ROANOKE — The statement federal prosecutors included in the court brief was short and to the point — the blame for the upheaval lay at the feet of Danville Commonwealth’s Attorney Michael Newman.
“As a result of these failures, Mr. Newman has withdrawn from the federal prosecution team,” reads a footnote in Assistant U.S. Attorney Michael A. Baudinet’s brief, filed Friday afternoon in U.S. District Court in Roanoke.
At issue are transcripts of multi- jurisdictional grand jury hearings the Danville prosecutor empaneled years ago to look at violent crime in the region. These transcripts involve testimony from witnesses and a defendant in the current federal racketeering and murder case centered on alleged gang activity in Danville.
Yet defense attorneys representing the eight defendants learned of the transcripts only recently, after a jury had been picked and opening statements on what the evidence will show had been made. The documents should have been turned over during discovery, the act where the prosecution hands over pertinent information it has on the defendant’s case.
After looking for these transcripts, Assistant U.S. Attorney Heather Carlton said in court Thursday there are tapes of other grand jury testimony that need to be transcribed and distributed to attorneys in this case.
Attorneys asked Chief Judge Michael Urbanski to make a ruling Friday about where to go next — the options are either to drop the charges, declare a mistrial or delay the trial to give defense attorneys enough time to study the new information and decide how it fits into their strategy. Urbanski had not made a ruling by Friday evening.
Newman announced he was stepping down from the federal prosecution team Friday afternoon in a brief that outlined the process of putting together the multi-jurisdictional grand juries, which were made in 2015 and again in 2016 to investigate shootings in the Danville area. He admitted he did not provide “any of the recordings to these special grand juries to the prosecution team in this case.”
He wrote he “mistakenly believed they were focused on investigations irrelevant” to the current case.
Soon after that filing, Baudinet argued for a brief delay in the trial instead of a more drastic measure such as a mistrial or a dismissing the charges. In his brief, Baudinet wrote it’s not too late for defendants to review the new information and include it in their defense.
“The United States acknowledges it has made an unintentional, but serious, error in discovery,” Baudinet wrote. “That error requires a remedy. But the drastic remedy Defendants seek is not supported by law.”
Notable in Newman’s filing is the admission recordings of testimony, a few transcripts and subpoenas for witnesses are the only existing records of the special and multi-jurisdictional grand juries ever taking place.
“Similar to my office’s practice of not keeping a list of witnesses that appear before the [multi- jurisdictional grand jury], we did not keep a list of special grand juries or the witnesses,” he wrote. “I have gone back through the list of subpoenas issued to determine what special grand juries I convened during the relevant time period. I now know of two special grand juries that investigated homicides.”
One legal expert contacted by the Danville Register & Bee noted while state law does not require a list of witnesses called to testify, it does require the recordings of those proceedings to be transcribed.
“Virginia law envisions that any testimony presented to a special or multi-jurisdictional grand [jury] will be recorded and transcribed,” former Lynchburg prosecutor Michael Doucette explained in an email.
Register & Bee reporter Quashon Avent contributed to this story.