ROANOKE — After federal prosecutors failed to provide an unknown number of court documents to defense attorneys, the judge is considering whether to delay the trial or even dismiss the charges.
Earlier this week, defense attorneys in a federal racketeering and murder trial centered on alleged gang activity in Danville learned that prosecutors had not supplied two state grand jury transcripts with testimony from witnesses in the current 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. She was adamant Wednesday and Thursday that this is an honest mistake on the part of prosecutors.
The process of transcribing these tapes will go slowly, Carlton said. She proposed delaying the start of evidence to next Wednesday and having a hearing Tuesday morning after attorneys have had time to read and digest the content of these transcripts.
Defense attorneys, many of them livid, asked for more decisive action. Attorneys for each of the eight defendants — alleged to be members or associates of the Rollin’ 60s Crips — asked for Chief Judge Michael Urbanski to dismiss the indictments against their clients. Urbanski was irked, calling the missing discovery an “extraordinary development.”
He did not think, however, that it merits dismissing the charges.
“To dismiss, this needs to shock the conscience and be so outrageous that it would be beyond the pale,” Urbanski said.
He could still call a mistrial, though he said he’s hesitant to do so after they have already sworn in a jury in this case. Urbanski said he would issue a ruling before 5 p.m. today.
One of the new tapes in question is from grand jury testimony that one of the defendants in the case — Tenikqua Fuller — gave as a witness in regard to the 2017 shooting death of 16-year-old Nitaya Adams in Danville. Carlton said this shooting is not part of their case.
Defense attorney Jimmy Turk, representing defendant Kevin Trent, angrily addressed that.
“It may not be important to you, but it is to us,” he said.
As defense attorney Tony Anderson — representing lead defendant Marcus Davis — pointed out, lawyers have already presented their opening statements. In these statements, attorneys lay out their theories of the case for the jury. Anderson argued that if these new documents change a lawyer’s strategy, it’s too late to incorporate that into statements made to the jury.
One attorney who chose not to make an opening statement was Corey Diviney, who represents Fuller. If this newly found transcript of Fuller’s testimony reveals anything major, Diviney said in court, he’s already missed his chance to speak to the jury.
Defense attorneys said they were alerted to the missing transcripts when an attorney in a parallel case — one where the federal government has filed similar charges against other alleged gang members in Danville — emailed lawyers in this current case saying federal prosecutors had not supplied these grand jury transcripts to him as required.
Defense attorneys and Urbanski were both particularly critical of Danville Commonwealth’s Attorney Michael Newman, who is acting as special counsel for the prosecution in the case. Newman operated the grand jury hearings in question, attorneys pointed out, meaning he should have known about their existence and informed Carlton and included them among the discovery, which is the act of the prosecution handing over information it has on the defendant’s case.
This is not the first time prosecutors have supplied discovery late. Just two days before trial was supposed to begin, prosecutors shared a key three-hour video clip with defense attorneys. The video is interrogation of Deshawn Anthony, the alleged leader of the Milla Bloods gang in Danville. The clip, as described in court, shows Anthony explaining the command structure of the gangs in Danville.
That last-minute piece of discovery, combined with the grand jury transcripts, had both Urbanski and defense attorneys harshly scolding prosecutors during Thursday’s hearing. Microphones in the courtroom often proved unnecessary as attorneys and Urbanski raised their voices in frustration.
It was the tensest in a series of slow-moving and contentious days in court, and Urbanski summed the trial itself up Thursday by saying, “nothing seems to be easy.”