“Look at the jury,” the defense attorney directed his client, Tashaun Fair. “Did you shoot and kill Mitchell Dubey?”
“No,” replied Fair.
Fair gave the reply with calm confidence as he took the stand Tuesday, on the seventh day of his trial in Judge Jon C. Blue’s fourth floor courtroom in state Superior Court on Church Street. Fair, who’s 20, is accused of fatally shooting Dubey, a popular downtown bike mechanic, during a robbery in Dubey’s Newhallville home on March 24, 2011.
Fair has maintained his innocence in the crime. On Tuesday, he took the risk of getting on the stand and proclaiming his innocence in front of the 12 jurors and four alternates weighing his fate.
The state has no physical evidence linking Fair to the crime, and Dubey’s friends who were home during the robbery were unable to ID the killer because he had his face mostly covered. The only evidence against Fair is the word of the state’s key witness, Paulio, whose erratic behavior has kept everyone guessing throughout the trial. After a dramatic recantation and attempted escape from a police van, Paulio did a 180 and testified Monday that he accompanied Fair to Dubey’s house, then waited outside while Fair went in, fired a bullet, then fled.
Because of the lack of physical evidence, the case now rests largely on whom jurors believe: Fair or Paulio?
When Paulio took the stand, he had to confront numerous inconsistencies within his own statements, and with other facts of the case, such as his denial that he was issued a subpoena to show up to court. The defense’s decision to put Fair on the stand was risky because it meant jurors would learn about his past felony conviction for robbery, and because it opened him up to be attacked by the prosecution. Fair held up under pressure: Unlike Paulio, he survived his 45 minutes on the stand without being confronted with any inconsistent statements that might call his truthfulness into question.
Fair took the stand at noon Tuesday wearing a black suit and a bright yellow tie. The 6-foot-2 basketball player raised his large right hand and swore to tell the truth.
He told the court that on the morning of the murder, March 24, 2011, he went to school at New Horizons, an alternative high school in the Hill. Then he went to basketball practice. After practice, he went home to 250 Newhall St., where he was living with his mom, two sisters, brother, mom and niece.
His mom, who works at a Yale cafeteria, usually comes home between 7 and 8 p.m., Fair said.
At 10 p.m. that evening—the time of the murder—Fair said he was in his upstairs bedroom.
“I was in the bedroom playing Playstation 3,” he told the court. “My mom knocked on the door.”
“She said she thinks she heard something,” Fair said. “I closed my game, got up” and “looked out the window.”
His house is just around the corner from Dubey’s home at 29 Bassett St.
Fair saw “sirens and cop cars started coming out the street.” He went to the porch and saw the cops were blocking off the street, he said.
Then he went upstairs, went to sleep, and went to school the next day, Fair testified.
Four months later, Fair was interviewed by two detectives at 1 Union Ave. He was not under arrest. Throughout an hour of hostile questioning, he consistently denied being at the scene, according to his testimony.
Before Tuesday, Fair had spent six days in court listening quietly while the state tried to pin the murder on him. He kept a calm, compliant demeanor even when he was forced to stand in front of the jury while an assistant police chief pointed at features on his face.
Wrapping up his direct examination, defense attorney Tom Ullmann (pictured) asked Fair to turn his face to the jury again—this time, so they could analyze his truthfulness as he answered questions about the crime.
“Look at the jury,” Ullmann directed.
“Were you at 29 Bassett St.” on the night of the murder? Ullmann asked.
“No,” replied Fair.
Did you enter 29 Bassett St. and “attempt to rob anybody?”
“Did you shoot and kill Mitchell Dubey?”
In cross-examination, prosecutor Jack P. Doyle unleashed a volley of questions about the night of the murder. Fair maintained that had nothing to do with the crime and he never even heard his name mentioned in regards to the homicide.
“Isn’t it true that you were with [Paulio], you wanted him to do a robbery with him?” Doyle asked in a string of questions that sounded more like accusations. “You walked up” to the house, right?
“No, that’s not correct,” Fair replied calmly.
“You went in with a silver gun,” right? Doyle asked.
Fair said no.
“You remember, because you were the one who was there that night?” Doyle asked.
“No, I wasn’t,” Fair replied.
The Ruby Theory
Doyle then surprised the room with an unusual theory never before disclosed in court: That Fair “freaked” and pulled the trigger inside the house because Dubey’s roommates were calling out the name of their dog, Ruby—which is the same name as Fair’s mother.
“You have a tattoo with the name Ruby, don’t you?” Doyle asked. Fair said he does have a tattoo of his mother’s name on his neck.
Dubey’s roommate testified that she called out, “Ruby, get back,” to her dog when the intruder came in the house, Doyle reminded Fair.
“You heard the name Ruby,” Doyle said. “You freaked out and the gun went off, and you fled.”
“No,” replied Fair.
“Isn’t it true that after you shot Mitchell Dubey, you ran all the way home to your Ruby?”
Fair said no.
Pleased with how Fair held up under cross-examination, Ullmann rested his case.
Ullmann surprised the prosecution by deciding last-minute not to bring Fair’s mom to the stand.
His mom, Ruby Avent, had stayed away from court all week in case Ullmann needed her to serve as a witness to provide an alibi for her son. Avent previously told police she was home with Fair at the time of the shooting.
However, bringing her on the stand would present a problem for Fair because Avent also told police that she had heard rumors of her son’s involvement in the homicide, according to Fair’s arrest warrant. That info has not been admitted into court; Doyle would surely have asked her about it if she had taken the stand.
Doyle told the judge he intends to point out the “missing witness” to jurors in his closing statement Wednesday morning to cast doubt on Fair’s alleged alibi.
Ullmann replied that he never filed a motion expressing his intent to provide a defense by alibi; he said he knows he opened himself up to the “missing witness” point when he decided not to bring Avent to the stand.
Earlier Tuesday, Ullmann brought in a police sketch artist, Detective Daniel Reed, all the way from Maine, in order to illustrate a point favorable to the defense: that a description given by an eyewitness sounds nothing like Fair.
Reed, a detective for the county sheriff’s office in Bath, Maine, met in April of 2011 with the eyewitness who got the closest look at the shooter’s face. The eyewitness is a friend of Dubey’s from Maine who had been visiting Dubey’s home at the time of the homicide.
The witness met Reed at the police station in Portland. The witness gave the following description of the shooter: between 27 and 31 years old; 6 feet tall; 250 pounds; had a “heavy and thick” build; and had “freckles on upper cheeks and bridge of nose,” according to Reed. The height matches Fair’s, but the rest does not, Ullmann has argued: Fair was 18 at the time of the crime, is more slender, and does not have freckles.
Standing in the courtroom Tuesday, Fair said he is 6 foot 2 and weighs 160 pounds.
During one of many lengthy discussions about Fair’s complexion, the eyewitness said the shooter had “mottled skin” or “inconsistent pigmentation,” not necessarily freckles. His descriptions to cops included “freckles” as well as “mottled skin” or “bad skin.” In cross-examination, Doyle asked Reed if he would have asked different questions if he had known that the eyewitness described the suspect as having freckles or “mottled skin” or “bad skin.” Reed said yes—he would have “grilled him” more deeply about what he really meant.
Doyle also pointed out that the sketch was made long after the crime. Reed testified that the best time to draw a sketch of a suspect is within 24 to 36 hours of a crime; Reed met with the eyewitness 26 days after the crime.
Doyle emphasized that the sketch isn’t an exact likeness of the suspect.
Did the eyewitness ever say: “That’s spot on; that’s definitely the guy?” Doyle asked Reed.
“No,” said Reed.
Jurors went home for the day at 2 p.m. Attorneys plan to present closing arguments at 10 a.m. Wednesday.
Previous Independent stories on the case:
• Star Witness Describes Death Threat
• Video Reveals Police Powers Of Persuasion
• Top Cop Testifies He Never Forgot That Face
• The Sketch Doesn’t Match
• 2 Families, 2 Worlds—& A Quest For Justice
• Does Tashaun Fair Have Freckles?
• State Seeks Informant’s Name; Feds Seek To Hide It
• Defense Attorney Files Speedy Trial Motion In Mitch Dubey Murder Case
• Freckles, FBI Reports Spark “Innocent” Claim
• Supporters Emerge For Dubey Murder Suspect
• Dubey’s Killer Allegedly Panicked, Shot