In an opinion (PDF) published Thursday morning, the District of Columbia Court of Appeals found that the government's handling of Brady materials in a 2008 murder case was "troubling," but not enough to reverse a conviction.
A District of Columbia Superior Court jury convicted Jamel Mackabee in April 2008 of second-degree murder in the death of Taleshia Ford, who was fatally shot inside a northwest Washington club. Prosecutors had alleged that Mackabee was attempting to shoot a bouncer but hit Ford instead.
On appeal, Mackabee's attorney, Tammy Sun of the D.C. Public Defender Service, argued that the trial judge erred in failing to penalize prosecutors for revealing potentially exculpatory evidence just before trial.
The three-judge panel found that while the U.S. attorney’s office’s handling of Brady materials in Mackabee’s case “is troubling in a number of respects,” it wasn’t enough to reverse the conviction.
The U.S. attorney’s office, through a spokesman, declined to comment. A representative of the Public Defender Service could not immediately be reached.
Less than a week before Mackabee’s trial in April 2008, prosecutors turned over a videotaped statement from a witness describing the alleged shooter to police on Jan. 20, 2007, the day of the shooting. The witness’ description did not match Mackabee, and District of Columbia Superior Court Judge Frederick Weisberg “chastised” prosecutors for failing to turn over the tape, according to the appellate opinion.
According to the opinion, Mackabee’s attorney at trial tried to argue that this was a case of mistaken identity and also that Caldwell might have fired a gun as well during the fight. The gun that killed Ford was never recovered.
But Weisberg denied Mackabee’s request for sanctions or a dismissal because prosecutors had included a police officer’s handwritten notes of the witness’ statement. The appellate judges agreed with Weisberg that the government’s behavior had not “amounted to a true Brady violation.” Mackabee’s attorney was able to make use of the videotape at trial, they wrote, and Mackabee did not “suggest how…his counsel could have used its contents any more effectively at trial.”
Mackabee also argued that there was a second Brady violation when prosecutors revealed just before the trial that another witness had identified two other men from photos as possible shooters. Prosecutors gave Mackabee’s counsel the name of the witness, but his attorney couldn’t locate the witness before the trial.
The appeals court again agreed with Weisberg’s decision not to order a continuance or sanctions against the government. Although the “quasi-identification” was exculpatory, the appellate judges wrote that some information on the witness in question had been included in the government’s evidence packet. The appeals court also found that because the witness had given police a description of a shooter that in part matched Mackabee, Mackabee’s attorney hadn’t made a convincing argument that this witness could have changed the outcome of the case.
Judges John Fisher, Phyllis Thompson and Vanessa Ruiz heard the case.