Federal prosecutors have cited Danville Commonwealth’s Attorney Michael Newman for missing witness transcripts that have disrupted a trial of alleged gang members.
“As a result of these failures, Mr. Newman has withdrawn from the federal prosecution team,” according to Assistant U.S. Attorney Michael Baudinet’s brief, filed Friday afternoon in U.S. District Court in Roanoke.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 several years ago to look at violent crime in the area. These transcripts involve testimony from witnesses and a defendant in the current federal racketeering and murder case centered on alleged gang activity in Danville.
Defense attorneys representing the eight case defendants learned of the transcripts earlier this week, after a jury had been picked and opening statements on what the evidence will show had been made. The documents should have been provided during discovery, the process where the prosecution gives pertinent case information to the defense.
After looking for these transcripts, Assistant U.S. Attorney Heather Carlton said in court Thursday that 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 dropping the charges, declaring a mistrial or delaying the trial . Urbanski had not made a ruling by Friday evening.
Newman announced he was stepping down from the federal prosecution team Friday in a brief that outlined the process of assembling the multi-jurisdictional grand juries in 2015 and 2016 to investigate shootings in the Danville area. Newman admitted that he did not provide “any of the recordings to these special grand juries to the prosecution team in this case.”
He wrote that he “mistakenly believed they were focused on investigations irrelevant” to the current case.
Defendants in the case, alleged to be members or associates of the Rollin’ 60s Crips street gang, are being tried on a host of racketeering charges stemming from a string of violent gun and drug-related crimes in Danville.
One of the missing tapes in question is from grand jury testimony that one of the defendants gave as a witness in regard to the 2017 shooting death of a 16-year-old boy in Danville.
Federal prosecutor Carlton said in court Thursday that there are tapes of other grand jury testimony that need to be transcribed and distributed to attorneys.
The process of transcribing these tapes will go slowly, Carlton said, and she proposed delaying the start of evidence to next Wednesday and having a hearing Tuesday after attorneys have had time to read and digest the transcripts.
Notable in Danville Commonwealth’s Attorney Newman’s filing is the admission that 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.”
Defense attorneys asked for Chief Judge Michael Urbanski to dismiss the indictments against their clients. Urbanski called the missing discovery an “extraordinary development,” but said it did not merit dismissing the charges.
“To dismiss, this needs to shock the conscience and be so outrageous that it would be beyond the pale,” Urbanski 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.
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 them saying federal prosecutors had not supplied these grand jury transcripts to him as required.