Sunday, April 03, 2011

Murder charge is dismissed by Boston judge

Finds misconduct by prosecution -- another case of exculpatory evidence "accidentally" withheld

Murder charges against one of the men accused of killing two friends as they sat in a car on a Dorchester street following a party in 2007 were dismissed yesterday after a Suffolk Superior Court judge found that prosecutors had delayed turning over key evidence to the defense.

“I find the prosecutor’s misconduct in this case to be grossly negligent,’’ Suffolk Superior Court Judge Frank M. Gaziano said yesterday, according to a partial transcript of the proceedings. The delay “in my mind was unacceptable and the Commonwealth has not been well served in this case.’’

The highly unusual ruling means that prosecutors will have to bring their case against Donald Williams, 26, who police say is a gang member, for a second time to a grand jury in the fatal shootings of Jarrid Campbell and Jeffrey Jones.

Attorney Rosemary Scapicchio said she had asked that the charges be dismissed because Assistant District Attorney Masai-Maliek King had waited until weeks before the March 23 trial date to turn over exculpatory evidence, which is evidence that could help prove her client’s innocence. She said that evidence, much of which the prosecution had for at least two years, included fingerprint analysis and crucial witness information.

“We would have been able to investigate the exculpatory nature of [the evidence] and build a defense based on it,’’ Scapicchio said. “It’s unethical and unconstitutional of them to have exculpatory evidence in their possession and not turn it over.’’

Jake Wark, spokesman for Suffolk District Attorney Daniel F. Conley, said that King agreed that the charges should be dismissed without prejudice, so that prosecutors could re-indict Williams, who remains in state prison. He is serving eight to 10 years for a September 2007 shooting unrelated to the case.

Wark declined to describe the evidence or to say why it was not released sooner. He also said there was evidence favorable to the defendant and evidence that damaged his case. “Those documents were a fraction of the thousands of pages,’’ Wark said. “At the end of the day, the delay was unjustified. What’s important is that we took immediate action when we learned those documents had not been turned over.’’

He said that King learned in a meeting with Boston police detectives a few weeks ago that not all evidence had been turned over to the defense. King replaced another prosecutor who had initially been assigned to the case.

Wark declined to say whether it was prosecutors or detectives who had erred in providing the material in the discovery process. Elaine Driscoll, spokeswoman for the Boston police, said that investigators acted appropriately. “Our detectives provided the necessary information to the first prosecutor assigned to the case,’’ Driscoll said. “We are working closely with the DA’s office to ensure a similar incident does not occur again.’’

In court yesterday, Gaziano said that the fault lies with the prosecution. “Whether or not [King] didn’t receive the information from the police or whatever the circumstances were, it is the Commonwealth’s or the prosecutor’s absolute obligation to turn over discovery in a timely fashion,’’ he said. But, Gaziano said, he did not believe King had withheld evidence intentionally.

At King’s request, Gaziano ordered that Williams, hand over other, separate evidence he had received through his attorney and was keeping in his cell.

Wark said that prosecutors believe Williams has used that evidence to go after witnesses. Last week he was indicted on charges of witness intimidation after he allegedly told a third party to kill one of the witnesses, Wark said.

Scapicchio said it is customary for defendants to relinquish evidence when charges are dismissed.

She called the third party a liar who has asserted that three defendants in three separate counties have asked him to kill witnesses. “They’re trying to spin this to make it something it isn’t,’’ said Scapicchio. “The story is about them withholding documents in a double homicide because they violated my client’s constitutional rights.’’

Wark said prosecutors expect to indict Williams within the year, which could be difficult, given that detectives struggled to gather information after the killings and many witnesses testified before a special grand jury under court orders. “We expect it will be a challenge, like most of our cases, but we are confident we will be able to do so,’’ Wark said.

The other man charged in the killing, Stanley Earl Jenkins Jr., is scheduled to stand trial on murder charges in December.

Williams is expected to be tried next week in another, unrelated shooting that took place in November 2007.

Original report here

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