ROANOKE — In a case with hundreds of exhibits and more than a thousand court filings, it was a filing in a different court drama that turned the trial on its head.
It was Oct. 15, the final day of jury selection in the trial USA vs. Marcus Jay Davis and others — a case addressing alleged gang activity in Danville — when defense attorneys were alerted to an important development in a related case.
The current trial involved alleged members of the Rollin’ 60s Crips street gang in Danville, and another one scheduled for January involves alleged members of the Milla Bloods gang in the city.
One of the defense attorneys in that Milla Bloods case, Roanoke-based Paul Beers, sent an email to federal prosecutors that day, Oct. 15, alerting them to missing discovery (information the prosecution has on the defendant’s case). In reading a federal grand jury transcript, Beers noticed Assistant U.S. Attorney Heather Carlton refer to a different grand jury — a state grand jury.
Beers and other defense attorneys in the case had not been given this apparent state grand jury testimony, but it was clear from Carlton’s statement prosecutors were aware of it. Beers’ letter to Carlton and fellow Assistant U.S. Attorney Ron Huber asked them to provide it to him and other attorneys in the Milla Bloods case.
Word of that letter reached defense attorneys in the Rollin’ 60s case, and they quickly realized they also had not been given transcripts of state grand jury interviews.
Defense attorneys in the Rollin’ 60s case — there were 14 of them representing eight co- defendants — raised this issue in court Oct. 16, the day of opening statements. Carlton made her opening statement, as did some of the defense attorneys, but the progress stopped there.
Defense attorneys, including Aaron Houchens, spoke at length about how concerning it was these transcripts were missing.
“It raises the question of, ‘What else is out there?’” Houchens said.
Prosecutors, including Danville Commonwealth’s Attorney Michael Newman, said they were confident that there were only two transcripts they hadn’t provided.
“They are entitled to this information 100%,” Carlton said in court. “I cannot apologize enough to the parties and defendants.”
As Newman — who had conducted the state grand jury in question — headed back to Danville and started looking into the missing files, it quickly became evident there was indeed more discovery that had not been provided.
Discovering the discovery
The formation of the state grand jury in question dates back to 2012, when Newman and Pittsylvania County Commonwealth’s Attorney Bryan Haskins petitioned the Virginia Supreme Court to form one, Newman wrote via email. The reason for forming the grand jury, Newman said, was to investigate a variety of criminal activity in the Danville area.
Newman and Haskins have formed these state grand juries off and on for the past seven years, investigating a series of specific allegations of crimes in the Danville area. Some of the investigations, Newman said, led to indictments while others relate to unsolved cases the Danville Police Department is investigating. The grand jury issued one report, Newman said, regarding an investigation into allegations of fraud at a Western Union office in Danville.
Testimony to this grand jury always was recorded, Newman said. Not everyone who was subpoenaed ended up testifying before the grand jury, Newman wrote in an affidavit to the court, and his office did not keep a record of witnesses who were subpoenaed, or whether those witnesses had ended up testifying.
“In other words, we did not document whether a witness appeared, was interviewed, or testified,” Newman wrote in the affidavit.
When asked about this lack of documentation, Newman wrote via email grand jury testimony is recorded and lists of subpoenas also are kept, but there’s not a master document that records all of the information. He said his office is working on a system to create a spreadsheet to track who is subpoenaed, who testified, who appeared and who didn’t appear.
In a court filing Oct. 24, Urbanski said even though policy of Newman’s office not to maintain these records is “inadvisable” and possibly negligent, it “does not demonstrate bad faith.”
As Newman’s office looked more and more into the state grand jury documents, they found not only the original two transcripts but also found audio for 13 more interviews that might relate to the current case, according to Urbanski’s Oct. 24 filing. One of those newly discovered interviews was with Tenikqua Fuller, one of the co-defendants in the case.
Defense attorneys, many of them livid, asked in court and via court filings Urbanski dismiss the charges against their clients because of the prosecution’s failure to provide these potentially valuable pieces of information.
Though Urbanski didn’t dismiss the charges, prosecutors offered favorable plea deals over that weekend, and seven of the eight co-defendants took them.
The judge responds
Urbanski’s extensive Oct. 24 response addressed the attorney’s requests. He detailed the testimony from all 15 of the newly supplied grand jury transcripts and declined to dismiss the charges, stating, “the bulk of the information produced was immaterial, cumulative, and speculative and was not prejudicial to the defendants.”
Urbanski outlined the “necessary, albeit unusual” fashion he intends to proceed in this case.
The jury is scheduled to return Monday, where just one defendant — Marcus Jay Davis — will face the Danville-area jury.
Urbanski wrote he is going to tell the jurors — who will have been out of the courtroom for almost two weeks — the delay was because of the prosecution’s late disclosure of state grand jury transcripts.
Urbanski also will allow Davis’ defense attorneys to make an additional opening statement solely to address the late discovery. The attorneys will not be allowed to speak about anything else.
Some of the witnesses interviewed by the state grand jury are included on the prosecution’s list of witnesses it might call in this current trial. As a sanction on the prosecution, Urbanski ruled prosecutors may not call some of these witnesses in the current trial to testify about the topics they testified about to the state grand jury. Prosecutors also are forbidden from introducing certain exhibits that pertain to this late grand jury testimony, Urbanski ruled.
Reform and repercussions
It’s hard to quantify just how often prosecutors withhold discovery — either intentionally or unintentionally — from defense counsel, Joe Luppino-Esposito, of the Due Process Institute said. Luppino-Esposito is the director of the Rule of Law Initiative for the Due Process Institute, which is a nonprofit looking for ways to ensure fairness in the criminal justice system.
Prosecutors face a challenge in figuring out what to supply to defense attorneys, Luppino-Esposito explained.
“A lot of prosecutors aren’t going to know what’s material to a defendant’s case because they don’t know what a defendant’s case is going to be,” he said.
The Danville case underscores the importance for better policies when it comes to discovery, Luppino-Esposito said. There are two main areas where reform is needed, he said.
First, there needs to be a clearer set of standards for prosecutors as to what they need to provide to defense counsel. Luppino-Esposito pointed to an open-file system where the prosecution simply provides everything it has so defense attorneys can sift through and see what is relevant to their case.
Second, Luppino- Esposito said there need to be set repercussions for prosecution teams that withhold discovery, whether it’s done intentionally or not. State supreme courts around the country, including Virginia’s, have been examining ways to set standards for discovery in trials, Luppino-Esposito said, and the Danville case serves as another example of why these are needed.
“The big takeaway,” Luppino-Esposito said, “is that there’s definitely reform needed.”