In court and outside of it, attorneys embroiled in Danville’s federal court case involving the Rollin’ 60s Crips said they had more evidence and documents to sift through than with any case they’d ever done.
Jimmy Turk, a longtime defense attorney in southwest Virginia, said after his client took a plea deal that this case had the most discovery — that is, pertinent information the prosecution must provide to defense attorneys — of any case he’d ever seen.
“At the end, this is going to prove to be the most massive amount of discovery in a case prosecuted across the country,” Turk said in an interview.
With so much to go through, legal experts said it’s easy to understand why there ended up being a problem with getting all of the discovery to the defense attorneys. Those experts said they see both sides of the situation — it was difficult for an overworked Danville commonwealth’s attorney’s office to meet the demands of such an expansive case, but the office, headed by Michael Newman, still should have done better at performing such a basic task as keeping records.
“If Newman performed like this in a private-sector corporate setting, he’d be fired or at least demoted,” Darryl Brown, of the University of Virginia School of Law, wrote in an email.
Newman, when contacted by email for this story, replied with a short comment: “As I told the Court. I made a mistake. I humbly admit it, apologize for it, and will learn from it.”
He admitted in court filings his office did not transcribe key testimony to state grand juries in recent years. This testimony ended up being important to the defense in the Rollin’ 60s case, and when it came out — just as the trial began — that there were many transcripts that hadn’t been provided to the defense, federal prosecutors offered favorable plea deals to many of the defendants.
Seven of the co- defendants took these plea deals after the discovery mishap, and will be sentenced to at most 15 years in prison. The one defendant who did not accept a plea deal, Marcus Jay Davis, was found guilty of racketeering crimes that could earn him a life sentence.
Chief Judge Michael Urbanski issued a ruling Nov. 15, saying he believed Newman acted with “gross negligence” in the case, but did not believe the prosecutor’s office purposefully withheld discovery.
Brown, the O.M. Vicars professor of law at the University of Virginia School of Law, said it’s incredibly unusual to see a law office make such a mistake.
“Since the court concluded that Newman and the prosecution did not act in ‘bad faith,’ this huge mess looks more like either incompetence or an amazing lack of care and diligence in doing a central, basic part of the prosecutor’s job in a very significant case, one that state and federal prosecutors spent a lot of time and money developing,” Brown wrote. “It’s pretty shocking for someone who’s been a lawyer for 20 years and commonwealth’s attorney for 10.”
Urbanski ruled Newman’s office violated Virginia law, which requires court reporters transcribe testimony to a multi- jurisdiction grand jury and those transcriptions be readily available to attorneys. Newman admitted in court many witnesses’ testimony was not even transcribed, let alone made available to prosecutors.
Brown said the consequence for violating this statute is just what Urbanski did: He sanctioned prosecutors in the case. He ruled some of the prosecution’s witnesses would not be allowed to testify in the trial, and also delayed the trial in order to give defense attorneys a chance to go through the newly discovered transcripts.
Michael Doucette, the executive director of the Virginia Association of Commonwealth’s Attorneys, said attorneys can’t just violate state statutes without penalty. Had Urbanski found Newman or federal prosecutors were in contempt of court, they could have been sentenced to as much as 10 days in jail. Urbanski didn’t find the violations to be quite that serious. He also could have dismissed all charges against the defendants, which he did not do. The chief judge did, however, dismiss a charge against Davis that carried a mandatory life sentence.
Doucette, formerly the Lynchburg commonwealth’s attorney, said he hasn’t spoken with Newman and didn’t want to comment on the specifics of what went on in this case. He pointed to a 2011 article in the Northwestern University Law Review titled “The State [Never] Rests,” which detailed ways in which overwhelming caseloads for prosecutors harms not only their ability to do their job, but also the ability for defendants to get fair trials.
“We have been fighting, and losing, this resource battle with our legislative bodies for decades,” Doucette wrote in an email, adding defense attorneys also have been fighting the same battle.
Joe Luppito-Esposito, the director of the Rule of Law Initiative for the Due Process Institute in Washington, D.C., said Virginia and other states should adopt laws that make it easier for prosecutors to share all of their discovery with defense attorneys. He also said there needs to be clear penalties for prosecutors who violate those laws.
“If Virginia adopted an open discovery rule and coupled it with clear penalties for the government when it violated this rule, there would be no question as to what the end result in a situation like this ought to be,” he wrote.
Brown said he sees this case as an example of what can happen with elected prosecutors as opposed to those with private firms.
“But to say the least, elected officials don’t face the same kind of performance evaluations,” he said. “Is this the kind of thing that will prompt Danville citizens to vote for a different, more competent prosecutor next time? We’ll see.”
Newman first was elected commonwealth’s attorney in 2009, and was reelected in 2013 and 2017. He is up for reelection again in 2021.