Update – July 29, 2014
More withheld information has been discovered by defense attorneys, according to reports by Jason Riley at WDRB. Last week, Dejuan Hammond’s lawyers filed 44 pages of evidence in court asserting that much of it was “undeniably exculpatory”. Riley reports:
“This is the third time this year that the defense has found or received evidence in the 2009 murder case that they say was concealed and purposefully withheld by the Jefferson Commonwealth’s Attorney’s Office.”
Riley’s live tweets from a hearing in the case today are available at his Twitter account here. Riley says that the judge will rule on the defense motion to dismiss the case at a later date.
Update – June 18, 2014
Attempts by the defendant in this case to put on testimony that might reveal how the state came to suppress evidence are being resisted by the Commonwealth’s Attorney’s office, despite its acknowledgement that something went very wrong. According to WDRB.com,
In a motion filed last week, prosecutors acknowledge that they failed to turn over a summary of an interview with Hammond’s former girlfriend, Princess Bolin, until it was discovered after Bolin had testified, but asked a judge to quash the subpoena seeking testimony from [Commonwealth’s Attorney Thomas] Wine about what happened.
The Commonwealth’s Attorney’s office told media that, “while it might be inviting to want to know the reason that this happened, the reason it happened is not relevant” to the issue before the court, which is whether the case should move forward to another trial or be dismissed:
[The author of the state’s motion] said a hearing with Wine, the former prosecutor, Tom Van De Rostyne and the detective in the case, Louisville Metro Police Detective Roy Stalvey, would only allow Hammond’s defense to “make irrelevant accusations in person against the former prosecutor.”
The state’s argument seems plain wrong in light of the fact that the prosecution’s conduct in this matter could very well determine whether or not the judge dismisses the case, and whether or not he does so with prejudice (meaning the defendant could not be retried). This happens rarely – but in cases involving serious misconduct on the part of the prosecution, it does happen.
Original Post – April 16, 2014
Jefferson Circuit Court Judge Angela McCormick Bisig declared a mistrial in a murder trial yesterday after it came to light that former prosecutor Tom Van De Rostyne had suppressed an interview with the defendant’s former girlfriend. The interview contained details of a possible alibi, but was never disclosed to defense counsel. WBRD.com reports:
[T]he current prosecutors on the case acknowledged it appeared the evidence – a summary of an interview with Hammond’s former girlfriend – had been tampered with and withheld inappropriately.
“It’s one of the more disappointing experiences, to be honest with you, that I’ve had in the nearly 30 years I’ve been prosecuting here in this community,” said Jim Lesousky, assistant commonwealth attorney.
Wine fired Van De Rostyne after he was elected in 2012. Van De Rostyne had run against Wine and lost in the primary.
Now, Wine said his prosecutors will look at every case still pending that Van De Rostyne handled or screened and make sure the evidence given to them by police in the case was also turned over to the defense.
Van De Rostyne, now with the Attorney General’s office, declined to comment…
On Monday, prosecutors acknowledged the report of an interview with Princess Bolin was mistakenly not turned over – a realization they discovered in recent days as Bolin finished testifying in the case – but suggested it was inadvertent and there were other remedies besides a mistrial.
At the time, Judge Bisig denied a motion for a mistrial but gave the defense the day to investigate the interview summary and allowing them to question both Bolin and the lead investigator about it.
On Tuesday morning, Hammond’s defense team renewed their objections to the trial.
“It looks like this was a deliberate attempt to conceal this evidence,” said O’Connell. “This trial is fundamentally unfair.”
O’Connell added that she was “offended they are not making a motion to dismiss this case right now.”
Lesousky repeatedly said he took responsibility for failing to turn the evidence over, calling it “indefensible,” and saying it was one of his worst days as a prosecutor.
Bisig seemed most troubled by the fact that the interview with Bolin included a possible alibi for Hammond. Bolin told police in 2009 that she and Hammond were at the mall when Troya Sheckles was shot to death in Shelby Park, according to the summary.
Other interviews in which Bolin pointed the finger at Hammond were turned over to the defense.
Shouse and defense attorney Annie O’Connell said their questioning of Bolin and entire defense likely would have been different if that interview had been properly given to attorneys.
When Bisig asked how it would be different, they talked with her at the bench. After a break, Bisig came back and ordered the mistrial. The next court date is set for June.
Lesousky told Bisig and reporters he was unsure why the report wasn’t turned over sooner. He said he talked with Van De Rostyne, the initial prosecutor on the case, who also didn’t know why the evidence was withheld.
“It doesn’t matter if it was intentional or unintentional,” Lesousky said. “I accept responsibility.”
Shouse told Bisig the information was withheld on purpose and pointed out that the evidence right before and after the interview were given to the defense but there is a blank spot where the Bolin interview should be.
Commonwealth’s Attorney Tom Wine, who won his seat in a race against Van De Rostyne in 2012, said his office will look at all pending criminal cases that were assigned to Van De Rostyne to “determine if there was any evidence not turned over to defense attorneys.” He told WBRD.com:
“We are going to make sure there are no other time bombs out there,” Wine said in an interview Tuesday after a Jefferson Circuit Court judge declared a mistrial in a case Van De Rostyne had once handled.