Prosecutors and a defense attorney clashed over a new homicide division policy that restricts the flow of grand jury testimony and witness information to defense attorneys before DC Superior Court Judge Jason Park on Oct. 28.
Tyquan Jennings, 27, is charged with second-degree murder while armed, assault with a dangerous weapon, two counts possession of a firearm during a crime of violence, and carrying a pistol without a license. The charges stem from his alleged involvement in the fatal shooting of 19-year-old Vonte Martin and the injury of another person on the 3000 block of Stant Road, SE on Aug. 19, 2024.
During an earlier hearing, Jennings’ defense attorney, Nate Mensah, and a prosecutor had come to an impasse on the terms of a protective order that defined the scope of Mensah’s access to information from grand jury transcripts.
Protective orders are legally binding agreements between prosecutors and defense attorneys that establish safeguards for grand jury information and protect the identity of witnesses in the case.
Historically, prosecutors in the United States Attorney’s Office’s (USAO) homicide division have often shared information about grand jury testimony with defense attorneys through protective orders months in advance of trial.
During the hearing, a supervisor from the USAO explained to the court that the homicide division will no longer disclose grand jury materials to defense attorneys far in advance of trial unless they agree to a protective order that stipulates that any modification to the protective order must be approved by prosecutors. The protective order prohibits the defendant from knowing who testified to what in the grand jury.
The supervisor argued that it had become commonplace for defense attorneys to use their right to have sealed conversations with Judges when discussing their theory of defense to successfully petition for modifications to protective orders. Prosecutors, unable to participate in much of these sealed conversations, were unable to effectively argue against revealing the information, the prosecutor said.
“It may seem like a big shift but there are legitimate reasons why we are doing it,” the prosecutor said.
Judge Park initially expressed skepticism about the homicide division’s new policy, though his perspective on the issue shifted during the course of the hearing. He pushed back against prosecutors’ notion that the sealed conversations put them at a significant disadvantage during evidentiary hearings, arguing that they had a right to be heard by the judge to argue against the revelation of grand jury testimony information.
Judge Park said that he was less concerned by the new policy when he understood that it would not prevent defense attorneys from petitioning for Brady information — evidence in the control of prosecutors that may be exculpatory for the defense.
Mensah disagreed with the new policy which prevented him from sharing grand jury information with Jennings and required him to notify prosecutors about any violation of the protective order. Mensah argued that compelled disclosure raised Fifth Amendment concerns, and said several times throughout the hearing that he did not think it was appropriate for him to consent to the protective order in its current form.
Judge Park said Mensah’s objections raised very important theoretical questions but that he was not in a position to practically effect any orders on prosecutors, given that the defense was not entitled to grand jury testimony up until the trial.
“Fundamentally the prosecution is right that I do not have a…legal basis to compel the prosecution to disclose grand jury information,” Park said. “This whole history will have to be something that will have to be litigated.”
During the hearing Judge Park also denied Mensah’s motion to release Jennings and accepted Jennings’ waiver of his right to independent DNA testing.
“I don’t think any circumstances have changed with respect to that determination,” Park said.
Parties are slated to return Dec 15.
