A Fairfax County judge has taken law enforcement to task for a nine-month delay in disclosing information helpful to the defense of a man charged with first-degree murder.
“The Commonwealth buried its head in the sand,” wrote Circuit Judge Thomas P. Mann in a Nov. 4 opinion in which he determined to give the jury a rare adverse inference instruction pointing out the prejudicial delays by the prosecution.
Stung by Mann’s ruling, Fairfax County Commonwealth’s Attorney Steve Descano sought to cast blame on his predecessor. But former Commonwealth’s Attorney Ray Morrogh and his chief deputy denied any transition difficulties that would have led to the discovery problems highlighted by the judge. The case was handled by the same attorney before and after the January change of administration, they said.
Mann’s opinion is Commonwealth v. Gonzalez (VLW 020-8-125).
The case arose from the fatal shooting of a man outside a Springfield convenience store on Thanksgiving of last year. Kelvin Gonzalez’ lawyers say he acted in self-defense, threatened by a larger man carrying a box-cutter type knife.
The victim was “the neighborhood bully,” said Robert C. Whitestone of Fairfax, who represents Gonzalez along with Tiffany Welch.
At issue was a lengthy delay and then resistance from the prosecutor’s office about turning over information on a witness to the shooting. The witness told the investigating officer that the shooting victim had displayed the knife and that Gonzalez had warned the knife-wielding man that he had a gun.
“Don’t get close, I have a gun,” Gonzalez reportedly said, according to the witness’ account to the detective.
The officer heard the witness’ account on the day of the shooting, Nov. 28, according to the judge’s opinion. The officer’s supplemental report with that information was not submitted until July 8, the judge said. The prosecutor provided a redacted version of the supplemental information on Aug. 18. The witness information was in two sentences on pages 96-97 of a 99-page document production, Whitestone said.
“It’s buried in this 99 pages of stuff. Frankly, it was irritating,” Whitestone said Nov. 11. “I could have missed it. I could have skimmed over it.”
The Supreme Court of Virginia last fall rejected a Virginia State Bar recommendation for language in the ethics rules requiring prosecutors to disclose “particular evidence” that could be of use to the defense.
Gonzalez’ lawyers asked for the witness’ contact information, but the commonwealth initially refused to provide it, the judge said. Whitestone said prosecutor Jessica Greis-Edwardson responded, “I don’t have to tell you that.”
“I thought that it was an arrogant comment, given the nature of the information,” Whitestone said.
Greis-Edwardson argued at an Oct. 23 hearing that there was no Brady violation because the information was provided in time for the defense to make use of it at the Jan. 5 scheduled trial, Mann said. Although she disclosed the witness’ phone number and date of birth after the hearing, neither the defense team nor the police could locate the witness. “He appears to be in the wind,” Mann concluded.
Also after the hearing, the prosecution submitted the knife recovered from the scene to the state lab for fingerprint and DNA analysis. Addressing both the delayed witness information and lab tests, Mann said he had to decide the proper remedy for what he concluded was a Brady violation for late disclosure of exculpatory evidence.
Search for remedy
The case left the court “figuratively scratching its head,” Mann wrote.
“The Commonwealth buried its head in the sand,” Mann continued. “This witness was bad for their case. They will never call this witness. Therefore, the detective did not advise the Commonwealth of his existence and never bothered to follow up with this witness…. Figuring it would simply provide a name and nothing more, 10 months later, the Commonwealth unapologetically maintains they have done their duty.”
Mann mocked the prosecution’s position as, “There is no problem here. There is nothing to see. Move along.”
The judge added, “Here is the problem: we do not abide sham trials. We do not wink and nod at fairness and justice. At least we should not do those things. If just outcomes are the correct outcomes, whatever the result, it must be through a process that views prosecutorial obligations as hallowed rather than an inconvenient but necessary duty.”
Quashing the indictment would be inappropriate, the judge concluded. Brady violations typically bring a new trial, not a blanket acquittal, he said. Instead, Mann said he would allow use of a jury instruction describing the commonwealth’s breach of its disclosure duty.
He described what a law review author termed a “fair trial remedy” to attempt to correct the trial process. He wrote a jury instruction that described the circumstances of the missing witness and concluded with an inference:
“The jury should infer that this testimony, had it been disclosed to the Accused in a timely fashion, would have been favorable to his claim of self-defense which could lead to the acquittal of the Defendant and the dismissal of this indictment.”
Asked for comment, Descano’s office responded with a statement from a spokesperson.
“Mr. Descano takes any suggestion of a Brady Act violation very seriously and would not tolerate our participation in such an action. Our prosecutor turned over evidence immediately as they became aware of it,” the statement said.
The prosecutor’s office said it learned Nov. 10 – after Mann’s opinion – that detectives informed the commonwealth’s attorney’s office of the existence of the witness statement in November 2019, when Morrogh was still in office.
Criticism of predecessor
Descano’s statement continued with criticism of Morrogh’s office:
“What you see here is a remnant of the poor communication that existed in this office before January 1. Information wasn’t conveyed, things were never written down, and major cases were often not assigned for weeks and case files not even created,” Descano’s statement said.
Morrogh’s office did not allow a transition, Descano’s spokesperson claimed.
“We are now more than ten months into Mr. Descano’s administration and we’re still uncovering landmines in carryover cases as a result of that lack of transition,” the Descano statement said.
“We are moving forward with the case with diligence and thoroughness. The judge’s action in this order remedied potential issues and the defendant will have a fair trial,” the statement said.
Morrogh said the complaint about refusing transition was “just nonsense.” He said Descano’s transition leader met with Morrogh’s chief deputy, Casey Lingan, before the change of leadership. Morrogh said his office provided answers to a list of 10 questions from Descano’s team.
“The prosecutor handling this case was assigned the case before the transition in January and remained after the transition as Mr. Descano’s deputy,” Lingan said in a statement. “Simply put, there was no ‘transition’ needed in this case,” Lingan added.
Morrogh was more pointed in his response: “Instead of just owning up to it, he’s trying to shift the blame to really innocent people,” he said.