they had him prone on the hood of the car.
“That’s the context of the initial six blows; it is not the context of the other 20 blows,” Dunphy Farris told the panel.
She contended the police privilege instruction would have confused the jury’s deliberations and the judge acted properly.
At any rate, it is not the high court’s intent to reconsider the trial evidence. It will mull over the jury instruction issue to decide whether Asher deserves a new trial.
Hampden County District Attorney Anthony D. Gulluni said he is reasonably confident the commonwealth is on steady footing in terms of the conviction. He declined to signal whether he will seek a new trial in the event the verdict is set aside.
“We will cross that bridge if and when we come to it,” Gulluni said during an interview on Wednesday. “We’re pretty confident we’re on solid legal ground.”
The judges took the matter under advisement.